Nikon India Private Limited, Gurgaon V. DCIT, Circle-3(1), Gurgaon

ITA 8753/DEL/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 1231 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-05-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: I2
• Assessment Year: 2015-2016
• Appeal Filed On: 08-11-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G.K. DHALL
• Keywords: Transfer pricing; International transaction; Wholly owned subsidiary; Set aside
• Section: 271(1)(c); 92C; 143(3); 92B; 234B; 144C; 274; 113; 13; 92CA; 20

Judgement Text

1 ITA NO. 8752 & 8753/DEL/2019 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: I(2) NEW DELHI BEFORE MS SUCHITRA KAMBLE, JUDICIAL MEM BER, AND SHRI PRASHANT MAHARISHI, ACCOU NTANT MEMBER ITA NO. 8752/DEL/2019 ( A.Y 2012-13) ITA NO. 8753/DEL/2019 ( A.Y 2015-16) NIKON INDIA PVT. LTD. PLOT NO. 71, SECTOR-32, INSTITUTIONAL AREA, GURGAON, HARYANA AACCN5100F (APPELLANT) VS DCIT CIRCLE-3(1) GURGAON, HARYANA (RESPONDENT) APPELLANT BY SH. VISHAL KALRA & SH. ANKIT SAHNI, ADVS RESPONDENT BY SH. G. K. DHALL, CIT DR ORDER PER SUCHITRA KAMBLE, JM THESE TWO APPEALS ARE FILED BY THE ASSESSEE AGAINST THE ASSESSMENT ORDERS DATED 18/10/2019 AND 10.10.2019 PASSED BY TH E ASSESSING OFFICER U/S 143 (3) READ WITH SECTION 144C OF THE INCOME TAX AC T, 1961, FOR ASSESSMENT YEAR 2012-13 AND 2015-16 RESPECTIVELY. 2. THE GROUNDS OF APPEAL ARE AS UNDER:- ITA NO. 8752/DEL/2019 APPEAL UNDER SECTION 253(1) OF THE INCOME TAX ACT, 1961 (THE ACT) AGAINST THE ORDER DATED OCTOBER 18, 2019 (RECEIVED ON OCTOB ER 23, 2019) PASSED UNDER SECTION 143(3) READ WITH SECTION 144C OF THE ACT BY THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE 3(1), GURGAON (T HE AO) FOR THE AFORESAID ASSESSMENT YEAR (AY) GROUNDS OF APPEAL DATE OF HEARING 02.03.2020 DATE OF PRONOUNCEMENT 27.05.2020 2 ITA NO. 8752 & 8753/DEL/2019 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE AO HAS ERRED IN ASSESSING THE TOTAL INCOME OF THE APPELLAN T UNDER SECTION 143(3) OF THE ACT, FOR THE SUBJECT ASSESSMENT YEAR AT INR 123 ,92,03,240 AS AGAINST THE RETURNED INCOME OF INR 5,42,98,030. 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE INITIAL ORDER DATED DECEMBER 18, 2018, AND THE CONSEQUENTIA L ORDERS PASSED IN PURSUANCE THERETO ARE BAD IN LAW AND VOID AB-INITIO AS THE SAME HAVE BEEN PASSED IN VIOLATION OF THE STATUTORY PROVISIONS OF SECTION 144C OF THE ACT. 2.1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE AO BY ISSUING NOTICE OF DEMAND UNDER SECTION 156 AND PENA LTY NOTICE UNDER SECTION 274 READ WITH SECTION 271 (1 )(C) OF THE ACT, ALONG WITH THE ORDER DATED DECEMBER 18, 2018 (TITLED AS DRAFT ASSESSMENT ORDE R) HAS IN A WAY PASSED A FINAL ASSESSMENT ORDER AS AGAINST THE DRAFT ASSES SMENT ORDER CONTEMPLATED UNDER SECTION 144C(1) OF THE ACT IN THE CASE OF AN ELIGIBLE ASSESSEE. 3. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE ORDERS PASSED BY THE AO / TPO WERE BAD IN LAW AS THE PRE-R EQUISITE FOR APPLYING CHAPTER - X, IE, EXISTENCE OF INTERNATIONAL TRANSAC TION BETWEEN TWO ASSOCIATED ENTERPRISES (AE) UNDER SECTION 92B OF THE ACT, WA S NOT SATISFIED OR EXISTED AS THERE WAS NO AGREEMENT, UNDERSTANDING OR ARRANGE MENT BETWEEN THE APPELLANT AND THE AE FOR INCURRENCE OF SUCH EXPENDI TURE BY THE APPELLANT AND THE DISPUTE RESOLUTION PANEL (DRP) ERRED IN UPHOL DING THE SAME. 3.1 THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE ORDERS PASSED BY THE AO / DRP/ TPO ARE BAD IN LAW AS THE U NILATERAL AMP EXPENDITURE INCURRED HAS BEEN CATEGORIZED AS INTER NATIONAL TRANSACTION WITHOUT PASSING A SPEAKING / REASONED ORDER RECORDI NG SATISFACTION IN RELATION TO CHARACTERISATION / CATEGORIZATION OF TH E AMP EXPENDITURE AS AN INTERNATIONAL TRANSACTION. 3.2 THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE TPO ERRED IN RE-CHARACTERIZING THE UNILATERAL AMP EXPENDITURE BEING PAYMENTS MADE BY APPELLANT TO INDEPENDENT THIRD PARTIES AS AN INTER NATIONAL TRANSACTION UNDER CHAPTER X OF THE ACT, PARTICULARLY WHEN SECTION 92C A OF THE ACT, ENABLES THE TPO ONLY TO COMPUTE THE ARMS LENGTH PRICE (ALP) OF THE INTERNATIONAL TRANSACTION. 4. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE TPO ERRED IN SUO-MOTO BENCHMARKING THE ALLEGED INTERNATIONAL TRANSACTION RELATED TO AMP EXPENDITURE WITHOUT THEIR BEING ANY ORDER OR RE FERENCE FROM THE AO IN RELATION THERETO. NOTWITHSTANDING AND WITHOUT PREJUDICE TO THE ABOVE GROUNDS THAT THE AMP EXPENDITURE INCURRED BY THE APPELLANT DOES NOT CONSTITUTE AN INTERNATIONAL TRANSACTION UNDER CHAPTER X OF THE AC T, THE APPELLANT 3 ITA NO. 8752 & 8753/DEL/2019 CRAVES TO RAISE FOLLOWING GROUNDS ON MERITS: RE: ADDITIONS ON SUBSTANTIVE BASIS : 5. THAT ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE AO / TPO HAVE ERRED IN MAKING AN ADJUSTMENT OF INR 1,59,39,1 95 IN AN ARBITRARY AND AD-HOC MANNER, WITHOUT SHARING THE REASONS FOR DEVI ATION FROM THE REMAND PROCEEDINGS, AS THE TPO VIDE REMAND REPORT DATED 26 .07.2019, ADMITTED THAT UNDER INTENSITY METHOD THERE IS NIL ADJUSTMENT. 5.1 NOTWITHSTANDING AND WITHOUT PREJUDICE, THAT THE AO / TPO HAVE ERRED IN NOT GRANTING THE BENEFIT OF (+/-) 5% RANGE AS CONTE MPLATED IN PROVISO SECTION 92C(2) OF THE ACT. RE: ADDITIONS ON PROTECTIVE BASIS: 6. THAT ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, DRP HAS ERRED IN NOT DIRECTING AO / TPO TO EXCLUDE THE SALES AND DIS TRIBUTION EXPENDITURE FROM THE QUANTUM OF ALLEGED EXCESSIVE AMP EXPENDITURE WH ILE BENCHMARKING THE ALLEGED INTERNATIONAL TRANSACTION USING SUBSTANTIVE AND / OR PROTECTIVE METHODS, DISREGARDING THE DECISION OF THE HONBLE T RIBUNAL IN APPELLANTS OWN CASE FOR THE SUBJECT ASSESSMENT YEAR. 7. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE AO / DRP / TPO HAVE ERRED IN ENHANCING THE TRANSFER PRICING ADJUSTMENT TO INR 118,49,05,211 IN THE REMAND PROCEEDINGS AS AGAINST ADJUSTMENT OF INR 51,89,69,687 MADE IN FIRST ROUND, WITHOUT APPRECIAT ING THAT THE ASSESSEE COULD NOT BE IN A WORSE-OFF POSITION IN REMAND PROC EEDINGS. 8. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE AO / DRP / TPO ERRED IN APPLYING BRIGHT LINE TEST (BLT) AN D COST PLUS METHOD (CPM) FOR MAKING TRANSFER PRICING ADJUSTMENT OF I NR 118,49,05,211 UNDER BOTH THE METHODS ON PROTECTIVE BASIS. THE LOWER AUT HORITIES HAVE FURTHER GROSSLY ERRED IN NOT ADHERING TO THE BINDING ORDER OF THE HONBLE TRIBUNAL IN APPELLANT'S OWN CASE, WHEREIN THE HON'BLE TRIBUNAL EXPRESSLY DIRECTED TO COMPUTE THE ADJUSTMENT ON AN AGGREGATE BASIS IN THE FIRST ROUND OF PROCEEDINGS. 9. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE AO / DRP / TPO HAVE GROSSLY ERRED IN ARBITRARILY APPLY ING CPM FOR MAKING TRANSFER PRICING ADJUSTMENT AMOUNTING TO INR 1,18,4 9,05,211, ON PROTECTIVE BASIS, WITHOUT APPRECIATING THAT THE CPM AND BLT AR E ONE AND THE SAME, AND THAT BLT HAS BEEN EXPRESSLY REJECTED BY THE HON'BLE TRIBUNAL IN' APPELLANTS OWN CASE. 10. THAT ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE AO / DRP / TPO HAVE ERRED IN MAKING AN ADJUSTMENT IN RES PECT OF ALLEGED INTERNATIONAL TRANSACTION OF EXCESSIVE AMP EXPENDIT URE, WITHOUT APPRECIATING THAT ADJUSTED GROSS PROFIT MARGIN AS WELL AS OPERAT ING MARGIN OF THE APPELLANT 4 ITA NO. 8752 & 8753/DEL/2019 WAS BETTER THAN THE COMPARABLE COMPANIES. 11. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, AO / DRP / TPO HAVE ERRED IN DETERMINING THE ROUTINE AMP EXPENDITURE BY USING ARBITRARY AMP/SALES RATIO OF 0.46%, WHICH WAS DEVOI D COGENT AND BASIS. 12. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CAS E AND IN LAW, AO / DRP / TPO HAVE ERRED IN NOT APPRECIATING THAT THE A PPELLANT HAD NOT PROVIDED ANY VALUE ADDED / BRAND BUILDING SERVICES TO ITS AE BY INCURRING AMP EXPENDITURE, AND THEREFORE, NO MARK-UP COULD HAVE B EEN CHARGED / LEVIED ON SUCH EXPENDITURE, EVEN IF THE SAME WAS TO BE CHARAC TERIZED AS AN INTERNATIONAL TRANSACTION. 12.1. NOTWITHSTANDING AND WITHOUT PREJUDICE THAT NO MARK-UP COULD HAVE BEEN LEVIED, ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, AO / DRP / TPO HAVE ERRED IN LAW AND FACTS, IN SELECTING IMP ROPER COMPANIES AS COMPARABLE COMPANIES FOR PURPOSE OF COMPUTING MARKU P FOR THE ALLEGED INTERNATIONAL TRANSACTION WITHOUT APPRECIATING THAT THE SAME ARE FUNCTIONALLY DIFFERENT. 13. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE AO / DRP / TPO HAVE ERRED IN NOT GRANTING SET-OFF OF E XCESS PROFIT FROM DISTRIBUTION OF PRODUCTS WHILE BENCHMARKING THE ALL EGED INTERNATIONAL TRANSACTION OF INCURRING EXCESSIVE AMP EXPENDITURE AS HAS BEEN HELD BY THE HONBLE DELHI HIGH COURT IN THE CASE OF SONY ERICSO N MOBILE COMMUNICATIONS INDIA PVT. LTD.: 374 ITR 118(DEL). 14. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE AO / DRP / TPO HAVE ERRED IN NOT GRANTING QUANTITATIVE / ECONOMIC ADJUSTMENTS (SUCH AS NON-PAYMENT OF ROYALTY / EXPENSES INCURRED ON NEW PRODUCT LAUNCHES) WHILE QUANTIFYING ARMS LENGTH PRICE OF T HE ALLEGED INTERNATIONAL TRANSACTION OF AMP EXPENDITURE. 15. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE AO HAVE ERRED IN LEVYING / CHARGING INTEREST UNDER SEC TIONS 234B AND 234C OF THE ACT. EACH OF THE ABOVE GROUNDS ARE INDEPENDENT AND WIT HOUT PREJUDICE TO THE OTHER GROUNDS OF APPEAL PREFERRED BY THE APPELLANT. ITA NO. 8753/DEL/2019 APPEAL UNDER SECTION 253(1) OF THE INCOME TAX ACT, 1961 (THE ACT) AGAINST THE ORDER DATED OCTOBER 18, 2019 (RECEIVED ON OCTOB ER 23, 2019) PASSED UNDER SECTION 143(3) READ WITH SECTION 144C OF THE ACT BY THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE 3(1), GURGAON (T HE AO) FOR THE AFORESAID ASSESSMENT YEAR (AY) 5 ITA NO. 8752 & 8753/DEL/2019 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE AO HAS ERRED IN ASSESSING THE TOTAL INCOME OF THE APPELLAN T UNDER SECTION 143(3) OF THE ACT, FOR THE SUBJECT ASSESSMENT YEAR AT INR 163 ,25,39,320 AS AGAINST THE RETURNED INCOME OF INR 64,39,34.320/-. 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE INITIAL ORDER DATED DECEMBER 18, 2018, AND THE CONSEQUENTIA L ORDERS PASSED IN PURSUANCE THERETO ARE BAD IN LAW AND VOID AB-INITIO AS THE SAME HAVE BEEN PASSED IN VIOLATION OF THE STATUTORY PROVISIONS OF SECTION 144C OF THE ACT. 2.1 THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE AO BY ISSUING NOTICE OF DEMAND UNDER SECTION 156 AND P ENALTY NOTICE UNDER SECTION 274 READ WITH SECTION 271 (1 )(C) OF THE AC T, ALONG WITH THE ORDER DATED DECEMBER 18, 2018 (TITLED AS DRAFT ASSESSMENT ORDE R) HAS IN A WAY PASSED A FINAL ASSESSMENT ORDER AS AGAINST THE DRAFT ASSES SMENT ORDER CONTEMPLATED UNDER SECTION 144C(1) OF THE ACT IN THE CASE OF AN ELIGIBLE ASSESSEE. 3. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE ORDERS PASSED BY THE AO / TPO WERE BAD IN LAW AS THE PRE-R EQUISITE FOR APPLYING CHAPTER - X, IE, EXISTENCE OF INTERNATIONAL TRANSAC TION BETWEEN TWO ASSOCIATED ENTERPRISES (AE) UNDER SECTION 92B OF THE ACT, WA S NOT SATISFIED OR EXISTED AS THERE WAS NO AGREEMENT, UNDERSTANDING OR ARRANGE MENT BETWEEN THE APPELLANT AND THE AE FOR INCURRENCE OF SUCH EXPENDI TURE BY THE APPELLANT AND THE DISPUTE RESOLUTION PANEL (DRP) ERRED IN UPHOL DING THE SAME. 3.1 THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE ORDERS PASSED BY THE AO / DRP/ TPO ARE BAD IN LAW A S THE UNILATERAL AMP EXPENDITURE INCURRED HAS BEEN CATEGORIZED AS INTER NATIONAL TRANSACTION WITHOUT PASSING A SPEAKING / REASONED ORDER RECORDI NG SATISFACTION IN RELATION TO CHARACTERISATION / CATEGORIZATION OF THE AMP EXP ENDITURE AS AN INTERNATIONAL TRANSACTION. 3.2 THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE TPO ERRED IN RE-CHARACTERIZING THE UNILATERAL AMP EXPEN DITURE BEING PAYMENTS MADE BY APPELLANT TO INDEPENDENT THIRD PARTIES AS A N INTERNATIONAL TRANSACTION UNDER CHAPTER X OF THE ACT, PARTICULAR LY WHEN SECTION 92CA OF THE ACT, ENABLES THE TPO ONLY TO COMPUTE THE ARMS LENG TH PRICE (ALP) OF THE INTERNATIONAL TRANSACTION. 4. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE TPO ERRED IN SUO-MOTO BENCHMARKING THE ALLEGED INTERNATIONAL TRANSACTION RELATED TO AMP EXPENDITURE WITHOUT THEIR BEING ANY ORDER OR RE FERENCE FROM THE AO IN RELATION THERETO. NOTWITHSTANDING AND WITHOUT PREJUDICE TO THE ABOVE GROUNDS THAT THE AMP EXPENDITURE INCURRED BY THE APPELLANT DOES NOT CONSTITUTE AN INTERNATIONAL TRANSACTION UNDER CHAPTER X OF THE AC T, THE APPELLANT 6 ITA NO. 8752 & 8753/DEL/2019 CRAVES TO RAISE FOLLOWING GROUNDS ON MERITS: 5. THAT ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, DRP HAS ERRED IN NOT DIRECTING AO / TPO TO EXCLUDE THE SALES AND DIS TRIBUTION EXPENDITURE FROM THE QUANTUM OF ALLEGED EXCESSIVE AMP EXPENDITURE WH ILE BENCHMARKING THE ALLEGED INTERNATIONAL TRANSACTION USING SUBSTANTIVE AND / OR PROTECTIVE METHODS, DISREGARDING THE DECISION OF THE HONBLE T RIBUNAL IN APPELLANTS OWN CASE AND VARIOUS DECISIONS OF THE HIGH COURT. 6. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE AO / DRP / TPO GROSSLY ERRED IN APPLYING BRIGHT LINE TEST ( BLT) FOR MAKING TRANSFER PRICING ADJUSTMENT AMOUNTING TO INR 98,86,05,077, O N PROTECTIVE BASIS, WITHOUT APPRECIATING THAT BLT HAS BEEN EXPRESSLY RE JECTED BY THE HONBLE TRIBUNAL IN APPELLANTS OWN CASE FOR EARLIER AYS. 6.1. NOTWITHSTANDING AND WITHOUT PREJUDICE TO THE G ROUND THAT BLT IS NOT A STATUTORY METHOD, AO / TPO HAVE ERRED IN ARBITRAR ILY SELECTING THE IMPROPER COMPANY NAMELY, BHARAT IT SERVICES LIMITED FOR THE PURPOSES OF BLT WITHOUT APPRECIATING THAT THE SAME IS FUNCTIONALLY NOT COMP ARABLE. FURTHER, DRP ERRED IN SUMMARILY UPHOLDING THE ORDER OF AO / TPO. 6.2. NOTWITHSTANDING AND WITHOUT PREJUDICE TO THE G ROUND THAT BLT IS NOT A STATUTORY METHOD, AO / TPO HAVE INCORRECTLY COMPU TED THE AMP/SALES RATIO OF COMPANIES, NAMELY, (I) IDEA TELESYSTEMS LIMITED, (II) SAVEX COMPUTERS LIMITED, AND (III) BHARAT IT SERVICES LIMITED. 7. THAT ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE AO / DRP / TPO HAVE ERRED IN MAKING AN ADJUSTMENT IN RESPECT O F ALLEGED INTERNATIONAL TRANSACTION OF AMP EXPENDITURE, WITHOUT APPRECIATIN G THAT ADJUSTED GROSS PROFIT MARGIN AS WELL AS OPERATING MARGIN OF THE AP PELLANT WAS BETTER THAN THE COMPARABLE COMPANIES. 8. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, AO / DRP / TPO HAVE ERRED IN NOT APPRECIATING THAT THE APPELLA NT HAS NOT PROVIDED ANY VALUE ADDED / BRAND BUILDING SERVICES TO ITS AE BY INCURRING AMP EXPENDITURE, AND THEREFORE, NO MARK-UP COULD HAVE BEEN CHARGED / LEVIED ON SUCH EXPENDITURE, EVEN IF THE SAME WAS TO BE CHARACTERIZ ED AS AN INTERNATIONAL TRANSACTION. 8.1 NOTWITHSTANDING AND WITHOUT PREJUDICE THAT NO MARK-UP COULD HAVE BEEN LEVIED, ON THE FACTS 'AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE AO / TPO HAVE ERRED IN SELECTING IMPROPER COMPARABLE COM PANIES FOR APPLICATION OF MARK-UP, BEING ENTITIES PROVIDING MARKET SUPPORT FU NCTIONS. FURTHER, THE DRP ERRED IN UPHOLDING THE ERRONEOUS APPROACH OF AO / T PO. 8.2. NOTWITHSTANDING AND WITHOUT PREJUDICE THAT NO MARK-UP COULD HAVE BEEN LEVIED, ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, AO / DRP 7 ITA NO. 8752 & 8753/DEL/2019 / TPO HAVE ERRED IN SELECTING / FUNCTIONALLY INCOMP ARABLE COMPANIES OR HAD INSUFFICIENT DATA, NAMELY, (I) MAJESTIC RESEARCH SE RVICES & SOLUTIONS LIMITED, (II) KILLICK AGENCIES & MARKETING LIMITED AND (III) FCBULKA ADVERTISING PRIVATE LIMITED, AS COMPARABLES FOR PURPOSE OF COMPUTING MA RK-UP FOR THE ALLEGED INTERNATIONAL TRANSACTION. 9. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE AO / DRP / TPO HAVE ERRED IN NOT GRANTING SET-OFF OF EXCESS PROFIT FROM DISTRIBUTION OF PRODUCTS WHILE BENCHMARKING THE ALLEGED INTERNATION AL TRANSACTION OF INCURRENCE OF EXCESSIVE AMP EXPENDITURE AS HAS BEEN HELD BY THE HONBLE DELHI HIGH COURT IN THE CASE OF SONY ERICSON MOBILE COMMUNICATIONS INDIA PVT. LTD.: 374 ITR 118(DEL). 10. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CAS E AND IN LAW, THE AO / DRP / TPO HAVE ERRED IN NOT GRANTING QUANTITATIVE / ECONOMIC ADJUSTMENTS (SUCH AS NON-PAYMENT OF ROYALTY / EXPENSES INCURRED ON NEW PRODUCT LAUNCHES) WHILE QUANTIFYING ARMS LENGTH PRICE OF T HE ALLEGED INTERNATIONAL TRANSACTION OF AMP EXPENDITURE. 11. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE DRP ERRED IN NOT DIRECTING THE AO TO ALLOW DEDUCTION UN DER SECTION 43B(A) OF THE ACT FOR CUSTOM DUTY AMOUNTING INR 52,31,95,566, PAI D UNDER PROTEST DURING THE SUBJECT ASSESSMENT YEAR FOR GOODS PURCHASED AND CLEARED DURING THE SUBJECT YEAR. 12. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE AO HAVE ERRED IN LEVYING / CHARGING INTEREST UNDER SEC TIONS 234B AND 234C OF THE ACT. EACH OF THE ABOVE GROUNDS ARE INDEPENDENT AND WITH OUT PREJUDICE TO THE OTHER GROUNDS OF APPEAL PREFERRED BY THE APPELLANT. THE APPELLANT PRAYS FOR LEAVE TO ADD, ALTER, VARY, OMIT, SUBSTITUTE OR AMEND THE ABOVE GROUNDS OF APPEAL, AT ANY TIME BEFORE, OR AT, THE TIME OF HEARING OF THE APPEAL. 3. BOTH THE APPEALS ARE HAVING IDENTICAL GROUNDS IN RESPECT OF CHALLENGING THE ASSESSMENT ORDER ON THE GROUND THAT THE SAME IS BAD IN LAW AND VOID-AB- INITIO. THEREFORE, WE ARE FIRSTLY TAKING UP FACTS F OR A.Y. 2012-13. DURING THE RELEVANT ASSESSMENT YEAR NIKON INDIA PRIVATE LIMITE D, I.E., THE ASSESSEE COMPANY WAS A WHOLLY OWNED SUBSIDIARY OF NIKON CORP ORATION, JAPAN. THE ASSESSEE COMPANY IS INTER-ALIA ENGAGED IN IMPORT, S ALES AND DISTRIBUTION FOR NIKON IMAGING PRODUCTS IN INDIA THROUGH NETWORK OF LOCAL DISTRIBUTORS. THE ASSESSEE FILED ITS RETURN OF INCOME DECLARING INCOM E OF RS. 5,42,98,030. THE 8 ITA NO. 8752 & 8753/DEL/2019 CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY UNDE R SECTION 143(3) OF THE ACT. THE ASSESSEE HAD DISCLOSED FOLLOWING INTERNATIONAL TRANSACTIONS WITH ITS ASSOCIATED ENTERPRISE (AE), WHICH WERE DULY REPORTE D IN FORM 3CEB AND BENCHMARKED IN TP STUDY. THESE TRANSACTIONS WERE AC CEPTED TO BE AT ARMS LENGTH (ALP) BY THE TRANSFER PRICING OFFICER (TPO) / ASSESSING OFFICER. SR. NO. INTERNATIONAL TRANSACTION TRANSFER PRICING METHOD TOTAL VALUE OF TRANSACTION (AMOUNT IN INR) 1 PURCHASE OF PRODUCTS, SPARES, PROMOTIONAL AND OTHER SUPPLIES RESALE PRICE METHOD (RPM) 5,306,499,488 2 PURCHASE OF FIXED ASSETS TRANSACTIONAL NET MARGIN METHOD (TNMM) 5,664,445 3 SALES AND SERVICE SUPPORT INCOME TRANSACTIONAL NET MARGIN METHOD (TNMM) 18,684,779 4 COMMISSION INCOME TRANSACTIONAL NET MARGIN METHOD (TNMM) 252,061,329 5 PURCHASE OF FIXED ASSETS COMPARABLE UNCONTROLLED PRICE METHOD (CUP) 8,527,876 6 COST REIMBURSEMENTS RECEIVED COMPARABLE UNCONTROLLED PRICE 2,151,406 9 ITA NO. 8752 & 8753/DEL/2019 METHOD (CUP) 7 COST REIMBURSEMENTS PAID COMPARABLE UNCONTROLLED PRICE METHOD (CUP) 82,281,676 THE TPO VIDE ORDER DATED 28,2016, HELD THAT THE ASS ESSEE WAS INCURRING EXCESSIVE ADVERTISEMENT, MARKETING AND PROMOTION EX PENDITURE (AMP) FOR DEVELOPMENT OF THE BRAND OWNED BY ITS FOREIGN AE, T HEREFORE SUCH EXCESSIVE AMP EXPENDITURE WOULD AMOUNT TO INTERNATIONAL TRAN SACTION. CONSEQUENTLY, THE TPO MADE THE FOLLOWING ADJUSTMENTS ON ACCOUNT O F EXCESSIVE AMP EXPENDITURE: PARTICULARS AMOUNT (INR) AMP ADJUSTMENT ON SUBSTANTIVE BASIS USING COST PLUS METHOD 51,89,69,687 AMP ADJUSTMENT ON PROTECTIVE BASIS USING BRIGHT LIN E TEST (BLT) METHOD 1,21,37,90,558 THE ASSESSING OFFICER PASSED THE DRAFT ASSESSMENT ORDER DATED 16.02.2016, IN CONFORMITY WITH THE ORDER OF THE TPO AND DETERMINED THE TOTAL INCOME OF THE ASSESSEE AT RS. 57,32,67,720/- AS AGAINST THE RETUR NED INCOME OF RS. 5,42,98,030/-. THEREAFTER, THE ASSESSEE FILED OBJEC TIONS AGAINST THE DRAFT ORDER BEFORE THE DISPUTE RESOLUTION PANEL (DRP). THE DRP VIDE DIRECTIONS DATED 29.11.2016 CONFIRMED THE ADDITIONS MADE BY THE TPO WITH FOLLOWING MODIFICATIONS: I) DISALLOWED THE BENEFIT OF SALES RELATED EXPENDITURE WHILE COMPUTING 10 ITA NO. 8752 & 8753/DEL/2019 COST PLUS ADJUSTMENT; II) DIRECTED TPO TO COMPUTE ADJUSTMENT USING INTENSITY APPROACH; AND III) DIRECTED THE TPO TO USE A MARK-UP OF 17.32% INSTEAD OF 20.18% AS PROPOSED BY THE TPO, FOR THE PURPOSE OF COMPUTING A MP INTENSITY ADJUSTMENT. THE TPO WITHOUT FOLLOWING THE DIRECTIONS OF THE DRP , CONFIRMED THE ADDITION MADE IN THE TRANSFER PRICING ORDER DATED 28.01.2016 . THEREAFTER, THE ASSESSING OFFICER PASSED THE FINAL ASSESSMENT ORDER DATED 17. 01.2017 CONFIRMING THE ADDITIONS MADE BY THE TPO AND ASSESSED THE INCOME O F THE ASSESSEE AT RS. 57,32,67,720/- AS AGAINST THE RETURNED INCOME OF RS . 5,42,98,030/-, THEREBY MAKING A TP ADJUSTMENT OF RS. 51,89,69,687/-. 4. AGGRIEVED BY THE ORDER OF THE ASSESSING OFFICER, THE ASSESSEE FILED AN APPEAL BEFORE THE TRIBUNAL. THE TRIBUNAL VIDE ORDER DATED 31.03.2017 REMANDED THE MATTER BACK TO THE FILES OF THE TPO WI TH FOLLOWING DIRECTIONS: THE TRIBUNAL RESTORED THE LEGAL QUESTION ON DETERM INATION WHETHER ALLEGED EXCESSIVE AMP EXPENDITURE INCURRED IS AN IN TERNATIONAL TRANSACTIONS OR NOT IN LIGHT OF THE RATIO OF JUDGM ENTS OF THE HONBLE DELHI HIGH COURT IN VARIOUS CASES; IN CASE THE INTERNATIONAL TRANSACTION IS PROVED TO BE IN EXISTENCE, THE TRIBUNAL DIRECTED THE TPO TO DETERMINE THE ALP OF S UCH INTERNATIONAL TRANSACTION FOLLOWING THE JUDGMENTS OF JURISDICTION AL HIGH COURT; THE TRIBUNAL FURTHER DIRECTED THE ASSESSING OFFICER TO FOLLOW DIRECTIONS OF THE DRP REGARDING AMP INTENSITY ADJUSTMENT. ALSO, T HE TRIBUNAL IN PARA 20 OF THE ORDER CATEGORICALLY DIRECTED THE TPO TO B ENCHMARK THE 11 ITA NO. 8752 & 8753/DEL/2019 EXCESSIVE AMP EXPENDITURE ON AN AGGREGATE BASIS. PURSUANT TO THE DIRECTIONS OF THE TRIBUNAL, THE TPO VIDE ORDER DATED 31.10.2018, REITERATED AND HELD THAT THE ASSESSEE W AS INCURRING EXCESSIVE AMP EXPENDITURE FOR DEVELOPMENT OF THE BRAND OWNED BY I TS FOREIGN AE. THUS, SUCH EXCESSIVE AMP EXPENDITURE WOULD AMOUNT TO BE AN INT ERNATIONAL TRANSACTION. THE TPO AGAIN DETERMINED ADJUSTMENT RELATING TO EXC ESSIVE AMP EXPENDITURE ON SUBSTANTIVE AS WELL AS PROTECTIVE BASIS AS WAS D ONE IN THE FIRST ROUND AS UNDER: BASIS METHOD FOR BENCHMARKING ADJUSTMENT U/S 92CA O F THE ACT (IN INR) SUBSTANTIVE COST PLUS METHOD 51,89,69,687 PROTECTIVE BLT 1,21,37,90,558 THE ASSESSING OFFICER IN THE SECOND ROUND WITHOUT P ASSING A DRAFT ASSESSMENT ORDER, PASSED AN ASSESSMENT ORDER DATED 18.12.2018 THEREBY ONLY TITLING THE SAME AS DRAFT ASSESSMENT ORDER UNDER SECTION 143(3) READ WITH SECTION 144C OF THE ACT, MAKING THE ADDITION OF RS. 51,89,69,687 /- (SUBSTANTIVE BASIS) TO THE INCOME OF THE ASSESSEE ON ACCOUNT OF TP ADJUSTMENT MADE BY THE TPO. THE SAID ORDER WAS ACCOMPANIED BY THE DEMAND NOTICE DAT ED 18.12.2018 UNDER SECTION 156 OF THE INCOME TAX ACT, 1961 ALONG WITH NOTICE UNDER SECTION 274 READ WITH SECTION 271 OF THE INCOME TAX ACT, 1961. 5. THE ASSESSEE FILED OBJECTIONS AGAINST THE SAID O RDER BEFORE THE DRP VIDE APPLICATION DATED 18.01.2019. THE DRP VIDE ORDER DA TED 20.09.2019 DIRECTED THE AO/TPO AS UNDER: 12 ITA NO. 8752 & 8753/DEL/2019 AS REGARDS TP ADJUSTMENT ON PROTECTIVE BASIS USING BLT, THE DRP UPHELD THE TP ADJUSTMENT. THE DRP, HOWEVER, DIRECTE D THE TPO TO LIST OUT THE COMPARABLES BASED ON WHICH THE TPO ARRIVED AT AMP/SALES RATIO IN THE ORDER. FURTHER, DIRECTED TO CONSIDER T HE COMPARABLES AND THE OPERATING MARGIN OF 17.32% AS DIRECTED BY THE D RP IN ORDER DATED 29.11.2016. TO COMPUTE THE AMP ADJUSTMENT ON SUBSTANTIVE BASIS IN ACCORDANCE WITH THE DIRECTIONS OF THE TRIBUNAL, I.E., USING AG GREGATED APPROACH FOLLOWING THE AMP INTENSITY METHOD. THE TPO PASSED AN ORDER DATED 04.10.2019, GIVING EF FECT TO THE DIRECTIONS OF THE DRP UNDER SECTION 144C(5) OF THE ACT AS UNDER: AS REGARDS ADJUSTMENT ON PROTECTIVE BASIS USING BLT , THE TPO CONSIDERED A MARK-UP OF 17.32% AS AGAINST 20.18% AS DIRECTED BY DRP, THEREBY REDUCED THE ADJUSTMENT FROM RS. 121,37 ,90,558/- TO RS. 118,49,05,211/-, WITHOUT ALLOWING DEDUCTION OF SALES RELATED EXPENSES. FURTHER, ADJUSTMENT ON SUBSTANTIVE BASIS USING INTE NSITY APPROACH WAS MADE BY TPO AT RS. 1,59,39,195/-. PURSUANT TO THE ABOVE, THE ASSESSING OFFICER PASSED THE FINAL ASSESSMENT ORDER DATED 18.10.2019, WHEREIN, THE ASSESSING OFFICER DI D NOT MAKE ANY ADDITION ON SUBSTANTIVE BASIS, BUT STRAIGHT AWAY MADE AN ADDITI ON ON PROTECTIVE BASIS. THE ASSESSING OFFICER ASSESSED THE INCOME AS UNDER:- PARTICULARS AMOUNT (IN INR) 13 ITA NO. 8752 & 8753/DEL/2019 RETURNED INCOME 5,42,98,030 ADDITIONS: TP ADJUSTMENT ON ACCOUNT OF AMP EXPENDITURE (ON PROTECTIVE BASIS) 1,18,49,05,211 ASSESSED INCOME 1,23,92,03,241 ROUNDED OFF 1,23,92,03,240 6. BEING AGGRIEVED BY THE ASSESSMENT ORDER, THE ASS ESSEE FILED THE PRESENT APPEAL. 7. AS REGARDS TO GROUND NO. 1, THE LD. AR SUBMITTED THAT THE SAME IS GENERAL IN NATURE. AS REGARDS TO GROUND NOS. 2 AND 2.1, THE LD. AR SUBMITTED THAT THE ASSESSMENT ORDER PASSED BY THE ASSESSING O FFICER IN REMAND PROCEEDINGS IS BAD IN LAW AND LIABLE TO BE QUASHED. THE LD. AR SUBMITTED THAT THE ASSESSMENT ORDER DATED 18.12.2018 WAS PASSED BY THE ASSESSING OFFICER ALONG WITH NOTICES UNDER SECTION 156 AND 274 READ W ITH SECTION 271(1)(C) OF THE ACT. THE ASSESSMENT ORDER, THUS WAS PASSED IN V IOLATION OF SECTION 144C OF THE ACT IN AS MUCH AS THE AO HAS PASSED THE FINAL A SSESSMENT ORDER INSTEAD OF A DRAFT ASSESSMENT ORDER. THIS IS AGAINST THE SCHEM E ENVISAGED IN THE SAID SECTION 144C OF THE ACT AND IS, THEREFORE, BAD IN L AW AND VOID-AB-INITIO. THE LD. AR RELIED UPON THE HONBLE MADRAS HIGH COURT DE CISION IN CASE OF VIJAY TELEVISION (2014) 369 ITR 113 (MADRAS) WHEREIN IT I S HELD THAT NON-PASSING OF DRAFT ASSESSMENT ORDER AFTER ADJUSTMENT MADE BY THE TPO RENDERS PROCEEDINGS NULL AND VOID. THIS HAS BEEN FOLLOWED BY VARIOUS CO ORDINATE BENCHES OF THE TRIBUNAL INCLUDING THE DELHI BENCH IN THE CASE OF A CIT VS. ORACLE INDIA PVT. LTD ITA NO. 6288/ DEL / 2013, WHICH HAS CLEARLY HELD THAT PASSING OF DRAFT ASSESSMENT ORDER IS COMPULSORY AND ISSUING OF DEMAN D AND PENALTY NOTICE 14 ITA NO. 8752 & 8753/DEL/2019 ALONG WITH THE DRAFT ORDER MAKES IT A FINAL ASSESSM ENT ORDER, IN CONTRAVENTION OF THE PROVISIONS OF SECTION 144C OF THE ACT. THE B ENCHES OF THE TRIBUNAL & THE HONBLE MADRAS HIGH COURT, IN ALL THE AFORESAID DEC ISIONS HAS HELD THAT THE ASSESSING OFFICER IN ISSUING DEMAND AND PENALTY NOT ICES ALONG WITH THE ASSESSMENT ORDER, EVEN THOUGH IT WAS FRAMED AS THE DRAFT ASSESSMENT ORDER, IN EFFECT, HAS PASSED THE FINAL ASSESSMENT ORDER. IT H AS BEEN FURTHER OBSERVED THAT NOT ONLY THE INCOME WAS ASSESSED BUT THE DEMAND PAY ABLE WAS ALSO DETERMINED, WHICH WAS AGAINST THE SCHEME ENVISAGED BY SECTION 144C OF THE ACT AND THEREFORE, BAD IN LAW AND VOID-AB-INITIO. I N FACT, THE HONBLE HIGH COURTS HAVE ALSO HELD THAT EVEN IN REMAND PROCEEDIN G A DRAFT ASSESSMENT ORDER HAS TO BE FIRST PASSED BEFORE PASSING THE FIN AL ASSESSMENT ORDER IN LIGHT WITH THE PROVISIONS UNDER SECTION 144C(1) OF THE AC T. THE LD. AR ALSO POINTED OUT THE DECISION IN THE CASE OF JCB INDIA LTD VS. D CIT [2017] 398 ITR 189 (DELHI) AND ALSO RELIED UPON THE DECISION OF THE HO NBLE BOMBAY HIGH COURT IN THE CASE OF PR. CIT VS. LIONBRIDGE TECHNOLOGIES P. LTD.: [2019] 260 TAXMAN 273 (BOMBAY) THE LD. AR RELIED UPON THE FOLLOWING DECIS IONS WHEREIN PASSING OF THE DRAFT ASSESSMENT ORDER IN THE SECOND ROUND OF P ROCEEDINGS HAS BEEN HELD TO BE MANDATORY AND IF THE SAME HAS NOT BEEN DONE, THE ASSESSMENT FRAMED IS LIABLE TO BE QUASHED: NOKIA INDIA (P.) LTD. VS ADIT: WP(C) NO. 3629 OF 20 17 (DELHI), AND AFFIRMED BY HONBLE SUPREME COURT (SC) IN ACIT VS NOKIA INDIA (P) LTD. [2018] 259 TAXMAN 91 (SC) ZUARI CEMENT LTD. V. ACIT: WP(C) NO.5557/2012 (AP), DATED 21-2-2013 AND AFFIRMED BY THE HONBLE SC IN NO. 16694/2013, V IDE ORDER DATED 27TH SEPTEMBER 27, 2013 INTERNATIONAL AIR TRANSPORT ASSOCIATION VS DCIT: [2 016] 290 CTR 46 (BOMBAY) 15 ITA NO. 8752 & 8753/DEL/2019 PCIT VS ANDREW TELECOMMUNICATIONS (P.) LTD: ITA NO. 144 OF 2017 (BOMBAY) TURNER INTERNATIONAL INDIA (P.) LTD. V. DY. CIT [2 017] 398 ITR 177 (DELHI) CIT V. C-SAM (INDIA) (P.) LTD: [2017] 398 ITR 182 ( GUJARAT) ACIT VS VIJAY TELEVISION (P) LTD.: [2018] 407 ITR 6 42 (MADRAS) IN VIEW OF THE ABOVE, THE LD. AR SUBMITS THAT THE O RDER DATED 18.12.2018, PASSED BY THE ASSESSING OFFICER IGNORING THE STATUT ORY PROVISIONS OF SECTION 144C OF THE ACT, DESERVES TO BE QUASHED. 8. THE LD. DR RELIED UPON THE ASSESSMENT ORDER AND SUBMITTED THAT THE ORDER PASSED BY THE ASSESSING OFFICER IS JUST AND V ALID AS PER SECTION 144C OF THE INCOME TAX ACT, 1961. 9. WE HAVE HEARD BOTH THE PARTIES AND PERUSED ALL T HE RELEVANT MATERIAL AVAILABLE ON RECORD. AS REGARDS TO GROUND NO. 1, TH E SAME IS GENERAL IN NATURE HENCE DOES NOT REQUIRE ANY ADJUDICATION. AS REGARDS TO GROUND NOS. 2 AND 2.1, IT IS PERTINENT TO NOTE THAT THE TRIBUNAL VIDE ORDE R DATED 31.03.2017 REMANDED THE MATTER BACK TO THE TPO/AO FOR FRESH DETERMINATI ON. THUS, AS PER SECTION 144C OF THE ACT, IT IS MANDATORY FOR THE ASSESSING OFFICER TO PASS DRAFT ASSESSMENT ORDER. BUT INSTEAD OF THAT, THE ASSESSIN G OFFICER VIDE ORDER DATED 18.10.2019 MERELY CAPTIONED THE FINAL ASSESSMENT OR DER AS DRAFT ASSESSMENT ORDER ALONG WITH ISSUANCE OF NOTICES UNDER SECTION 156 AND 274 READ WITH SECTION 271(1)(C) OF THE ACT WHICH MEANS A FINAL AS SESSMENT ORDER U/S 144C WAS PASSED WITHOUT FOLLOWING THE MANDATORY PROVISIO NS OF SECTION 144C OF THE ACT. THE LD. AR HAS RIGHTLY RELIED UPON THE DECISIO NS OF THE HONBLE DELHI HIGH COURT IN CASES OF CONTROL RISKS INDIA (P) LTD. (SUP RA) AND NOKIA INDIA PVT. LTD. (SUPRA) WHEREIN THE SLP HAVE BEEN DISMISSED BY THE HONBLE SUPREME COURT AND CONFIRMING THE HONBLE HIGH COURTS VIEW. THE L D. AR ALSO RELIED UPON THE 16 ITA NO. 8752 & 8753/DEL/2019 HONBLE DELHI HIGH COURT DECISIONS IN CASES OF TURN ER INTERNATIONAL INDIA (SUPRA) AND JCB INDIA LTD. (SUPRA). ALL THESE DECIS IONS HIGHLIGHTED THAT FINAL ASSESSMENT ORDER PASSED IN REMAND PROCEEDINGS WITHO UT PASSING A DRAFT ASSESSMENT ORDER IS IN VIOLATION OF SECTION 144C OF THE ACT AND IS THEREFORE NULL AND VOID. THE LD. DR COULD NOT BRING ANY CASE LAW O N CONTRARY TO THESE DECISIONS. IN FACT, THE STATUTE ITSELF GIVES A MAND ATORY DIRECTION TO THE ASSESSING OFFICER UNDER SECTION 144C THAT IN THE FIRST INSTAN CE THE ASSESSING OFFICER SHOULD FORWARD THE DRAFT OF THE PROPOSED ORDER OF A SSESSMENT. WHEN THE TRIBUNAL REMANDED BACK THE MATTER FOR FRESH DETERMI NATION, IT HAS SET ASIDE THE EARLIER ASSESSMENT AND HENCE THE ASSESSING OFFICER HAS TO CONDUCT A FRESH ASSESSMENT AS PER THE MANDATE OF SECTION 144C. THUS , THE ASSESSMENT ORDER ITSELF IS BAD IN LAW AND VOID AB INITIO, HENCE QUAS HED. THEREFORE GROUND NO. 2 AND 2.1 OF THE ASSESSEES APPEAL ARE ALLOWED. AS RE GARDS TO GROUND NO. 3 TO 15, THE SAME ARE ON MERITS. SINCE THE ASSESSMENT ORDER ITSELF BECOMES NULL AND VOID, THE OTHER ISSUES DOES NOT SURVIVE. HENCE, APP EAL BEING ITA NO. 8752/DEL/2019 FILED BY THE ASSESSEE IS ALLOWED. 10. AS REGARDS TO APPEAL BEING ITA NO. 8753/DEL/201 9 FILED BY THE ASSESSEE FOR A.Y. 2015-16, THE ISSUES ARE IDENTICAL, HENCE G ROUND NOS. 2 AND 2.1 THEREIN ARE ALLOWED. HENCE, APPEAL BEING ITA NO. 8753/DEL/2 019 FILED BY THE ASSESSEE IS ALLOWED. 10. IN RESULT, BOTH THE APPEALS OF THE ASSESSEE AR E ALLOWED. ORDER PRONOUNCED ON THIS 27 TH DAY OF MAY, 2020. SD/- SD/- (PRASHANT MAHARISHI) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIA L MEMBER DATED: 27/05/2020 R. NAHEED 17 ITA NO. 8752 & 8753/DEL/2019 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI DATE OF DICTATION 03.03.2020 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 03.03.2020 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 2 9 . 0 5 . 2 0 2 0 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER