HAMON SHRIRAM COTTRELL P. LTD, MUMBAI V. ITO 8(2)(1), MUMBAI

ITA 7982/MUM/2011

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 3636 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-04-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: K
• Next Hearing Date: 16-04-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 25-11-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AJEET KUMAR JAIN
• Assessee Lawyers: S N INAMDAR
• Keywords: Transfer pricing; International transaction; Retrospective amendment
• Section: 143(3); 144

Judgement Text

, , , , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES K, MUMBAI .. , ! '# , $ !, % BEFORE SHRI R.S.SYAL, AM AND SHRI VIJAY PAL RAO, JM ITA NO.7982/MUM/2011 : ASST.YEAR 2007-2008 M/S.HAMON SHRIRAM COTTRELL PVT.LTD. MAIN FRAME, 3A-8A GROUND FLOOR ROYAL PALMS COMPLEX, GOREGAON (EAST) MUMBAI 400 065. PAN : AAACT2254Q. THE INCOME TAX OFFICER WARD 8(2) MUMBAI. ( &' / // / APPELLANT) ) ) ) ) / VS. ( *+&'/ RESPONDENT) &' , ,, , - - - - / APPELLANT BY : SHRI S.N.INAMDAR *+&' , - , - , - , - / RESPONDENT BY : SHRI AJEET KUMAR JAIN ) , . / / / / DATE OF HEARING : 16.04.2013 /01 , . / DATE OF PRONOUNCEMENT : 19.04.2013 !2 !2 !2 !2 / / / / O R D E R PER R.S.SYAL ( AM) : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 26.09.2011 PASSED BY THE ASSESSING OFFICER U/S 143( 3) READ WITH SECTION 144C(13) OF THE INCOME-TAX ACT, 1961 (HEREI NAFTER CALLED THE ACT) IN RELATION TO THE ASSESSMENT YEAR 2007-2008. 2. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT TH E ASSESSEE IS A PART OF HAMON DHONDT GROUP, WHICH IS HEADQUARTERED IN B ELGIUM WITH ITS ORIGINAL AND CORE BUSINESS OF DESIGN, MANUFACTU RE, SUPPLY, ERECTION AND SERVICING OF COOLING SYSTEMS, HEAT EXCHANGERS A ND AIR POLLUTION CONTROL SYSTEMS. THE ASSESSEE-COMPANY IS ENGAGED IN THE BUSINESS OF MANUFACTURING, DESIGNING, ENGINEERING AND SUPPLY OF COOLING TOWERS, SPARES AND PROVIDING ENGINEERING SERVICES. THE ASSE SSEE FILED ITS ITA NO.7982/MUM/2011. M/S.HAMON SHRIRAM COTTRELL PRIVATE LIMITED. 2 RETURN DECLARING TOTAL INCOME OF ` 11,42,254. THE ASSESSEE ENTERED INTO SIX TYPES OF INTERNATIONAL TRANSACTIONS WITH I TS ASSOCIATED ENTERPRISES (AES). BECAUSE OF SUCH INTERNATIONAL TR ANSACTIONS, THE ASSESSING OFFICER MADE REFERENCE U/S 92CA(1) TO THE TRANSFER PRICING OFFICER (TPO) FOR DETERMINATION OF ARMS LENGTH PRI CE (ALP). FIRST TRANSACTION WHICH IS DISPUTED IN THE PRESENT APPEAL IS THE PAYMENT OF MANAGEMENT FEES AMOUNTING TO ` 40,65,733 TO ITS AE. THE ALP OF THIS TRANSACTION WAS DETERMINED BY APPLYING COMPARA BLE UNCONTROLLED PRICE (CUP) METHOD. THE ASSESSEE CLAIM ED TO HAVE PAID THE SAID AMOUNT AT THE RATE OF 1.5% OF THE TURNOVER . THE TPO OBSERVED THAT THE TOTAL TURNOVER OF THE ASSESSEE WA S AT ` 16.21 CRORE. EVEN IF THE RATE OF 1.5% WAS ACCEPTED AT ALP, STILL A TRANSFER PRICING (TP) ADJUSTMENT OF ` 16,34,091 WAS CALLED FOR AS 1.5% RATE ON THE TURNOVER WOULD WORK OUT MANAGEMENT FEES AT ` 24.31 LAKH AS AGAINST THE AMOUNT PAID AT ` 40,65,733. THE SECOND ITEM WHICH IS DISPUTED IS TENDER COST REIMBURSED. THE ASSESSEE PAID ` 28,61,598 . THE TPO OBSERVED THAT THIS AMOUNT WAS PAID ON BEHALF OF AE (BELGIUM) AND THE SAME WAS NOT PAID BACK TO THE ASSESSEE. AS SUCH THE ALP OF THIS PAYMENT WAS TREATED AS NIL THEREBY PROPOSING AN ADJ USTMENT OF EQUAL AMOUNT AT ` 28.61 LAKH. THE THIRD ITEM IS R&D EXPENSES PAID BY THE ASSESSEE TO THE TUNE OF ` 47,72,982. THE ASSESSEE DETERMINED ALP OF THIS TRANSACTION BY APPLYING THE CUP METHOD. IT WAS OBSERVED BY THE TPO THAT A SUM OF ` 18.74 LAKH OUT OF THIS AMOUNT WAS A MERE PROVISION AND FURTHER A SUM OF ` 13.91 LAKH PERTAINED TO THE YEAR 2005. AN ADJUSTMENT OF ` 18.74 LAKH WAS RECOMMENDED IN RESPECT OF THE AMOUNT OF PROVISION. THAT IS HOW A TOTAL ADJUST MENT OF ` 63,69,689 ITA NO.7982/MUM/2011. M/S.HAMON SHRIRAM COTTRELL PRIVATE LIMITED. 3 WAS PROPOSED IN RESPECT OF THE ABOVE REFERRED THREE ITEMS. THERE IS NO CONTROVERSY IN RESPECT OF THE REMAINING INTERNATION AL TRANSACTIONS. THE AMOUNT AS PROPOSED BY THE TPO WAS ADDED BY THE A.O. IN THE DRAFT ORDER PASSED U/S 143(3) READ WITH SECTION 144 C(1) ON 15.11.2010. THE ASSESSEE AGITATED THE TP ADJUSTMENT S MADE THROUGH THE DRAFT ORDER BEFORE THE DISPUTE RESOLUTION PANEL (DRP). THE DRP NOTICED THAT THE PAYMENTS BY THE ASSESSEE TO ITS PA RENT AE IN RESPECT OF MANAGEMENT FEES, TENDER COST REIMBURSED AND R&D EXPENSES WERE IN THE NATURE OF INTRA GROUP TRANSACTIONS. IT WAS OPINED THAT NO PAYMENT IN RESPECT OF INTRA GROUP SERVICES COULD BE JUSTIFIED UNLESS IT WAS SHOWN THAT SOME TANGIBLE AND DIRECT BENEFIT WAS DERIVED AS A RESULT OF SUCH PAYMENT OR THAT THE PAYMENT MADE WAS COMMENSURATE WITH THE BENEFIT DERIVED OR EXPECTED TO BE DERIVED. AS SUCH A LETTER DATED 27.07.2011 WAS SENT BY THE DRP TO THE ASSESSE E SEEKING WRITTEN EXPLANATION, DOCUMENTATION AND EVIDENCE AS TO WHETH ER ANY SPECIFIED SERVICES WERE RENDERED; AND IF RENDERED, WHETHER TW O INDEPENDENT PARTIES WOULD BE WILLING TO PAY FOR SUCH SERVICES; AND IF TWO INDEPENDENT PARTIES WOULD BE WILLING TO PAY, WHAT W OULD BE THE BASIS AND AMOUNT OF SUCH PAYMENT. THE ASSESSEE WAS FURTHE R DIRECTED TO FURNISH DETAILS IN RESPECT OF MANAGEMENT FEES WHICH THE TPO HAD CONSIDERED AT 1.5% OF THE TURNOVER AS AT THE ALP. SINCE THE TPO, IN THE OPINION OF THE DRP, DID NOT EXAMINE AS TO WHETH ER ANY R&D SERVICES WERE RENDERED BY THE FOREIGN AE FOR WHICH A SUM OF ` 28.98 LAKH WAS ALLOWED, THE DRP REQUESTED THE ASSESSEE TO FURNISH NECESSARY DETAILS IN THIS REGARD ALSO. SIMILAR DIRE CTION WAS GIVEN QUA THE TENDER COST. THE ASSESSEE FILED A REPLY ON 16 .08.2011 WHICH THE ITA NO.7982/MUM/2011. M/S.HAMON SHRIRAM COTTRELL PRIVATE LIMITED. 4 DRP CONSIDERED TO BE A SIMPLE REITERATION OF WHAT W AS SUBMITTED BEFORE THE TPO. IN THE ABSENCE OF ANY ADDITIONAL IN FORMATION GIVEN BY THE ASSESSEE JUSTIFYING THESE PAYMENTS, THE DRP HELD THAT NO TANGIBLE AND DIRECT BENEFIT WAS DERIVED BY SUCH PAY MENT MADE BY THE ASSESSEE TO ITS AE. AS SUCH, THE DRP PROPOSED AN A DJUSTMENT OF ` 1,17,00,313 TO THE TOTAL INCOME AS AGAINST LOWER AM OUNT PROPOSED BY THE TPO. THE A.O. VIDE THE IMPUGNED ORDER PASSE D U/SS 143(3) READ WITH 144C(13) ON 26.09.2011 MADE AN ADDITION O F ` 1.17 CRORE AS SUGGESTED BY THE DRP. THE ASSESSEE IS IN APPEAL. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED T HE RELEVANT MATERIAL ON RECORD. THE FIRST QUESTION WHICH LOOMS LARGE BEFORE US IS AS TO WHETHER THE DRP IS EMPOWERED TO MODIFY THE TP OS ORDER TO THE PREJUDICE OF THE ASSESSEE WHEN THE OBJECTIONS H AVE BEEN TAKEN AGAINST THE DRAFT ORDER IN TERMS OF SECTION 144C(2) OF THE ACT. THE STAND OF THE ASSESSEE IS THAT WHEN IT APPROACHES TH E DRP FOR SEEKING SOME RELIEF AGAINST THE PROPOSED TP ADJUSTMENTS, TH E AUTHORITY CAN ONLY GRANT SOME RELIEF, IF PERMISSIBLE, BUT HAS NO POWER TO MAKE ENHANCEMENT. 4. IN ORDER TO FIND ANSWER TO THIS QUESTION, WE NEED TO REFER TO THE PROVISIONS OF SECTION 144C, WHICH DEAL WITH THE REF ERENCE TO THE DRP. SUB-SECTION (1) OF THIS SECTION PROVIDES THAT THE ASSESSING OFFICER SHALL, NOTWITHSTANDING ANYTHING TO THE CONTRARY CON TAINED IN THIS ACT, IN THE FIRST INSTANCE, FORWARD A DRAFT ORDER OF ASS ESSMENT TO THE ELIGIBLE ASSESSEE, IF HE PROPOSES TO MAKE ANY VARIATION IN THE INCOME OR LOSS ITA NO.7982/MUM/2011. M/S.HAMON SHRIRAM COTTRELL PRIVATE LIMITED. 5 RETURNED WHICH IS PREJUDICIAL TO THE INTEREST OF SU CH ASSESSEE. THE TERM 'ELIGIBLE ASSESSEE' HAS BEEN DEFINED IN SECT ION 144C(15)(B) INTER ALIA , TO MEAN : ` (I) ANY PERSON IN WHOSE CASE THE VARIATION REFERRED TO IN SUB-SECTION (1) ARISES AS A CONSEQUE NCE OF THE ORDER OF THE TRANSFER PRICING OFFICER PASSED UNDER SUB-SECTI ON (3) OF SECTION 92CA . IN TURN, SECTION 92CA(3) PROVIDES THAT AFTER TA KING INTO ACCOUNT ALL RELEVANT MATERIALS WHICH HE HAS GATHERE D, ` THE TRANSFER PRICING OFFICER SHALL, BY ORDER IN WRITING, DETERMI NE THE ARM'S LENGTH PRICE IN RELATION TO THE INTERNATIONAL TRANSACTION ..AND SEND A COPY OF HIS ORDER TO THE ASSESSING OFFICER AND TO THE AS SESSEE. SUB-SECTION (2) OF SECTION 144C PROVIDES THAT ON RECEIPT OF THE DRAFT ORDER, THE ELIGIBLE ASSESSEE SHALL, WITHIN THIRTY DAYS OF THE RECEIPT BY HIM OF THE DRAFT ORDER MAY, INTER ALIA , FILE HIS OBJECTIONS, IF ANY, TO SUCH VARIATION WITH THE DISPUTE RESOLUTION PANEL. A CIRC UMSPECTION OF THE ABOVE PROVISIONS INDICATES THAT THE ASSESSEE HAS BE EN CONFERRED WITH A RIGHT TO OBJECT BEFORE THE DRP TO ANY VARIATION IN THE INCOME INCLUDED IN THE DRAFT ORDER AS A RESULT OF DETERMINATION OF ALP BY THE TPO IN RESPECT OF INTERNATIONAL TRANSACTIONS. ONCE AN ASS ESSEE APPROACHES THE DRP OBJECTING TO THE VARIATIONS IN THE INCOME A S AFORESTATED, THEN IT BECOMES OBLIGATORY ON THE PART OF THE DRP UNDER SUB-SECTION (5) OF SECTION 144C TO ISSUE SUCH DIRECTIONS, AS IT THINK S FIT, FOR THE GUIDANCE OF THE ASSESSING OFFICER TO ENABLE HIM TO COMPLETE THE ASSESSMENT. WHAT CAN BE THE AMBIT OF THE DIRECTIONS OF THE DRP H AS BEEN MORE ELABORATELY ENSHRINED IN SUB-SECTION (8), WHICH PR OVIDES THAT : ` THE DISPUTE RESOLUTION PANEL MAY CONFIRM, REDUCE OR ENH ANCE THE VARIATIONS PROPOSED IN THE DRAFT ORDER SO, HOWEVER, THAT IT SHALL NOT ITA NO.7982/MUM/2011. M/S.HAMON SHRIRAM COTTRELL PRIVATE LIMITED. 6 SET ASIDE ANY PROPOSED VARIATION OR ISSUE ANY DIREC TION UNDER SUB- SECTION (5) FOR FURTHER ENQUIRY AND PASSING OF THE ASSESSMENT ORDER. A CLOSE SCRUTINY OF THE MANDATE OF THIS PROVISION I NDICATES THAT THE DRP HAS BEEN EMPOWERED NOT ONLY TO CONFIRM OR REDUC E THE VARIATION PROPOSED IN THE DRAFT ORDER TO THE BENEFIT OF THE A SSESSEE BUT ALSO TO ENHANCE IT TO THE PREJUDICE OF THE ASSESSEE. THIS POWER OF ENHANCEMENT WHICH WAS IMPLIEDLY EMBEDDED IN THE MA TTER OF ISSUING DIRECTIONS, DUE TO THE USE OF EXPRESSION `AS IT THI NKS FIT IN SUB- SECTION (5) HAS BEEN EXPRESSLY SET OUT IN SUB-SECTI ON (8) BY CATEGORICALLY STATING : ` ..OR ENHANCE THE VARIATIONS IN THE DRAFT ORDER. THUS IT IS VIVID THAT THE POWER OF THE DRP IN THIS REGARD IS NOT RESTRICTED TO ONLY GRANTING RELIEF ON THE OBJECTION S OF THE ASSESSEE AGAINST THE VARIATION IN THE INCOME RESULTING DUE T O THE ORDER OF THE TPO. IT CAN ALSO OPERATE THE OTHER WAY AROUND, IF T HE DRP REACHES THE CONCLUSION THAT THE TPO ERRED IN DETERMINING THE AL P CORRECTLY, WARRANTING FURTHER ADJUSTMENT. IN SUCH A SITUATION , THE ASSESSEE, OBJECTING TO THE VARIATION IN THE INCOME DUE TO THE ORDER OF THE TPO, MAY LAND IN DIFFICULTY, ENDING UP WITH THE ENHANCEM ENT OF VARIATION. 5. FROM THE ABOVE DISCUSSION IT FOLLOWS THAT THE DRP IS FULLY EMPOWERED TO ENHANCE THE VARIATIONS PROPOSED IN TH E DRAFT ORDER. THE NATURAL COROLLARY WHICH FOLLOWS IS THAT SO LONG AS THERE IS SOME VARIATION PROPOSED IN THE DRAFT ORDER, IT IS OPEN T O THE DRP TO ENHANCE THE AMOUNT OF SUCH VARIATION, APART FROM CONFIRMING OR REDUCING SUCH VARIATION. THERE CAN BE NO EMBARGO ON THE POWER OF THE DRP, ON A REFERENCE MADE BY THE ASSESSEE SEEKING RELIEF AGAIN ST THE PROPOSED ITA NO.7982/MUM/2011. M/S.HAMON SHRIRAM COTTRELL PRIVATE LIMITED. 7 ADJUSTMENT, TO ENHANCE THE TRANSFER PRICING ADJUS TMENT MADE BY THE A.O. PURSUANT TO THE TPOS ORDER. 6. ADVERTING TO THE FACTS OF THE INSTANT CAS E IT IS NOTICED THAT THE TPO PROPOSED ADJUSTMENT IN RESPECT OF MANAGEMENT FE E, TENDER COST REIMBURSED AND R&D EXPENSES TOTALING ` 63.69 LAKH AND THE DRP ENHANCED THIS VARIATION OF ` 63.69 LAKH TO ` 1.17 CRORE. AS THE SUBJECT MATTER OF ENHANCEMENT IN THE PRESENT CASE CONTINUES TO REMAIN THE SAME, BEING THE ADJUSTMENT FLOWING FROM THE TPOS O RDER, WE FIND NO FORCE IN THE CONTENTION THAT THE DRP OUGHT NOT TO H AVE VENTURED TO INCREASE THE VARIATION TO THE PREJUDICE OF THE ASSE SSEE IN A REFERENCE MADE BY THE ASSESSEE FOR REDUCTION OF THE AMOUNT OF ADJUSTMENT MADE IN THE DRAFT ASSESSMENT ORDER. 7. THE LD. DR PRESSED INTO SERVICE EXPLANATION TO SUB-SECTION (8) OF SECTION 144C FOR BOLSTERING HIS SUBMISSION IN SU PPORT OF THE ENHANCEMENT. AT THIS JUNCTURE, IT WOULD BE PRUDENT TO NOTE THE FINANCE ACT, 2012 HAS INSERTED THIS EXPLANATION WITH RETROSPECTIVE EFFECT FROM 01.04.2009 WHICH PROVIDES AS UNDER:- FOR THE REMOVAL OF DOUBTS, IT IS HEREBY DECLARED T HAT THE POWER OF THE DISPUTE RESOLUTION PANEL TO ENHANC E THE VARIATION SHALL INCLUDE AND SHALL BE DEEMED ALW AYS TO HAVE INCLUDED THE POWER TO CONSIDER ANY MATTER ARISING OUT OF THE ASSESSMENT PROCEEDINGS RELATING TO THE DRAFT ORDER, NOTWITHSTANDING THAT SUCH MATTER WAS R AISED OR NOT BY THE ELIGIBLE ASSESSEE. ITA NO.7982/MUM/2011. M/S.HAMON SHRIRAM COTTRELL PRIVATE LIMITED. 8 8. A CURSORY LOOK AT THE LANGUAGE OF THE EXPLANATION DIVULGES THAT THE POWER OF ENHANCEMENT OF THE DRP HAS BEEN FURTHE R WIDENED TO ALL THE MATTERS ARISING OUT OF THE ASSESSMENT PROCEEDIN GS RELATING TO DRAFT ORDER IRRESPECTIVE OF THE FACT WHETHER THEY WERE RA ISED OR NOT BY THE ASSESSEE. WITH THIS AMPLIFICATION OF THE SCOPE OF TH E POWER OF THE DRP, NOW EVEN THE MATTERS NOT AGITATED BY THE ASSES SEE BEFORE THE DRP CAN ALSO BE CONSIDERED FOR THE PURPOSES OF ENHA NCEMENT. IN OTHER WORDS, THE HITHERTO LIMITED SCOPE OF ENHANCIN G THE VARIATIONS PROPOSED IN THE DRAFT ORDER HAS BEEN EXPANDED TO EN COMPASS ANY MATTER ARISING OUT OF THE ASSESSMENT PROCEEDINGS RE LATING TO THE DRAFT ORDER IRRESPECTIVE OF THE FACT WHETHER OR NOT SUCH A MATTER WAS RAISED BY THE ASSESSEE. HOWEVER, IT IS PERTINENT TO NOTE T HAT THE INSERTION OF THE EXPLANATION HAS BEEN MADE WITH RETROSPECTIVE EFFECT FROM 01.04.2009. SINCE WE ARE DEALING WITH THE A.Y. 2007 -08, THE QUESTION AS TO WHETHER SUCH EXPLANATION WOULD ALSO BE APPLIC ABLE TO THE A.Y. 2008-09 OR EARLIER YEARS IS LEFT OPEN TO BE DECIDED ON A SUITABLE OCCASION. 9. BE THAT AS IT MAY THE FACTS PREVAILING IN T HE EXTANT CASE ARE FULLY COVERED BY THE MANDATE OF SUB-SECTION (8) OF SECTIO N 144C DE HORS THE EXPLANATION INSERTED RETROSPECTIVELY INASMUCH AS THE ENHANCEMENT HAS BEEN DIRECTED BY THE DRP IN RESPECT OF THE VARIATIONS PROPOSED IN THE DRAFT ORDER. WE, THEREFOR E, HOLD THAT THE DRP WAS RIGHT IN PRINCIPLE TO EMBARK UPON THE QUEST ION OF ENHANCEMENT OF THE TP ADJUSTMENTS MADE BY THE A.O. IN THE DRAFT ORDER. ITA NO.7982/MUM/2011. M/S.HAMON SHRIRAM COTTRELL PRIVATE LIMITED. 9 10. THE LEARNED COUNSEL FOR THE ASSESSEE CONTENDED THROUGH GROUND NO.1 THAT THE DRP DID NOT GIVE REASONABLE OPPORTUNI TY OF BEING HEARD TO THE ASSESSEE. HERE IT IS RELEVANT TO NOTE THAT T HE SHOW CAUSE NOTICE DATED 27 TH JULY, 2011 WAS ISSUED BY THE DRP FOR ENHANCEMENT O F INCOME FIXING THE DATE OF HEARING AS 8 TH AUGUST, 2011. THE SAID NOTICE WAS RECEIVED BY THE ASSESSEE ON 1 ST AUGUST, 2011. THE ASSESSEE APPEARED BEFORE THE DRP ON THE SCHEDULED DATE REQUE STING FOR FURTHER TIME TO COMPILE THE RELEVANT DETAILS WHICH WERE QUI TE VOLUMINOUS. ONLY ONE WEEKS TIME WAS GIVEN. ON 16 TH AUGUST, 2011 THE ASSESSEE FURNISHED SOME DETAILS AND SOUGHT FURTHER TIME OF 1 0 DAYS FOR FURNISHING COMPLETE DETAILS. HOWEVER, THE DRP PASS ED ORDER ON 18 TH AUGUST, 2011 ITSELF DIRECTING THE AO TO MAKE ADJUST MENT OF ` 1.17 CRORE INSTEAD OF ` 63.69 LAKH AS ORIGINALLY MADE IN THE DRAFT ORDER. T HE LEARNED AR SUBMITTED THAT IT WAS VERY DIFFICULT TO COMPILE THE DOCUMENTS REQUIRED BY THE DRP IN SUCH A SHORT SPAN OF TIME. IT WAS PRAYED THAT ONE MORE OPPORTUNITY BE GRANTED TO THE ASSESSEE SINCE THE PROCESS OF COLLECTION OF ALL THE NECESSARY DOCUMENT S STOOD COMPLETED BY THE ASSESSEE AS OF NOW. NO SERIOUS OBJECTION WAS TAKEN BY THE LEARNED DEPARTMENTAL REPRESENTATIVE IN THIS REGARD. IN THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE, WE ARE OF THE CO NSIDERED OPINION THAT IT WOULD BE IN THE FITNESS OF THINGS IF THE IM PUGNED ORDER IS SET ASIDE AND THE MATTER IS RESTORED TO THE DRP FOR GIV ING AN EFFECTIVE OPPORTUNITY TO THE ASSESSEE TO PRESENT ITS CASE. WE ORDER ACCORDINGLY AND DIRECT THE DRP TO ISSUE DIRECTIONS U/S 144C(5) AFRESH AS PER LAW AFTER ALLOWING A REASONABLE OPPORTUNITY OF BEING HE ARD TO THE ASSESSEE. NEEDLESS TO SAY THE ASSESSEE WILL BE AT L IBERTY TO FILE ANY ITA NO.7982/MUM/2011. M/S.HAMON SHRIRAM COTTRELL PRIVATE LIMITED. 10 FRESH EVIDENCE / DOCUMENTS IN SUPPORT OF ITS CASE B EFORE THE DRP IN SUCH DE NOVO PROCEEDINGS. 11. IN VIEW OF OUR ABOVE DECISION OF REMITTI NG THE MATTER TO THE DRP, THERE IS NO NEED TO ADJUDICATE UPON THE GROUND S RAISED AGAINST THE SEPARATE ADDITIONS IN RESPECT OF MANAGEMENT FEE S, TENDER COST REIMBURSED AND R&D EXPENSES, ON MERITS. 12. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIS TICAL PURPOSES. ORDER PRONOUNCED ON THIS 19 TH DAY OF APRIL, 2013. !2 , /01 3!)4 0 , 5 SD/- SD/- (VIJAY PAL RAO) (R.S.SYAL) $ $ $ $ ! ! ! ! / JUDICIAL MEMBER ! ! ! ! / ACCOUNTANT MEMBER MUMBAI ; 3!) DATED : 19 TH APRIL, 2013. DEVDAS* !2 , *$.6' 7'1. !2 , *$.6' 7'1. !2 , *$.6' 7'1. !2 , *$.6' 7'1./ COPY OF THE ORDER FORWARDED TO : 1. &' / THE APPELLANT 2. *+&' / THE RESPONDENT. 3. 8 () / THE CIT, MUMBAI. 4. 8 / DRP-I , MUMBAI 5. ';5 *$.$) , , / DR, ITAT, MUMBAI 6. 5< = / GUARD FILE. !2) !2) !2) !2) / BY ORDER, +'. *$. //TRUE COPY// > > > >/ // /? # ? # ? # ? # ( DY./ASSTT. REGISTRAR) , , , , / ITAT, MUMBAI