Louis Vuitton India Retail Pvt. Ltd., Gurgaon V. DCIT, Gurgaon

ITA 775/MUM/2015

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 6581 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-03-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: I
• Assessment Year: 2010-2011
• Appeal Filed On: 04-02-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: PEEYUSH JAIN
• Assessee Lawyers: VISHAL KALRA SHRI GAURAV GUPTA; ANKIT SAHIN S
• Keywords: Depreciation; Transfer pricing; Opportunity of being heard; Principle of natural justice; International transaction; Retrospective amendment; Unabsorbed depreciation
• Section: 92C; 143(3); 92E; 32; 2; 92

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : I-2 : NEW DELHI BEFORE SHRI R.S. SYAL, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NO.775/MUM/2015 ASSESSMENT YEAR : 2010-11 LOUIS VUITTON INDIA RETAIL P. LTD., 901-A, NINTH FLOOR, TIME TOWER, MEHRAULI GURGAON ROAD, GURGAON, HARYANA. PAN: AAACL8230E VS. DCIT, CIRCLE-1(2)(1), MUMBAI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI VISHAL KALRA, SHRI GAURAV GUPTA & SHRI ANKIT SAHIN, ADVOCATES DEPARTMENT BY : SHRI PEEYUSH JAIN, CIT, DR DATE OF HEARING : 28.02.2017 DATE OF PRONOUNCEMENT : .03.2017 ORDER PER R.S. SYAL, AM: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE FINAL ASSESSMENT ORDER DATED 27.11.2014 PASSED BY THE ASS ESSING OFFICER ITA NO.775/MUM/2015 2 (AO) U/S 143(3) READ WITH SECTION 144C OF THE INCOM E-TAX ACT, 1961 (HEREINAFTER ALSO CALLED THE ACT) IN RELATION TO THE ASSESSMENT YEAR 2010-11. 2. THE FIRST GROUND IS AGAINST THE ADDITION ON ACCO UNT OF TRANSFER PRICING ADJUSTMENT TOWARDS ADVERTISEMENT, MARKETING AND PROMOTION EXPENSES AMOUNTING TO RS.4,48,09,156/-. 3. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT T HE ASSESSEE IS AN INDIAN SUBSIDIARY OF LOUIS VUITTON MALLETIER SA, FRANCE AN D IS ENGAGED IN THE BUSINESS OF RETAILING THE PRODUCTS OF THE GROUP. T HE ASSESSEE IMPORTS MATERIAL FROM ITS GROUP COMPANIES AND RESELLS THE S AME IN THE INDIAN MARKETS. THE PRODUCTS WHICH ARE IMPORTED IN INDIA BY THE ASSESSEE ARE FASHION ACCESSORIES, LEATHER BAGS AND SHOES. THE A SSESSEE FILED RETURN DECLARING NIL INCOME AND ALSO REPORTED CERTAIN INTE RNATIONAL TRANSACTIONS. THE AO REFERRED THE MATTER OF DETERMINATION OF ARM S LENGTH PRICE (ALP) OF THE INTERNATIONAL TRANSACTIONS TO THE TRANSFER P RICING OFFICER (TPO). THE TPO OBSERVED THAT THE INTERNATIONAL TRANSACTION S REPORTED BY THE ASSESSEE INCLUDED IMPORT OF FINISHED GOODS, EXPORT OF GOODS AND ITA NO.775/MUM/2015 3 REIMBURSEMENT OF EXPENSES. FOR IMPORT AND EXPORT TR ANSACTIONS, THE ASSESSEE APPLIED RESALE PRICE METHOD (RPM) AS THE M OST APPROPRIATE METHOD, WHEREAS FOR THE REIMBURSEMENT OF EXPENSES P AID, THE ASSESSEE APPLIED COMPARABLE UNCONTROLLED METHOD. DURING THE COURSE OF THE PROCEEDINGS, THE TPO OBSERVED THAT THE ASSESSEE INC URRED ADVERTISEMENT, MARKETING AND PROMOTION (AMP) EXPENSES. TREATING T HIS AS AN INTERNATIONAL TRANSACTION, THE TPO APPLIED BRIGHT L INE TEST AND DETERMINED THE RATIO OF THE ASSESSEES OPERATING INCOME TO AMP EXPENSES (EXCLUDING DISTRIBUTION EXPENSES) AT 6.91%. CERTAIN COMPARABL ES WERE CHOSEN WHOSE AVERAGE OF SIMILAR RATIO WAS DETERMINED AT 1. 42%. CONSIDERING SUCH AVERAGE RATIO AS A BENCHMARK, THE TPO PROPOSE D TRANSFER PRICING ADJUSTMENT ON ACCOUNT OF AMP EXPENSES AT RS.4,48,09 ,156/-. NO RELIEF WAS ALLOWED BY THE DISPUTE RESOLUTION PANEL (DRP). THE AO IN THE FINAL ASSESSMENT ORDER, MADE THE SAID ADDITION, AGA INST WHICH THE ASSESSEE HAS COME UP IN APPEAL BEFORE US. ITA NO.775/MUM/2015 4 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD. THE ASSESSEE, IN THE EXTANT CA SE, HAS RAISED TWO SETS OF ADDITIONAL GROUNDS, ONE OF WHICH IS AS UNDER :- I. THAT ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE TRANSFER PRICING OFFICER (TPO) HAS ERRED IN LAW AND FACTS, IN DETERMINING THE ARMS LENGTH PRICE (ALP) FOR AN ALL EGED INTERNATIONAL TRANSACTION WHEREIN NO SPECIFIC REFER ENCE HAS BEEN RECEIVED FROM THE ASSESSING OFFICER (AO). II. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE ACTION OF THE TPO IN CATEGORIZING THE UNILATERAL AD VERTISING, MARKETING AND BUSINESS PROMOTION EXPENDITURE AS AN INTERNATI ONAL TRANSACTION UNDER CHAPTER X OF THE INCOME-TAX ACT, 1961 (ACT) IS ERRONEOUS AS TPO EXCEEDED HIS JURISDICTION PARTICULARLY WHEN SEC TION 92CA OF THE ACT ENABLES THE TPO ONLY TO COMPUTE THE ARMS LENGT H OF INTERNATIONAL TRANSACTION. 5. THE LD. DR DID NOT OBJECT TO THE ADMISSION OF TH E ABOVE ADDITIONAL GROUNDS. WE, THEREFORE, ADMIT THE SAME AND TAKE TH EM UP FOR DISPOSAL ON MERITS. 6. BEFORE TAKING UP THE ISSUES, IT IS RELEVANT TO MENTION THAT THE LD. AR ARGUED SIMILAR ISSUES AS HAVE BEEN RAISED IN THE IN STANT APPEAL BEFORE THE DELHI TRIBUNAL IN NIKON INDIA PVT. LTD. VS. DCIT (I TA NO. 6314/DEL/2015 FIRSTLY, CHALLENGING THE JURISDICTION OF THE TRANSFER PRICING OFFICER (TPO) IN DETERMINING THE ARMS LENG TH PRICE (ALP) OF ITA NO.775/MUM/2015 5 THE INTERNATIONAL TRANSACTION OF ADVERTISING, MARKE TING AND PROMOTION EXPENSES (AMP EXPENSES) AND SECONDLY, CONTENDING TH AT THE INCURRING OF AMP EXPENSES IS NOT AN INTERNATIONAL TRANSACTION. T HE TRIBUNAL VIDE ITS ORDER DATED 15.7.2016 SINCE REPORTED AS (2016) 47 CCH 0458 DELTRIB REJECTED BOTH THE CONTENTIONS OF THE ASSESSEE. CER TAIN ADDITIONAL ARGUMENTS HAVE BEEN INSTANTLY MADE, WHICH WE WILL A DVERT TO AT THE APPROPRIATE PLACE. 7. THROUGH THESE ADDITIONAL GROUNDS, THE ASSESS EE HAS CONTENDED THAT IN THE ABSENCE OF ANY SPECIFIC REFERENCE RECEIVED F ROM THE AO, THE TPO WAS NOT ENTITLED TO DETERMINE THE ALP OF THE INTERN ATIONAL TRANSACTION OF AMP AND, IN DOING SO, HE EXCEEDED HIS JURISDICTION. IT IS NOTICED THAT THE FINANCE ACT, 2011 HAS INSERTED SUB-SECTION (2A) TO SECTION 92CA W.E.F. 1.6.2011 WHICH PROVIDES THAT : `WHERE ANY OTHER INT ERNATIONAL TRANSACTION [OTHER THAN AN INTERNATIONAL TRANSACTIO N REFERRED UNDER SUB- SECTION (1),] COMES TO THE NOTICE OF THE TRANSFER P RICING OFFICER DURING THE COURSE OF THE PROCEEDINGS BEFORE HIM, THE PROVI SIONS OF THIS CHAPTER SHALL APPLY AS IF SUCH OTHER INTERNATIONAL TRANSACT ION IS AN INTERNATIONAL TRANSACTION REFERRED TO HIM UNDER SUB-SECTION (1). A BARE PERUSAL OF THE ITA NO.775/MUM/2015 6 ABOVE PROVISION FAIRLY INDICATES THAT WHERE ANY INT ERNATIONAL TRANSACTION, OTHER THAN THOSE REFERRED BY THE AO, COMES TO THE N OTICE OF THE TPO DURING THE COURSE OF PROCEEDINGS BEFORE HIM, IT SHA LL BE CONSIDERED AS IF SUCH AN INTERNATIONAL TRANSACTION HAS ALSO BEEN REF ERRED TO HIM. SINCE THE REFERENCE WAS MADE BY THE AO TO THE TPO ON 22.2.201 2, WHICH IS A DATE POSTERIOR TO 1.6.2011, BEING THE DATE OF INSERTION OF SUB-SECTION (2A), WE HOLD THAT THE TPO WAS JUSTIFIED IN ASSUMING JURISDI CTION OVER THE INTERNATIONAL TRANSACTION OF AMP, WHICH CAME TO HIS NOTICE DURING THE COURSE OF PROCEEDINGS BEFORE HIM. 8. SIMILAR TO THE NIKONS CASE (SUPRA), THE LD. AR RELIED ON INSTRUCTION NO.3/2016 DATED 10 TH MARCH, 2016 LAYING DOWN GUIDELINES FOR IMPLEMENTATION OF TRANSFER PRICING PROVISIONS. REFERRING TO PARA 3.4 OF THIS INSTRUCTION, THE LD. AR ARGUED THAT THE AO MUST HAVE FIRST PROVIDED AN OPPORTUNITY OF BEING HEARD TO THE ASSES SEE BEFORE RECORDING A SATISFACTION IN RESPECT OF THE TRANSACTION OF AMP EXPENSES. THEN, HE REFERRED TO PARA 4.1 OF THE INSTRUCTION TO SUBMIT T HAT THE TPO COULD NOT HAVE UNDERTAKEN THE EXERCISE OF DETERMINING THE ALP OF THE INTERNATIONAL ITA NO.775/MUM/2015 7 TRANSACTION OF AMP EXPENSES. IT WAS SUBMITTED THAT THE SAID INSTRUCTION, ALBEIT DATED MARCH, 2016, IS CURATIVE AND, HENCE, R ETROSPECTIVE IN NATURE. IT WAS SUBMITTED THAT THE INSTRUCTION BE GIVEN RETR OSPECTIVE EFFECT AND, ACCORDINGLY, THE JURISDICTION OF THE AO/TPO TO DETE RMINE THE ALP OF AMP EXPENSES BE DECLARED INVALID. HE RELIED ON CER TAIN DECISIONS TO FORTIFY HIS POINT OF VIEW, WHICH WE WILL DISCUSS A LITTLE LATER. 9. THIS WAS OPPOSED BY THE LD. DR, WHO, SIMILAR TO NIKONS CASE (SUPRA), SUBMITTED THAT THE INSTRUCTION DATED 10 TH MARCH, 2016 IS PROCEDURAL IN NATURE AND, HENCE, CAN NEVER HAVE A R ETROSPECTIVE EFFECT. TO BE MORE SPECIFIC, HE SUBMITTED THAT NO INSTRUCTI ON ISSUED BY THE CBDT LAYING DOWN A PARTICULAR PROCEDURE TO BE FOLLO WED BY THE AUTHORITIES CAN EVER BE RETROSPECTIVE IN NATURE. I T WAS SUBMITTED THAT SINCE THE LANGUAGE OF SECTION 92CA(2A) AND (2B) IS CLEAR AND UNAMBIGUOUS WHICH DOES NOT ADMIT OF ANY DOUBT IN PR OVIDING THAT THE JURISDICTION OF THE TPO IS NOT LIMITED TO THE INTER NATIONAL TRANSACTIONS EITHER REPORTED BY THE ASSESSEE OR REFERRED TO BY T HE AO, THERE IS NO NEED TO LOOK INTO THE INSTRUCTION, AT LEAST BEFORE THE D ATE OF ITS APPLICABILITY. ITA NO.775/MUM/2015 8 10. WE FIND THAT THERE ARE TWO ASPECTS OF THIS I SSUE REQUIRING OUR DECISION, FIRST, THE CONTENT OF THE INSTRUCTION AND SECOND, THE PROSPECTIVE OR RETROSPECTIVE EFFECT OF THE INSTRUCTION. 11. THE LD. AR, SIMILAR TO NIKONS CASE (SUPRA), RELIED ON PARA 3.4 OF THE INSTRUCTION TO BOLSTER HIS ARGUMENT THAT THE AO COULD NOT HAVE REFERRED THE MATTER OF ALP OF AMP EXPENSES TO THE T PO WITHOUT RECORDING HIS SATISFACTION AND SUCH SATISFACTION CO ULD HAVE RECORDED ONLY AFTER GIVING OPPORTUNITY OF HEARING TO THE ASS ESSEE. LET US SEE THE CONTENTS OF PARA 3.4 OF THE INSTRUCTION, WHICH READ AS UNDER :- 3.4 FOR CASES TO BE REFERRED BY THE AO TO THE TPO IN ACCORDANCE WITH PARAGRAPHS 3.2 AND 3.3 ABOVE, IN RESPECT OF TRANSACTIONS HAVING THE FOLLOWING SITUATIONS, THE AO MUST, AS A JURISDICTIONAL REQUIREMENT, RECORD HIS SATISFACTION THAT THERE IS AN INCOME OR A POTENTIAL OF AN INCOME ARISING AND/OR BEING AFFECTED ON DETERMINATI ON OF THE ALP OF AN INTERNATIONAL TRANSACTION OR SPECIFIED DOMESTIC TRANSACTION BEFORE SEEKING APPROVAL OF THE PCIT OR CIT TO REFER THE MA TTER TO THE TPO FOR DETERMINATION OF THE ALP: WHERE THE TAXPAYER HAS NOT FILED THE ACCOUNTANTS REPORT UNDER SECTION 92E OF THE ACT BUT THE INTERNATIONAL TRANSA CTIONS OR SPECIFIED DOMESTIC TRANSACTIONS UNDERTAKEN BY IT CO ME TO THE NOTICE OF THE AO; WHERE THE TAXPAYER HAS NOT DECLARED ONE OR MORE I NTERNATIONAL TRANSACTION OR SPECIFIED DOMESTIC TRANSACTION IN TH E ACCOUNTANTS ITA NO.775/MUM/2015 9 REPORT FILED UNDER SECTION 92E OF THE ACT AND THE S AID TRANSACTION OR TRANSACTIONS COME TO THE NOTICE OF THE AO; AND WHERE THE TAXPAYER HAS DECLARED THE INTERNATIONAL TRANSACTIONS OR SPECIFIED DOMESTIC TRANSACTIONS IN THE ACCOUNTANTS REPORT FILED UNDER SECTION 92E OF THE ACT BUT HAS MADE CERTAIN Q UALIFYING REMARKS TO THE EFFECT THAT THE SAID TRANSACTIONS AR E NOT INTERNATIONAL TRANSACTIONS OR SPECIFIED DOMESTIC TRANSACTIONS OR THEY DO NOT IMPACT THE INCOME OF THE TAXPAYER. IN THE ABOVE THREE SITUATIONS, THE AO MUST PROVIDE AN OPPORTUNITY OF BEING HEARD TO THE TAXPAYER BEFORE RECORDING HIS SA TISFACTION OR OTHERWISE. IN CASE NO OBJECTION IS RAISED BY THE TA XPAYER TO THE APPLICABILITY OF CHAPTER X [SECTIONS 92 TO 92F] OF THE ACT TO THESE THREE SITUATIONS, THEN AO SHOULD REFER THE INTERNAT IONAL TRANSACTION OR SPECIFIED DOMESTIC TRANSACTION TO THE TPO FOR DETER MINING THE ALP AFTER OBTAINING THE APPROVAL OF THE PCIT OR CIT. HO WEVER, WHERE THE APPLICABILITY OF CHAPTER X [SECTIONS 92 TO 92F] TO THESE THREE SITUATIONS IS OBJECTED TO BY THE TAXPAYER, THE AO M UST CONSIDER THE TAXPAYERS OBJECTIONS AND PASS A SPEAKING ORDER SO AS TO COMPLY WITH THE PRINCIPLES OF NATURAL JUSTICE. IF THE AO DECIDE S IN THE SAID ORDER THAT THE TRANSACTION IN QUESTION NEEDS TO BE REFERR ED TO THE TPO, HE SHOULD MAKE A REFERENCE AFTER OBTAINING THE APPROVA L OF THE PCIT OR CIT. 12. THE LD. AR, SIMILAR TO NIKONS CASE (SUPRA), SUBMITTED THAT HIS CASE FALLS UNDER THE SECOND BULLET POINT OF THE PAR A INASMUCH AS THE ASSESSEE DID NOT REPORT AMP EXPENSES AS AN INTERNAT IONAL TRANSACTION. ITA NO.775/MUM/2015 10 13. WE FIND THAT THE LANGUAGE OF THE ABOVE PARA MAKES IT CLEAR THAT BEFORE MAKING A REFERENCE BY THE AO TO THE TPO, THE RE IS A JURISDICTIONAL REQUIREMENT ON THE PART OF THE AO TO RECORD HIS SAT ISFACTION THAT THERE IS AN INCOME OR A POTENTIAL OF AN INCOME ARISING ON DE TERMINATION OF THE ALP OF AN INTERNATIONAL TRANSACTION BEFORE SEEKING APPROVAL OF THE CIT WHERE THE ASSESSEE, INTER ALIA , HAS NOT DECLARED A PARTICULAR TRANSACTION AS INTERNATIONAL TRANSACTION IN ITS REPORT FILED U/S 9 2E. BEFORE RECORDING SUCH A SATISFACTION, IT IS INCUMBENT ON THE PART OF THE AO TO PROVIDE AN OPPORTUNITY OF HEARING TO THE ASSESSEE AND, THEREAF TER, PASS A SPEAKING ORDER, IF THE ASSESSEE OBJECTS TO THE AOS VERSION . IT IS ONLY WHEN THE TAXPAYER FAILS TO DECLARE AN INTERNATIONAL TRANSACT ION, WHICH COMES TO THE NOTICE OF THE AO, WHO MAKES REFERENCE TO THE TPO FO R DETERMINING ITS ALP, THAT THE SATISFACTION HAS TO BE RECORDED BY HI M AFTER GIVING AN OPPORTUNITY OF HEARING TO THE ASSESSEE. WE DO NOT F IND THE ASSESSEES CASE FALLING UNDER THE SECOND BULLET POINT, BECAUSE IT IS NOT THE AO WHO FORMULATED HIS VIEW ON AMP EXPENSES AS AN INTERNATI ONAL TRANSACTION AND THEN REQUIRED DETERMINATION OF ITS ALP BY THE T PO. AS IN THE INSTANT CASE, THE AO DID NOT MAKE ANY REFERENCE TO THE TPO FOR DETERMINING THE ITA NO.775/MUM/2015 11 ALP OF THE UNREPORTED INTERNATIONAL TRANSACTION OF AMP EXPENSES, THIS PARA OF THE INSTRUCTION, CAN HAVE NO APPLICATION. 14. NOW, WE TAKE UP THE CHALLENGE TO THE JURISDICTI ON OF THE TPO, MADE BY THE LD. AR, SIMILAR TO NIKONS CASE (SUPRA), BY RELYING ON PARA 4 OF THE INSTRUCTION, WHICH READS AS UNDER :- 4.1 THE ROLE OF THE TPO BEGINS AFTER A REFERENCE I S RECEIVED FROM THE AO. IN TERMS OF SECTION 92CA, THIS ROLE IS LIMI TED TO THE DETERMINATION OF THE ALP IN RELATION TO INTERNATION AL TRANSACTIONS OR SPECIFIED DOMESTIC TRANSACTIONS REFERRED TO HIM BY THE AO. HOWEVER, IF ANY OTHER INTERNATIONAL TRANSACTION COM ES TO THE NOTICE OF THE TPO DURING THE COURSE OF THE PROCEEDINGS BEF ORE HIM, THEN HE IS EMPOWERED TO DETERMINE THE ALP OF SUCH OTHER INT ERNATIONAL TRANSACTIONS ALSO BY VIRTUE OF SECTION 92CA (2A) AND (2B). THE TRANSFER PRICE HAS TO BE DETERMINED BY THE TPO IN T ERMS OF SECTION 92C. THE PRICE HAS TO BE DETERMINED BY USING ANY ON E OF THE METHODS STIPULATED IN SUB-SECTION (1) OF SECTION 92 C AND BY APPLYING THE MOST APPROPRIATE METHOD REFERRED TO IN SUB-SECTION (2) THEREOF. THERE MAY BE OCCASIONS WHERE APPLICATION O F THE MOST APPROPRIATE METHOD PROVIDES RESULTS WHICH ARE DIFFE RENT BUT EQUALLY RELIABLE. IN ALL SUCH CASES, FURTHER SCRUTINY MAY B E NECESSARY TO EVALUATE THE APPROPRIATENESS OF THE METHOD, THE COR RECTNESS OF THE DATA, WEIGHT GIVEN TO VARIOUS FACTORS AND SO ON. TH E SELECTION OF THE MOST APPROPRIATE METHOD WILL DEPEND UPON THE FACTS OF THE CASE AND THE FACTORS MENTIONED IN RULE 100. THE TPO, AFTER T AKING INTO ACCOUNT ALL RELEVANT FACTS AND DATA AVAILABLE TO HI M, SHALL DETERMINE THE ALP AND PASS A SPEAKING ORDER . ITA NO.775/MUM/2015 12 15. ON GOING THROUGH THE ABOVE PARA, IT BECOMES PAL PABLE THAT THE ROLE OF THE TPO IS LIMITED TO THE DETERMINATION OF THE A LP OF THE INTERNATIONAL TRANSACTIONS REFERRED TO HIM BY THE A O. THIS PARA FURTHER PROVIDES : HOWEVER, IF ANY OTHER INTERNATIONAL TRANSACTION CO MES TO THE NOTICE OF THE TPO DURING THE COURSE OF PROCEEDINGS BEFORE HIM THEN HE IS EMPOWERED TO DETERMINE THE ALP OF SUCH OTHER INTERN ATIONAL TRANSACTION ALSO BY VIRTUE OF SECTION 92CA(2A) AND (2B) . ON GOING THROUGH THIS MANDATE OF THE INSTRUCTION, IT BECOMES OVERT THAT T HOUGH THE ORIGINAL JURISDICTION OF THE TPO IS CONFINED TO THE INTERNAT IONAL TRANSACTIONS REFERRED TO HIM BY THE AO FOR DETERMINATION OF THE ALP, BUT, SUCH JURISDICTION IS EXTENDABLE TO OTHER INTERNATIONAL T RANSACTIONS WHICH COME TO HIS NOTICE DURING THE COURSE OF PROCEEDINGS BEFO RE HIM. IT IS NOWHERE LAID DOWN THAT THE POWER OF THE TPO TO DETERMINE TH E ALP OF AN INTERNATIONAL TRANSACTION IS RESTRICTED TO THOSE RE FERRED BY THE AO ALONE. THIS PART OF THE INSTRUCTION IS IN LINE WITH THE ST ATUTORY MANDATE CONTAINED IN SUB-SECTION (2A) AND (2B) OF SECTION 9 2CA. ITA NO.775/MUM/2015 13 16. THE HONBLE JURISDICTIONAL HIGH COURT IN SONY ERICSON MOBILE COMMUNICATIONS INDIA PVT. LTD. VS. CIT (2015) 374 I TR 118 (DEL) HAS DECIDED THIS VERY ISSUE IN FAVOUR OF THE REVENUE B Y HOLDING IN PARA 47 THAT: `THE MAJORITY DECISION OF THE TRIBUNAL IN L.G. ELEC TRONICS INDIA PVT LTD. (SUPRA) HAS RIGHTLY DRAWN A DISTINCTION BETWEEN SUB -SECTION (2B) AND SUB- SECTION (2A) TO SECTION 92CA OF THE ACT. SUB-SECTIO N (2A) WAS INSERTED IN 2011, I.E. NEARLY ONE YEAR BEFORE INSERTION OF SECT ION (2B) BY THE FINANCE ACT, 2012. SUB- SECTION (2A) HAS NOT BEEN GIVEN RET ROSPECTIVE EFFECT AND IT APPLIES ONLY W.E.F. 1ST JUNE, 2011. SUB-SECTION (2A ) APPLIES TO ANY INTERNATIONAL TRANSACTION OR SPECIFIED DOMESTIC TRA NSACTION OF WHICH REFERENCE HAS NOT BEEN MADE TO THE TPO UNDER SUB-SE CTION (1). WITH EFFECT FROM 1ST JUNE, 2011, THE TPO CAN GO INTO ARMS LENG TH PRICING OF AN INTERNATIONAL TRANSACTION OR A SPECIFIED DOMESTIC T RANSACTION NOT REFERRED TO HIM. THE DISTINCTION BETWEEN SUB-SECTION (2A) AND (2B) BEING THAT THE FIRST CLAUSE RELATES TO A DECLARED INTERNATIONAL TRANSACT ION, I.E. IN RESPECT OF WHICH A REPORT UNDER SECTION 92E HAS BEEN FURNISHED, WHER EAS SUB- SECTION (2B) REFERS TO INTERNATIONAL TRANSACTIONS IN RESPECT OF WHICH REPORT UNDER SECTION 92E IS NOT FURNISHED. 17. IN THE LIGHT OF THE ABOVE ARTICULATION OF LAW B Y THE HONBLE JURISDICTIONAL HIGH COURT ON SUB-SECTIONS (2A) AND (2B) OF SECTION 92CA OF THE ACT, IT IS CLEAR BEYOND ANY SHADOW OF DOUBT THAT THE TPO IS EMPOWERED TO DETERMINE THE ALP OF ANY OTHER INTERNA TIONAL TRANSACTION WHICH COMES TO HIS NOTICE DURING THE COURSE OF PROC EEDINGS BEFORE HIM. AS THE INSTANT INTERNATIONAL TRANSACTION OF AMP EXP ENSES WAS TAKEN NOTE ITA NO.775/MUM/2015 14 OF BY THE TPO, WE DO NOT FIND ANY LACK OF JURISDICT ION IN HIS PROCEEDING WITH THE DETERMINATION OF ITS ALP. 18. NOW WE ESPOUSE THE SECOND ASPECT AS TO WHET HER THE INSTRUCTION IS RETROSPECTIVE AS URGED BY THE LD. AR SIMILAR TO NIKONS CASE (SUPRA) OR ONLY PROSPECTIVE AS CONTENDED BY THE LD. DR. IN OUR CONSIDERED OPINION, THERE IS NO MERIT IN THE ARGUMENT OF THE LD. AR THA T INSTRUCTION DATED 10 TH MARCH, 2016 IS CURATIVE IN NATURE AND, HENCE, BE GI VEN RETROSPECTIVE EFFECT. IT IS A SIMPLE CASE OF AN INSTRUCTION DATE D 10 TH MARCH, 2016 PUT IN PLACE BY THE CBDT AS A GUIDELINE TO BE FOLLOWED BY THE AOS AND TPOS IN IMPLEMENTING THE TRANSFER PRICING PROVISIONS. T HIS INSTRUCTION IS IN SUPERSESSION OF THE EARLIER INSTRUCTION NO.15 OF 20 15. IT HAS BEEN CLEARLY MENTIONED IN PARA 7 OF THE LATER INSTRUCTION DATED 10 TH MARCH, 2016 THAT: THIS ISSUES U/S 119 OF THE INCOME-TAX ACT, 1961 AN D REPLACES INSTRUCTION NO.15 OF 2015 WITH IMMEDIATE EFFECT . IT IS PLENTIFULLY CLEAR THAT THIS LATER INSTRUCTION HAS BEEN IMPLEMENTED W ITH IMMEDIATE EFFECT FROM THE DATE OF ITS ISSUANCE, WHICH IS 10 TH MARCH, 2016. INSTRUCTIONS TO THE OFFICERS GIVEN BY THE BOARD SETTING UP A PROCED URE FOR ITA NO.775/MUM/2015 15 IMPLEMENTATION OF CERTAIN PROVISIONS CANNOT ASSUME THE CHARACTER OF A LEGISLATIVE PROVISION SO AS TO TOY WITH THE POSSIBI LITY OF APPLYING THE SAME RETROSPECTIVELY. WE ARE REMINDED OF THE DECIS ION OF THE HONBLE JURISDICTIONAL HIGH COURT IN DIT VS. ERICSSON A.B. (2012) 246 CTR 422 (DEL), IN WHICH THE ASSESSEE, INTER ALIA, RELIED ON INSTRUCTION NO. 1829 DT. 21.9.1989 TO CLAIM THAT NO TAXABLE EVENT TOOK PLACE IN INDIA. THE REVENUE ARGUED BEFORE THE HONBLE HIGH COURT THAT S UCH INSTRUCTION STOOD WITHDRAWN `WITH IMMEDIATE EFFECT BY A LATER CIRCULAR NO. 7 OF 2009 DT. 22ND OCT., 2009, AND HENCE THE LATER CIRCU LAR BE TREATED AS RETROSPECTIVE. THE ARGUMENT OF THE LD. AR IN CASE B EFORE US IS SIMILAR TO THAT ADVANCED BY THE REVENUE IN THAT CASE BEFORE TH E HONBLE HIGH COURT THAT THE LATER INSTRUCTION IMPLEMENTED `WITH IMMEDIATE EFFECT BE GIVEN RETROSPECTIVE EFFECT. REJECTING THE CONTENTIO N OF RETROSPECTIVE EFFECT ADVANCED ON BEHALF OF THE REVENUE, THE HONB LE HIGH COURT HELD THAT : `ALTHOUGH INSTRUCTION NO. 1829 STANDS WITHDR AWN BY VIRTUE OF CIRCULAR NO. 7 OF 2009 DT. 22ND OCT., 2009, SUCH WITHDRAWAL CAN HAVE NO RETROSPECTIVE EFFECT AND THE PRINCIPLE LAID DOWN IN INSTRUCTION NO. 1829 MUST CONTINUE TO GOVERN THE ASSESSMENT FOR THE RELEVANT YEAR. ITA NO.775/MUM/2015 16 WHEN THE LANGUAGE OF SECTIONS 92C AND 92CA ETC. DOE S NOT PROVIDE FOR THE AO TO AFFORD AN OPPORTUNITY OF BEING HEARD TO T HE TAXPAYER BEFORE RECORDING HIS SATISFACTION IN TERMS OF PARA 3.4, WE FAIL TO COMPREHEND AS TO HOW THIS PROCEDURAL ASPECT MADE APPLICABLE WITH IMMEDIATE EFFECT FROM 10 TH MARCH, 2016, CAN BE READ IN THE PROVISION AB INITIO . IF THIS INSTRUCTION, AS ARGUED BY THE LD. AR, IS CONSTRUED AS RETROSPECTIVE ENJOINING UPON THE AO TO RECORD SATISFACTION AS DIS CUSSED IN PARA 3.4, IT WOULD RENDER SEVERAL EARLIER ASSESSMENT ORDERS CONT AINING TRANSFER PRICING ADDITIONS, NULL AND VOID. SINCE THIS PROCE DURE HAS BEEN PUT IN PLACE BY THE CBDT WITH EFFECT FROM 10 TH MARCH, 2016, IT HAS TO BE TREATED AS PROSPECTIVE AT LEAST IN RESPECT OF ASSES SMENTS WHICH HAVE BEEN COMPLETED BEFORE THE DATE PRESCRIBED IN THE CIRCULA R, WHICH MEANS THAT THE TPOS/AOS WILL FOLLOW THE SAME QUA THE MATTERS UNDER THEIR CONSIDERATION ON 10 TH MARCH, 2016 AND ONWARDS. 19. RELIANCE OF THE LD. AR ON THE JUDGMENT OF T HE HONBLE DELHI HIGH COURT IN INDORAMA SYNTHETICS (INDIA) LTD. VS. ADTL. CIT (201 6) 386 ITR 665 (DELHI) TO BUTTRESS THE CONTENTION THAT THE ASSESSMENT BE SET ASIDE FOR ITA NO.775/MUM/2015 17 NOT GIVING OPPORTUNITY TO THE ASSESSEE BEFORE MAKI NG REFERENCE TO THE TPO, IN OUR CONSIDERED OPINION IS FAR-FETCHED. IN T HAT CASE, IT WAS HELD THAT THE AO MUST PROVIDE OPPORTUNITY OF BEING HEARD TO TAXPAYER BEFORE RECORDING HIS SATISFACTION OR OTHERWISE. THE DECISI ON IS NOT GERMANE TO THE ISSUE UNDER CONSIDERATION, PRIMARILY, BECAUSE IT WAS DELIVERED ON A WRIT PETITION FILED BY THE ASSESSEE AGAINST THE NOT ICE AND NOT IN AN APPEAL AFTER THE COMPLETION OF ASSESSMENT. FURTHER, THE MATTER WAS CLOSED BY GIVING OPTION TO THE AO TO CONSIDER THE QUESTION IF A REFERENCE SHOULD BE MADE TO THE TPO `AFRESH AFTER GIVING THE PETITIONER AN OPPORTUNITY OF BEING HEARD. SIMILAR POSITION PREVAILS IN ALPHA NIPPON INNOVATIVES LTD. VS. DCIT - SPECIAL CIVIL APPLICATION NO. 7720 OF 20 16 (GUJARAT) , A COPY OF WHICH ORDER DATED 16.11.2016 HAS BEEN PLACED AT PAGE 48 ONWARDS OF THE ASSESSEES PAPER BOOK. IN THAT CASE ALSO, THE M ATTER WAS REMITTED TO THE AO FOR PASSING A SPEAKING ORDER BEFORE MAKING A REFERENCE TO THE TPO, AFTER CONSIDERING THE OBJECTIONS RAISED BY THE ASSESSEE AND SIMULTANEOUSLY THE ASSESSEE WAS SPECIFICALLY RESTRA INED FROM TAKING A PLEA OF LIMITATION. SIMILARLY, IN THE OTHER CASE OF SHRI VISHNU EATABLES (INDIA) LTD. VS. DCIT (2016) 74 TAXMANN.COM 89 (P&H ) , THE ASSESEE ITA NO.775/MUM/2015 18 CHALLENGED THE VALIDITY OF REFERENCE ON THE GROUND THAT THE NON-PASSING OF THE REASONED ORDER IN TERMS OF INSTRUCTION NO. 3 /2016 DATED 10.3.2016 AS TO WHETHER A TRANSACTION IS AN INTERNATIONAL TRA NSACTION OR NOT AND NON- SERVICE OF THE ORDER UPON THE ASSESSEE WOULD MAKE T HE REFERENCE NULL AND VOID. REJECTING THIS CONTENTION, THE HONBLE HIGH C OURT HELD : `AS WE NOTED EARLIER, THE PURPOSE OF THIS ENTIRE EXERCISE IS INTER ALIA TO AFFORD THE ASSESSEE AN OPPORTUNITY OF ESTABLISHING AT THE THRE SHOLD THAT THE TRANSACTION IS NOT AN INTERNATIONAL TRANSACTION. IF HIS OBJECTIONS ARE OVERRULED IT IS OPEN FOR HIM TO CHALLENGE THE SAME BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) OR THE DISPUTE S RESOLUTION PANEL, AS THE CASE MAY BE. AN ASSESSEE IS NOT ENTIT LED AS A MATTER OF RIGHT TO INVOKE THE WRIT JURISDICTION AT THE STAGE OF REF ERENCE BY THE ASSESSING OFFICER TO THE TPO. HIS GRIEVANCES CAN BE RAISED IN A CHALLENGE TO THE DRAFT ASSESSMENT ORDER BEFORE THE DISPUTES RESOLUTI ON PANEL OR THE FINAL ASSESSMENT ORDER BEFORE TO THE COMMISSIONER OF INCO ME TAX (APPEALS). THE REQUIREMENTS OF THE RULES OF NATURAL JUSTICE AN D OF THE SAID CIRCULAR DATED 10.03.2016 WOULD HAVE BEEN MET EVEN IF THE SA TISFACTION NOTE IS FURNISHED SUBSEQUENTLY. AS WE NOTED EARLIER, IN ANY EVENT THE ASSESSEE ITA NO.775/MUM/2015 19 CANNOT RAISE THE QUESTION AS TO WHETHER OR NOT THE REFERRED TRANSACTION IS AN INTERNATIONAL TRANSACTION BEFORE THE TRANSFER PR ICING OFFICER. IT IS, THEREFORE, SUFFICIENT IF HE IS SERVED WITH THE ORDE R SUBSEQUENTLY EVEN ALONG WITH THE DRAFT ASSESSMENT ORDER OR THE ASSESS MENT ORDER AS THE CASE MAY BE. THUS IT IS VIVID THAT THIS DECISION ALSO D OES NOT BOLSTER THE ASSESSEES POINT OF VIEW BECAUSE HERE, THE HONBLE HIGH COURT HELD THAT FAILURE TO SUPPLY SATISFACTION NOTE TO THE ASSESSEE BEFORE MAKING REFERENCE OF INTERNATIONAL TRANSACTION TO THE TPO I S AT THE HIGHEST A MERE IRREGULARITY, WHICH DOES NOT ITSELF MAKE REFERENCE VOID AB INITIO . THUS IT IS CLEAR THAT NONE OF THE CASES RELIED BY THE LD. A R FORTIFY HIS CONTENTION OF QUASHING THE ASSESSMENT ORDER. WE, THEREFORE, JETTISON THE ARGUMENT ADVANCED BY THE LD. AR THAT THIS INSTRUCTION BE GIV EN RETROSPECTIVE EFFECT IN RESPECT OF THE COMPLETED ASSESSMENTS. IT IS, ERG O, HELD THAT THE TPO WAS WITHIN HIS JURISDICTION IN PROCEEDING TO DETERM INE THE ALP OF THE INTERNATIONAL TRANSACTION OF AMP EXPENSES AND FURTH ER, IN PRINCIPLE, THERE IS NO FLAW IN THE AO MAKING TRANSFER PRICING ADDITION, WHICH ACTION IS ALSO INTRA VIRES . ITA NO.775/MUM/2015 20 20. NOW WE ARE LEFT WITH THE MERITS OF ADDITION ON ACCOUNT OF TRANSFER PRICING ADJUSTMENT OF AMP EXPENSES. THE LD. AR CON TENDED THAT THE INCURRING OF AMP EXPENSES IS NOT AN INTERNATIONAL T RANSACTION AT ALL AND, HENCE, THERE CAN BE NO QUESTION OF DETERMINING THE ARMS LENGTH PRICE OF THIS TRANSACTION OR MAKING ANY ADDITION THEREON. H E RELIED ON THE JUDGMENTS OF THE HONBLE DELHI HIGH COURT IN MARUTI SUZUKI INDIA LTD. & ANOTHER VS. CIT (2015) 129 DTR 25 (DEL) AND CIT VS. WHIRLPOOL OF INDIA LTD. (2015) 94 CCH 156 DEL-HC TO CONTEND THAT THE AMP EXPENSES COULD NOT BE CONSIDERED AS AN INTERNATIONA L TRANSACTION. IN THE LIGHT OF THESE JUDGMENTS AND SOME OTHER TRIBUNAL OR DERS, IT WAS SUBMITTED THAT THERE WAS NO INTERNATIONAL TRANSACTI ON OF AMP EXPENSES ON THE BASIS OF PRINCIPLES LAID DOWN IN THESE JUDGM ENTS AND, HENCE, THE ENTIRE EXERCISE OF DETERMINING ITS ALP AND, CONSEQU ENTLY, MAKING TRANSFER PRICING ADJUSTMENT, BE SET ASIDE. 21. AU CONTRAIRE , THE LD. DR, SIMILAR TO NIKONS CASE (SUPRA), RELIED ON THE JUDGMENT OF THE HONBLE DELHI HIGH COURT IN SONY ERICSON MOBILE COMMUNICATIONS (INDIA) PVT. LTD. VS. CIT (2015) 374 ITR 118 (DEL) IN ITA NO.775/MUM/2015 21 WHICH AMP EXPENSES HAVE BEEN HELD TO BE AN INTERNAT IONAL TRANSACTION AND THE MATTER OF DETERMINATION OF ITS ALP HAS BEEN RESTORED. HE ALSO RELIED ON A LATER JUDGMENT OF THE HONBLE JURISDICT IONAL HIGH COURT IN YUM RESTAURANTS (INDIA) P. LTD. VS. ITO (2016) 380 ITR 637 (DEL) AND STILL ANOTHER JUDGMENT DATED 28.1.2016 OF THE HONB LE DELHI HIGH COURT IN SONY ERICSON MOBILE COMMUNICATIONS (INDIA) PVT. LTD . (FOR THE AY 2010-11) IN WHICH THE QUESTION AS TO WHETHER AMP EX PENSES IS AN INTERNATIONAL TRANSACTION HAS BEEN RESTORED FOR A F RESH DETERMINATION. IT WAS ARGUED, SIMILAR TO NIKONS CASE (SUPRA), THAT THE JUDGMENT IN THE CASE OF YUM RESTAURANTS AND SONY ERICSON (FOR AY 2010-11) DELIVERED IN JANUARY, 2016 IS LATER IN POINT OF TIME TO THE E ARLIER JUDGMENTS IN THE CASE OF MARUTI SUZUKI AND WHIRLPOOL, ETC. , AND, HENCE, THE MATTER SHOULD BE RESTORED FOR A FRESH DETERMINATION. SIMILAR TO NIKONS CASE (SUPRA) , IT WAS SUBMITTED THAT THERE IS NO BLANKET RULE OF THE AMP EXPENSES AS A NON-INTERNATIONAL TRANSACTION. HE FURTHER STATED T HAT THE HONBLE HIGH COURT IN WHIRLPOOL (SUPRA) HAS MADE CERTAIN OBSERVATIONS, WHICH SHOULD BE PROPERLY WEIGHED FOR ASCERTAINING IF AN INTERNAT IONAL TRANSACTION OF AMP EXPENSES, EXISTS. IT WAS ARGUED THAT THE TRIBU NAL IN SEVERAL CASES ITA NO.775/MUM/2015 22 HAS RESTORED THIS ISSUE TO THE FILE OF TPO TO BE DE CIDED AFRESH IN THE LIGHT OF THE JUDGMENT OF THE HONBLE DELHI HIGH COURT IN SONY ERICSON MOBILE COMMUNICATIONS (INDIA) PVT. LTD. VS. CIT (20 15) 374 ITR 118 (DEL) AND OTHERS . HE ALSO RELIED ON STILL ANOTHER JUDGMENT DATED 28.1.2016 OF THE HONBLE DELHI HIGH COURT IN SONY ERICSON MOBILE COMMUNICATIONS (INDIA) PVT. LTD. (FOR THE AY 2010-11) IN WHICH THE QUESTION AS TO WHETHER AMP EXPENSES IS AN INTERNATI ONAL TRANSACTION, HAS BEEN RESTORED FOR A FRESH DETERMINATION. SIMILAR T O NIKONS CASE (SUPRA), HE STILL FURTHER REFERRED TO THREE LATER JUDGMENTS OF THE HONBLE DELHI HIGH COURT, VIZ., RAYBAN SUN OPTICS INDIA LTD. VS. CIT (DT. 14.9.2016), PR. CIT VS. TOSHIBA INDIA PVT. LTD . (DT. 16.8.2016) AND PR. CIT VS. BOSE CORPORATION (INDIA) PVT. LTD. (DT. 23.8.2016) IN ALL OF WHICH SIMILAR ISSUE HAS BEEN RESTORED FOR FRESH DETERMINATION IN THE LIGHT OF THE EARLIER JUDGMENT IN SONY ERICSSON MOBILE COMMUNICATIONS INDIA PVT. LTD. (SUPRA) . THE LD. DR ARGUED THAT THE HONBLE DELHI HIGH COU RT IN ITS EARLIER DECISION IN SONY ERICSON MOBILE COMMUNICATIONS (INDIA) PVT. LTD. VS. CIT (2015) 374 ITR 118 (DEL) HAS HELD AMP EXPENSES TO BE AN ITA NO.775/MUM/2015 23 INTERNATIONAL TRANSACTION. IT WAS ARGUED THE MATTE R SHOULD BE RESTORED FOR A FRESH DETERMINATION. 22. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD. WE FIND THAT WHEN THE TPO HELD AMP EXPENSES TO BE AN INTERNATIONAL TRANSACTION, HE DID NOT HAVE AN Y OCCASION TO CONSIDER THE RATIO LAID DOWN IN SEVERAL JUDGMENTS OF THE HONBLE JURI SDICTIONAL HIGH COURT, WHICH IS NOW AVAILABLE FOR CONSIDERATIO N. RESPECTFULLY FOLLOWING THE PREDOMINANT VIEW TAKEN IN SEVERAL TRI BUNAL ORDERS OF CO- ORDINATE BENCHES, WE ARE OF THE CONSIDERED OPINION THAT IT WOULD BE IN THE FITNESS OF THINGS IF THE IMPUGNED ORDER IS SET ASIDE AND THE MATTER IS RESTORED TO THE FILE OF TPO/AO FOR A FRESH DETERMIN ATION OF THE QUESTION AS TO WHETHER THERE EXISTS AN INTERNATIONAL TRANSAC TION OF AMP EXPENSES. IF THE EXISTENCE OF SUCH AN INTERNATIONAL TRANSACTI ON IS NOT PROVED, THE MATTER WILL END THERE AND THEN, CALLING FOR NO TRAN SFER PRICING ADDITION. IF, ON THE OTHER HAND, THE INTERNATIONAL TRANSACTION IS FOUND TO BE EXISTING, THEN THE TPO WILL DETERMINE THE ALP OF SUCH AN INTE RNATIONAL TRANSACTION IN THE LIGHT OF THE RELEVANT JUDGMENTS OF THE HONBLE HIGH ITA NO.775/MUM/2015 24 COURT, AFTER ALLOWING A REASONABLE OPPORTUNITY OF B EING HEARD TO THE ASSESSEE. 23. THE ASSESSEE HAS ALSO RAISED ONE MORE ADDITIONA L GROUND WHICH READS AS UNDER:- I. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE AO/DRP HAVE ERRED IN NOT GRANTING SET-OFF OF BROUGH T FORWARD LOSS AND UNABSORBED DEPRECIATION, AS PER THE PROVISIONS OF S ECTION 72 AND SECTION 32 OF THE ACT, BEFORE DETERMINING TOTAL INCOME OF T HE APPELLANT. 24. THE LD. DR DID NOT RAISE ANY OBJECTION TO THE A DMISSION OF THIS ADDITIONAL GROUND. AS SUCH, WE ARE ADMITTING THE A DDITIONAL GROUND AND TAKING IT UP FOR DISPOSAL ON MERITS. 25. THE GRIEVANCE RAISED BY THE LD. AR PROJECTED TH ROUGH THIS GROUND IS THAT THE AO DID NOT ALLOW THE BENEFIT OF BROUGHT FO RWARD LOSSES AND UNABSORBED DEPRECIATION. WE DIRECT THE AO TO EXAMI NE THE ASSESSEES CLAIM AND ALLOW NECESSARY RELIEF, IF ANY, AS PER LA W. ITA NO.775/MUM/2015 25 26. IN THE RESULT, THE APPEAL IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. THE ORDER PRONOUNCED IN THE OPEN COURT ON 01.03.201 7. SD/- SD/- [KULDIP SINGH] [R.S. SYAL] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED, 01 ST MARCH, 2017. DK COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT AR, ITAT, NEW DELHI.