SKOL BREWERIES LTD, MUMBAI V. ADDL CIT RG 8(3), MUMBAI

ITA 7123/MUM/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 93049 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 7 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-07-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: K
• Next Hearing Date: 29-04-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 29-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: R R VORA
• Keywords: Capital asset; Depreciation; Transfer pricing; Rule of consistency; Non-deduction of tax; Commercial expediency
• Section: 143(3); 32

Judgement Text

K IN THE INCOME TAX APPELLATE TRIBUNAL K BENCH, MUMBAI BEFORE SHRI B.R. BASKARAN, ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA, JUDICIAL MEMBER ./ I.T.A. NO. 7123/MUM/ 2012 ( / ASSESSMENT YEAR : 2008-09 SABMILLER INDIA LIMITED, (FORMERLY SKOL BREWERIES LIMITED), UNIT NO. 301-302, THIRD FLOOR, DYNASTY BUSINESS PARK, B WING, ANDHERI KURLA ROAD, ANDHERI (EAST), MUMBAI 400 059. / VS. ADDITIONAL COMMISSIONER OF INCOME TAX RANGE 8(3), AAYAKAR BHAVAN, MUMBAI. ./ PAN : AAICS2238R ( / APPELLANT ) .. ( / RESPONDENT ) APPELLANT BY SHRI R.R. VORA & SHRI HEMEN CHANDARIYA RESPONDENT BY : SHRI G.M. DOSS - CIT / DATE OF HEARING : 25-6-2015 / DATE OF PRONOUNCEMENT : 03-07-2015 [ !' / O R D E R PER B.R. BASKARAN, A.M. THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ASSESSMENT ORDER DATED 28-9-2012 PASSED BY THE A.O. U/S 143(3) OF THE ACT IN CONFORMITY WITH THE DIRECTIONS ISSUED BY THE DISPUTE RESOLUTIO N PANEL -II, MUMBAI (DRP). ITA 7123/M/2012 2 2. THE ASSESSEE IS ENGAGED IN THE BUSINESS OF MANUF ACTURE AND SALE OF BEER UNDER THE BRAND NAMES HAYWARDS & RCPL. THE ASSESSEE IS AGGRIEVED BY THE DECISION RENDERED BY LD DRP ON VARIOUS ISSUE S. GROUNDS NO. 1 TO 3 ARE GENERAL IN NATURE, HENCE NO NEED OF ADJUDICATIO N. 3. IN GROUND NO. 4, THE ASSESSEE IS AGGRIEVED BY TH E DECISION OF LD. DRP IN CONFIRMING ADDITION OF RS. 15,72,053/- RELATING TO THE CLAIM OF CLUB MEMBERSHIP FEE, WHICH INCLUDED ENTRANCE FEES AND SU BSCRIPTIONS PAID FOR ACQUIRING MEMBERSHIP IN CLUBS. THE A.O. DISALLOWED THE ABOVE AMOUNT ON THE GROUND THAT THE ADMISSION FEE GIVES BENEFIT OF ENDU RING NATURE AND HENCE THE SAME IS CAPITAL EXPENSE IN NATURE. THE A.O. HAS ALS O RELIED ON THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASES OF CIT VS. W .I.A.A. CLUB LTD,136 ITR 569 AND ALSO THE DECISION RENDERED IN THE CASE OF C IT VS. DINERS BUSINESS SERVICES PRIVATE LIMITED, 263 ITR 1. THE LD. DRP CO NFIRMED THE SAME. 4. AT THE TIME OF HEARING BEFORE US, THE LD. REPRES ENTATIVES OF BOTH SIDES AGREED THAT AN IDENTICAL ISSUE WAS CONSIDERED BY TH E CO-ORDINATE BENCH IN THE CASE OF SKOL BREWERIES LTD. VS. ACIT (CLAIMED TO BE PRESENT ASSESSEES OLD NAME) IN ITA NO. 6175/MUM/2011 DATED 18-01-2013 [(2 013) 142 ITD 49] AND THE SAME WAS DECIDED IN FAVOUR OF THE ASSESSEE AS UNDER:- WE FURTHER NOTE THAT SIMILAR DISALLOWANCE MADE BY THE ASSESSING OFFICER FOR THE AYS 2004-05 TO 2006-07 HAS BEEN DEL ETED BY THE COMMISSIONER OF INCOME TAX (APPEALS) AND THE REVENU E HAS ACCEPTED THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEAL S. THE ASSESSING OFFICER HAS NOT BROUGHT OUT ON RECORD THAT THERE IS A CHANGE IN THE FACTS AND CIRCUMSTANCES WITH RESPECT TO THE CLAIM OF THE ASSESSEE FOR THE ASSESSMENT YEAR UNDER CONSIDERATION TO THAT OF EARL IER YEARS 2004-05 TO 2006-07. THOUGH, PRINCIPLE OF RES-JUDICATA IS NO T APPLICABLE IN THE MATTER OF INCOME TAX, HOWEVER, RULE OF CONSISTENCY HAS TO BE FOLLOWED AS THE FACTS ARE IDENTICAL. SINCE THERE IS NO DIFFEREN CE IN THE FACTS AND CIRCUMSTANCES WITH RESPECT TO THE CLAIM OF THE ASSE SSEE FOR THE ASSESSMENT YEAR UNDER CONSIDERATION VIS-A-VIS TO TH E ASSESSMENT YEARS 2004-05 TO 2006-07 AND WHEN THE ORDER OF THE COMMIS SIONER OF INCOME TAX (APPEALS) HAS BEEN ACCEPTED BY THE REVENUE FOR THE AYS 2004-05 TO ITA 7123/M/2012 3 2006-07, THEN THE CLAIM OF THE ASSESSEE CANNOT BE D ISALLOWED FOR THE ASSESSMENT YEAR UNDER CONSIDERATION. 5. WE ALSO NOTICE THAT THE HONBLE DELHI HIGH COURT HA S HELD IN THE CASE OF CIT VS. SAMTEL COLOR LTD (2009)(ITA NO.1152/2008 DATED 20-01-2009) HAS HELD THAT THE ADMISSION FEE PAID TO THE CLUBS IS AL SO REVENUE IN NATURE. ACCORDINGLY, WE DIRECT THE AO TO ALLOW THE CLAIM OF THE ASSESSEE. 6. THE FIFTH GROUND URGED BY THE ASSESSEE RELATES T O THE DISALLOWANCE MADE U/S 40(A)(IA) OF THE ACT IN RESPECT OF DISCOUNT GIV EN TO DISTRIBUTORS AMOUNTING TO RS. 24,52,65,057/- BY WAY OF CREDIT NOTES, FOR N ON-DEDUCTION OF TAX AT SOURCE. 7. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE A.O. OBSERVED THAT THE ASSESSEE HAS CLAIMED A SUM OF RS. 39,90,92,351/ - AS EXPENDITURE INCURRED UNDER THE HEAD SALES SCHEME EXPENSES. T HE A.O. ASKED THE ASSESSEE TO FURNISH THE DETAILS OF SALES SCHEME EXP ENSES, WHICH WAS FURNISHED AS UNDER:- SR. NO. PARTICULARS AMOUNT (RS.) 1 VOLUME/BULK DISCOUNTS - BEER 7,82,01,645/ - 2 CASH DISCOUNTS/COD 4,11,32,650/ - 3 SALE PRICE DISCOUNTS 24,52,65,057/ - 4 SPECIAL DISCOUNT 2,02,38,400/ - 5 COMMISSION OF SALES 1,42,54,598/ - TOTAL 39,90 ,92,351/ - THE AO ASKED THE ASSESSEE AS TO WHY THE SALE PRICE DISCOUNT OFFERED BY THE ASSESSEE SHOULD NOT BE TREATED AS COMMISSION EXPEN SE FALLING UNDER SECTION 194H OF THE ACT. AFTER CONSIDERING THE EXPLANATION S GIVEN BY THE ASSESSEE, THE A.O. HELD THAT THE ASSESSEE HAD FAILED TO DEDUCT TA X AT SOURCE FROM THE SALE PRICE DISCOUNTS REFERRED IN ITEM NO.3 IN THE TABLE , U/S 194H R.W.S. 200 OF THE ACT AND ACCORDINGLY DISALLOWED THE SAME U/S 40(A)( IA) OF THE ACT. THE LD. DRP ITA 7123/M/2012 4 ALSO CONCURRED WITH THE VIEW TAKEN BY THE A.O. AND HELD THAT RELATIONSHIP BETWEEN THE ASSESSEE AND DISTRIBUTOR IS IN THE NATU RE OF PRINCIPAL TO AGENT AND HENCE THE ASSESSEE HAD TO DEDUCT TAXES ON THE P AYMENTS MADE TO THE DISTRIBUTORS. 8. THE LD. REPRESENTATIVES OF BOTH THE SIDES AGREED THAT AN IDENTICAL ISSUE WAS CONSIDERED BY THE TRIBUNAL IN THE CASE OF SKOL BREWERIES LTD. (SUPRA), AS MODIFIED IN M.P. NO.136/MUM/2013 DATED 04-10-2013 A ND THE TRIBUNAL, AFTER DISCUSSING THE ISSUE IN DETAIL, HAS SET ASIDE THIS ISSUE TO THE FILE OF THE A.O. TO RE-EXAMINE THE SAME AFRESH. IT IS PERTINEN T TO NOTE THAT THE TRIBUNAL, VIDE PARAGRAPH 9.4 OF THE ORDER HAS HELD THAT THE R ELATIONSHIP BETWEEN THE PARTIES, AS PER THE AGREEMENT, IN RELATION TO SALE AND PURCHASE OF THE PRODUCT IS ON PRINCIPAL TO PRINCIPAL BASIS AND TO THAT EXTE NT THE DECISION OF HONBLE DELHI HIGH COURT RENDERED IN THE CASE OF MOTHER DIA RY (249 CTR 559) IS APPLICABLE. HOWEVER, THE TRIBUNAL TOOK THE VIEW TH AT THE SCHEME UNDER WHICH THE IMPUGNED BENEFIT/INCENTIVE IS GIVEN NEEDS TO BE EXAMINED IN ORDER TO GIVE A FINDING AS TO WHETHER THE IMPUGNED PAYMENT IS COM MISSION OR NOT. HENCE, THE MATTER WAS SET ASIDE TO THE FILE OF THE AO WITH A DIRECTION TO VERIFY AND EXAMINE RELEVANT RECORD AND DECIDE THE SAME AS PER LAW. CONSISTENT WITH THE VIEW TAKEN IN EARLIER YEAR, WE SET ASIDE THE ORDER PASSED BY AO ON THIS ISSUE AND RESTORE THE SAME TO HIS FILE WITH THE DIRECTION TO EXAMINE THE SAME AFRESH AFTER AFFORDING NECESSARY OPPORTUNITY OF BEING HEAR D TO THE ASSESSEE AND TAKE APPROPRIATE DECISION IN ACCORDANCE WITH THE LAW. A T THE TIME OF HEARING, THE LD A.R PLACED RELIANCE ON THE DECISION RENDERED BY HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. INTERVET INDIA PVT LTD (ITA NO.1616 OF 2011 DATED 01-01-2014), WHEREIN IT WAS HELD THAT THE SALE PROM OTION BENEFIT AVAILED BY THE DEALERS IS NOT PAYMENT OF COMMISSION. IN THE S ET ASIDE PROCEEDINGS, THE AO SHOULD DECIDE THE ISSUE BY CONSIDERING THE APPLI CABILITY OF THE ABOVE SAID DECISION OF HONBLE JURISDICTIONAL HIGH COURT. ITA 7123/M/2012 5 9. THE NEXT ISSUE URGED BY THE ASSESSEE RELATES T O THE DISALLOWANCE U/S 40(A)(IA) R.W.S. 195 AND 200 OF THE ACT IN RESPECT OF DEPRECIATION ON PAYMENT TO FOSTERS AUSTRALIA AMOUNTING TO RS. 28,76,40,000 /- MADE BY THE A.O. DURING ASSESSMENT PROCEEDINGS, THE A.O. NOTICED THA T THE ASSESSEE PURCHASED FOSTERS BRAND AND INTELLECTUAL PROPERTY, FOST ERS BREWING INTELLECTUAL PROPERTY AND FOSTERS TRADEMARKS FROM FOSTERS AUS TRALIA LTD. FOR A CONSIDERATION OF RS. 157,92,00,000/-. THE ASSESSEE CAPITALIZED THE SAID AMOUNT IN ITS FIXED ASSETS SCHEDULE UNDER THE HEAD TRADE MARKS/BRANDS AND CLAIMED DEPRECIATION THEREON @ 25%. FOR THE YE AR UNDER CONSIDERATION, THE ASSESSEE HAS CLAIMED DEPRECIATION OF RS. 28,76, 40,000/- IN ITS RETURN OF INCOME. THE A.O. ASKED THE ASSESSEE TO EXPLAIN AS TO WHY THE DEPRECIATION CLAIMED SHOULD NOT BE DISALLOWED, SINCE THE ASSESSE E HAS NOT DEDUCTED TAX AT SOURCE ON THE PAYMENT OF RS.157.92 CRORES MADE TO F OSTERS AUSTRALIA. THE ASSESSEE EXPLAINED THAT THE ASSESSEE HAS CAPITALIZE D THE PURCHASE VALUE OF FOSTERS BRAND AND IT IS NOT REQUIRED UNDER LAW TO DEDUCT TAX AT SOURCE IN RESPECT OF PAYMENT MADE FOR CAPITAL ASSET. HOWEVER, THE A.O. WAS NOT SATISFIED WITH THE EXPLANATION OFFERED BY THE ASSESSEE AND FO LLOWING HIS ORDER PASSED IN THE EARLIER YEAR, HE DISALLOWED THE CLAIM OF DEPREC IATION U/S 40(A)(I) R.W.S. 195 AND 200 OF THE ACT. THE LD. DRP ALSO UPHELD THE VI EW OF THE AO. 10. AT THE TIME OF HEARING, THE LD. COUNSEL FOR TH E ASSESSEE SUBMITTED THAT THE ABOVE SAID ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THE TRIBUNAL RENDERED IN THE CASE OF SK OL BREWERIES LTD. (SUPRA) REPORTED IN (2013) 142 ITD 49 (MUMBAI). WE FIND TH AT THE TRIBUNAL HAS CONSIDERED AN IDENTICAL ISSUE AND DECIDED THE SAME IN FAVOUR OF THE ASSESEE BY OBSERVING AS UNDER:- 16.3 THE DEDUCTION U/S 32 IS NOT IN RESPECT OF THE AMOUNT PAID OR PAYABLE WHICH IS SUBJECTED TO TDS; BUT IS A STATUTORY DEDUC TION ON AN ASSET WHICH IS OTHERWISE ELIGIBLE FOR DEDUCTION OF DEPRECATION. DE PRECIATION IS NOT AN OUTGOING EXPENDITURE AND THEREFORE, THE PROVISIONS OF SEC. 4 0(A) (I) OF THE ACT ARE NOT ATTRACTED ON SUCH DEDUCTION. THIS VIEW HAS BEEN FOR TIFIED BY THE DECISION OF ITA 7123/M/2012 6 THE HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF M/S MARK AUTO INDUSTRIES LTD (SUPRA) IN PARS 5 & 6 AS UNDER . . IN VIEW OF THE ABOVE, WE DIRECT HE A.O TO DELETE TH IS DISALLOWANCE. 11. THE NEXT ISSUE URGED BY THE ASSESSEE RELATES TO THE DISALLOWANCE MADE U/S 40(A)(I) OF THE ACT OF SOFTWARE CHARGES AMOUNTI NG TO RS. 33,60,435/- FOR NON-DEDUCTION OF TAX AT SOURCE. DURING SCRUTINY AS SESSMENT, THE A.O. OBSERVED THAT THE ASSESSEE HAS PAID A SUM OF RS. 33 ,60,435/- TO SABMILLER A & A (PTY) LTD. TOWARDS THE EXPENDITURE INCURRED ON ACCOUNT OF SYSPRO LICENSE FEES, REPORT GENERATION CHARGES IN SYSPRO, CUSTOMIZ ING SYSPRO SO AS TO ENABLE ELECTRONIC FUND TRANSFER FACILITY ETC. THESE WERE CLAIMED TO BE REIMBURSEMENT OF EXPENSES, WHICH WERE SUPPORTED BY THIRD PARTY INVOICES. THE A.O. HELD THAT THESE PAYMENTS ARE IN THE NATURE OF ROYALTY FALLING WITHIN THE PURVIEW OF SEC. 9(1)(VI) OF THE ACT AND HENCE T HE ASSESSEE SHOULD HAVE DEDUCTED TAX AT SOURCE ON THE ABOVE SAID PAYMENT. IN REPLY, THE ASSESSEE SUBMITTED THAT THE REIMBURSEMENT REPRESENTS A PURE RECOVERY OF THIRD PARTY COSTS INCURRED BY THE OVERSEAS GROUP ENTITY FOR THE BENEFIT OF THE ASSESSEE. IT WAS SUBMITTED THAT THE PAYMENT OF IT COST IS NOT LI ABLE TO INCOME TAX AND THUS THERE WAS NO LIABILITY ON THE ASSESSEE TO DEDU CT ANY TDS WHILE MAKING THE PAYMENT. IT WAS ALSO SUBMITTED THAT EVEN IF TH E PAYMENTS RECEIVED BY IT IS TERMED AS ROYALTY UNDER THE ACT, NO DISALLOWANCE U/ S 40(A)(I) OF THE ACT CAN BE MADE AS THE SAME WOULD FALL UNDER EXPLANATION 4 AND NOT UNDER EXPLANATION 2 OF SECTION 9(1)(VI) OF THE ACT. THE A.O. AFTER C ONSIDERING THE SUBMISSIONS OF THE ASSESSEE HELD THAT THE ASSESSEE HAS MADE PAYMEN T FOR SYSPRO LICENSE WHICH IS FOR A RIGHT TO USE INTELLECTUAL PROPERTY E MBEDDED IN IT. ACCORDINGLY HE DISALLOWED THE EXPENDITURE U/S 40(A)(I) OF THE A CT FOR NON-DEDUCTION OF TAX AT SOURCE. THE LD. DRP HELD THAT THE SOFTWARE IS A N INTELLECTUAL PROPERTY RIGHT AND THE PERIODICAL PAYMENTS MADE TO THE GROUP COMPA NY FOR SHARING THE RIGHTS FOR ITS USE AND MAINTENANCE COLLECTIVELY PAY ABLE TO THE OWNER OF THE RIGHTS AND ACCORDINGLY UPHELD THE VIEW TAKEN BY THE A.O. ITA 7123/M/2012 7 12. DURING THE HEARING BEFORE US, THE LD. REPRESENT ATIVES OF BOTH THE SIDES AGREED THAT AN IDENTICAL ISSUE WAS CONSIDERED IN TH E ASSESSEES OWN CASE REPORTED IN (2013) 142 ITD 49 (MUM) AND THIS ISSUE HAS ALREADY BEEN DECIDED BY THE TRIBUNAL IN FAVOUR OF THE ASSESSEE. ON PERUS AL OF THE ORDER OF THE TRIBUNAL, WE FIND THAT THE TRIBUNAL HAS HELD THAT T HE IMPUGNED EXPENDITURE DOES NOT FALL UNDER EXPLANATION 2 TO SECTION 9(1)(V I); BUT THE SAME FALLS UNDER EXPLANATION 4 TO SEC. 9(1)(IV). SINCE SEC. 40(A)(I ) REFERS TO ONLY EXPLANATION W TO SEC. 9(1)(VI) OF THE ACT, THE SAME CANNOT BE DIS ALLOWED U/S 40(A)(I) OF THE ACT. 13. WHEN IT WAS POINTED OUT THAT THE EXPLANATION 4 IS ONLY A CLARIFICATORY AMENDMENT INSERTED BY FINANCE ACT, 2012 W.R.E.F. 1. 6.1976 AND HENCE EXPLANATION 2 MAY ENCOMPASS THE SAME UNDER ITS FOLD , THE LD A.R SUBMITTED THAT THE ASSESSEE COULD NOT HAVE VISUALIZED THE AME NDMENT THAT IS GOING TO BE BROUGHT IN BY FINANCE ACT, 2012, WHEN THE IMPUGNED PAYMENT WAS MADE IN FINANCIAL YEAR 2007-08 AND HENCE THE PROVISIONS OF SEC. 40(A)(I) SHOULD NOT BE APPLIED ON THE PAYMENTS THAT WERE HIT BY PROSPECTIV E AMENDMENT. WE AGREE WITH THIS CONTENTION OF THE ASSESSEE AND ACCORDINGL Y DIRECT THE AO TO DELETE THIS DISALLOWANCE. 14. THE NEXT ISSUE URGED BY THE ASSESSEE RELATES TO THE DISALLOWANCE OF INTEREST ON ADVANCES GIVEN TO GROUP ENTITIES U/S 36 (1)(III) OF THE ACT AMOUNTING TO RS. 36,56,856/-. 15. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, TH E A.O. OBSERVED THAT THE ASSESSEE HAD PAID ADVANCES TO TWO GROUP COMPANI ES VIZ: MBL INVESTMENTS LTD, AND SABMILLER INDIA LIMITED (NOW S KOL BEER MANUFACTURING CO. LTD.). THE A.O. ALSO OBSERVED THAT THE ASSESSE E HAD BORROWED LOANS FROM VARIOUS BANKS AT A HIGHER RATE OF INTEREST IE. @ 12 % WHEREAS IT HAS CHARGED INTEREST @ 6% FROM ITS GROUP COMPANIES. ACCORDINGL Y, THE A.O. REQUIRED THE ITA 7123/M/2012 8 ASSESSEE TO EXPLAIN AS TO WHY THE PROPORTIONATE AMO UNT OF INTEREST SHOULD NOT BE DISALLOWED. THE A.O. AFTER CONSIDERING THE SUBM ISSIONS MADE BY THE ASSESSEE, DISALLOWED THE PROPORTIONATE AMOUNT OF IN TEREST @ 6% ON THE SUM OF RS. 11,79,47,601/- WHICH WORKED OUT TO RS. 36,56,85 6/-. THE LD DRP ALSO AGREED WITH THE VIEW TAKEN BY THE A.O. AND HELD THA T BORROWED FUNDS SHOULD HAVE BEEN USED FOR THE PURPOSE OF BUSINESS OF THE A SSESSEE AND NOT FOR THE PURPOSE OF ITS ASSOCIATES. IT WAS ALSO HELD THAT T HE FUNDS ADVANCED WERE NOT ON ACCOUNT OF COMMERCIAL EXPEDIENCY. 16. AT THE TIME OF HEARING, THE LD. REPRESENTATIVES OF BOTH SIDES AGREED THAT AN IDENTICAL ISSUE WAS CONSIDERED BY THE CO-ORDINAT E BENCH IN THE CASE OF SKOL BREWERIES LTD. (SUPRA) AND RESTORED THE MATTER TO THE FILE OF THE AO TO VERIFY THE CONTENTIONS OF THE ASSESSEE THAT THE ADV ANCES WERE GIVEN OUT OF OWN FUNDS AND NOT BORROWED FUNDS. CONSISTENT WITH THE VIEW TAKEN IN THE EARLIER YEAR, WE RESTORE THIS ISSUE TO THE FILE OF A.O. FOR FRESH EXAMINATION BY DULY CONSIDERING THE CONTENTIONS OF THE ASSESSEE. 17. THE NEXT GROUND RELATES TO THE TRANSFER PRICING ADJUSTMENT IN RESPECT OF ROYALTY PAYMENT TO ASSOCIATED ENTERPRISES (AE) AMOU NTING TO RS. 12,26,22,853/-. THE LD A.R SUBMITTED THAT THE ASS ESSEE HAS UNDERTAKEN FRESH TRANSFER PRICING STUDY BY TAKING FRESH SET OF COMPARABLES, BY FOLLOWING THE DIRECTIONS GIVEN BY THE TRIBUNAL IN AY 2007-08 WITH REGARD TO THE APPROACH TO BE FOLLOWED FOR BENCHMARKING ROYALTY TR ANSACTION. HE FURTHER SUBMITTED THAT THE TPO HAS RECENTLY PASSED THE ORDE R FOR AY 2007-08 IN THE SET ASIDE PROCEEDINGS AND HAS ACCEPTED THE FRESH SE T OF COMPARABLES FURNISHED BY THE ASSESSEE. ACCORDINGLY, HE PRAYED THAT THE ASSESSEE MAY BE GIVEN ONE MORE OPPORTUNITY IN THIS MATTER TO REPRES ENT ITS CASE IN THE CURRENT YEAR ALSO. ITA 7123/M/2012 9 18. THE LD D.R DID NOT OBJECT TO THE PLEA PUT F ORTH BY LD A.R. ACCORDINGLY WE SET ASIDE THE ORDER OF THE AO ON THIS ISSUE AND RESTORE THE SAME TO HIS FILE WITH THE DIRECTION TO EXAMINE THIS ISSUE AFRESH BY MAKING REFERENCE TO THE TPO AND DECIDE THE SAME IN ACCORDANCE WITH THE LAW. 19. IN THE RESULT, THE APPEAL FILED BY THE ASS ESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 0 3-07-2015 JULY, 2015. !' # $% &! ' 03-07-2015 ( ) SD/- SD/- (AMIT SHUKLA) (B.R. BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER $ 5 MUMBAI ; &! DATED 3-7-2015 [ .6../ RK RKRK RK , SR. PS ! '#$% &%# / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. 7 () / THE DRP II, , MUMBAI 4. 7 / A.O. CONCERNED, ,MUMBAI 5. :;( 66<= , <= , $ 5 / DR, ITAT, MUMBAI KJ BENCH 6. (?@ A / GUARD FILE. ' / BY ORDER, : 6 //TRUE COPY// (/') * ( DY./ASSTT. REGISTRAR) , $ 5 / ITAT, MUMBAI