Bekaert Industries Private Ltd., Pune V. Deputy Commissioner of Income-tax, Pune

ITA 976/PUN/2016

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 2351 (ITAT-PUNE)
• Duration Of Justice: 3 year(s) 6 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-12-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 05-12-2019
• Assessment Year: 2011-2012
• Appeal Filed On: 12-05-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ASSESS MENT YEAR; ONE APPEAL
• Keywords: Depreciation; Transfer pricing; International transaction; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH C, PUNE BEFORE SHRI R.S. SYAL, VICE PRESIDENT AND SHRI PARTHA SARATHI CHAUDHURY, JUDICIAL MEMBER . / ITA NO.571/PUN/2015 / ASSESSMENT YEAR : 2010-11 BEKAERT INDUSTRIES PRIVATE LIMITED, PLOT NO.127, SR.NO.232/1+2, FRIENDS CO-OPERATIVE HSG. SOC., NEW AIRPORT ROAD, BEHIND IDBI, SAKORE NAGAR, VIMANNAGAR, PUNE 411 014 PAN : AAACB8571E VS. DCIT, CIRCLE-1(1), PUNE APPELLANT RESPONDENT . / ITA NO.541/PUN/2015 / ASSESSMENT YEAR : 2010-11 DCIT, CIRCLE-1(1), PUNE VS. BEKAERT INDUSTRIES PRIVATE LIMITED, PLOT NO.B-1, MIDC, RANJANGAON, TAL SHIRUR, DIST. PUNE 419210 PAN : AAACB8571E APPELLANT RESPONDENT . / ITA NO.976/PUN/2016 / ASSESSMENT YEAR : 2011-12 BEKAERT INDUSTRIES PRIVATE LIMITED, PLOT NO.127, SR.NO.232/1+2, FRIENDS CO-OPERATIVE HSG. SOC., NEW AIRPORT ROAD, BEHIND IDBI, SAKORE NAGAR, VIMANNAGAR, PUNE 411 014 PAN : AAACB8571E VS. DCIT, CIRCLE-1(1), PUNE APPELLANT RESPONDENT ITA NOS.571, 541/PUN/2015 & ITA NO.976/PUN/2016 BEKAERT INDUSTRIES PRIVATE LIMITED 2 / ORDER PER R.S.SYAL, VP : THIS BATCH OF THREE APPEALS INVOLVES TWO CROSS APPEALS FOR THE ASSESSMENT YEAR 2010-11 AND ONE APPEAL BY THE ASSESSE E FOR THE ASSESSMENT YEAR 2011-12. SINCE SOME COMMON ISSUES ARE R AISED IN THESE APPEALS, WE ARE, THEREFORE, PROCEEDING TO DISPOSE TH EM OFF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. A.Y. 2010-11 : 2. FIRSTLY, WE TAKE UP THE CROSS APPEALS DIRECTED AGAIN ST THE FINAL ASSESSMENT ORDER DATED 27-02-2015 PASSED BY THE ASSESS ING OFFICER (AO) U/S.143(3) R.W.S.144C(13) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER CALLED THE ACT) IN RELATION TO THE ASSESSMENT YE AR 2010-11. 3. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT THE ASSESS EE FILED ITS RETURN DECLARING LOSS OF RS.1,18,56,169/-. CERTAIN INTER NATIONAL TRANSACTIONS WERE REPORTED IN FORM NO.3CEB. THE ASSESSING ASSESSEE BY SHRI ALIASGER RAMPURWALA & SHRI PRATIK SHAH REVENUE BY SHRI T. VIJAYA BHASKAR REDDY DATE OF HEARING 05-12-2019 DATE OF PRONOUNCEMENT 06-12-2019 ITA NOS.571, 541/PUN/2015 & ITA NO.976/PUN/2016 BEKAERT INDUSTRIES PRIVATE LIMITED 3 OFFICER (AO) MADE A REFERENCE TO THE TRANSFER PRICING OFF ICER (TPO) FOR DETERMINING THE ARMS LENGTH PRICE (ALP) OF THE INTERNATIONAL TRANSACTIONS. THE TPO, IN THE INTERNATIONAL TRANSACTION OF IMPORT OF RAW MATERIALS, DID NOT ACCEPT THE ASSESSEES C ONTENTION OF ADOPTING FOREIGN/ASSOCIATED ENTERPRISE AS A TESTED PARTY. HE, THEREFORE, SELECTED THE ASSESSEE ITSELF AS TESTED PARTY TO FIND OUT CERTAIN COMPARABLES ON THE BASIS OF WHICH A TRANSFER PRICING ADJUSTMENT WAS RECOMMENDED. THE ASSESSEE REMAINED UNS UCCESSFUL BEFORE THE DISPUTE RESOLUTION PANEL (DRP) EXCEPT THE DIRECTION TO RESTRICT THE AMOUNT OF TRANSFER PRICING ADJUSTMENT ONLY TO THE INTERNATIONAL TRANSACTIONS. THE AO, PURSUANT TO THE ORDER OF THE TPO AND THE DIRECTION OF THE DISPUTE RESOLUTION PANEL (DRP), MADE THE TRANSFER PRICING ADDITION OF RS.7,39,20,120/- IN THE INTERNATIONAL TRANSACTION OF IMPORT OF RAW MATERIALS. THE ASS ESSEE IS AGGRIEVED BY THE ADDITION TO THIS EXTENT. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND GONE THROUGH TH E RELEVANT MATERIAL ON RECORD. THE LD. AR HAS PLACED ON RE CORD INTERNATIONAL TRANSACTION WISE CHART SHOWING THE ISSUES WITH HIS COMMENTS. THE FIRST ISSUE ABOUT TAKING THE FOREIGN/ASSOCIATED ENTERPRISE AS A TESTED PARTY WAS ADMITTED TO HAVE BEEN DECIDE D BY ITA NOS.571, 541/PUN/2015 & ITA NO.976/PUN/2016 BEKAERT INDUSTRIES PRIVATE LIMITED 4 THE TRIBUNAL AGAINST THE ASSESSEE IN ITS ORDER FOR THE IMMEDI ATELY PRECEDING ASSESSMENT YEAR, NAMELY, 2009-10. A COPY OF SUCH ORDER IN ITA NO.146/PUN/2014 DATED 24-04-2019 HAS BEEN PLACED O N RECORD AS PER WHICH SUCH CONTENTION OF THE ASSESSEE FOR ADOPTING FOREIGN/ ASSOCIATED ENTERPRISE AS A TESTED PARTY HAS BEEN JETTIS ONED. THE LD. AR WAS FAIR ENOUGH TO CONCEDE THE POSITION IN THIS R EGARD AND ADMITTED THAT THE FACTS AND CIRCUMSTANCES ARE SIMILAR. T HIS ISSUE IS, THEREFORE, DECIDED AGAINST THE ASSESSEE. 5. THE SECOND ISSUE ABOUT THE ADJUSTMENT NOT EXCEEDING THE INCOME EARNED BY THE ASSOCIATED ENTERPRISES FROM SUPPLY OF RAW MATERIALS WAS NOT PRESSED, WHICH IS DISMISSED AS NOT PRESSED . 6. THE THIRD ISSUE ABOUT THE EXCLUSION OF COMPARABLES SELECTE D BY THE TPO WAS ALSO NOT PRESSED, WHICH IS AGAIN DISMISSED AS NOT PRESSED. 7. ANOTHER ISSUE WHICH SURVIVES FOR CONSIDERATION IS THE CHALLENGE TO THE ADJUSTMENT ON ACCOUNT OF DEPRECIATION TOWARDS DIFFERENCE IN RATES. THE LD. AR SUBMITTED THAT SIMILAR ISSUE ALSO CAME UP BEFORE THE TRIBUNAL IN ITS ORDER FOR THE ASSESSM ENT YEAR 2009-10. BY INVITING OUR ATTENTION TOWARDS PAGE 23 PARA 2 0 OF THE ORDER, THE LD. AR SUBMITTED THAT THE TRIBUNAL HAS RESTORED THE MATTER ITA NOS.571, 541/PUN/2015 & ITA NO.976/PUN/2016 BEKAERT INDUSTRIES PRIVATE LIMITED 5 TO THE FILE OF AO/TPO FOR ALLOWING ADJUSTMENT TO THE OPERATING MARGIN OF COMPARABLE COMPANIES IF THERE IS SOME DIFFERENCE IN THE RATES OF DEPRECIATION CHARGED BY THE ASSESSEE VIS--VIS THE COMPARABLE COMPANIES. IN VIEW OF THE REASON THAT THE FACTS AND CIRCUMSTANCES ON THIS ISSUE ARE SIMILAR, WE SET-ASIDE THE I MPUGNED ORDER AND REMIT THE MATTER TO THE FILE OF AO/TPO FOR DECIDING IT IN CONFORMITY WITH THE DIRECTIONS GIVEN BY THE TRIBUNAL IN ITS ORDER FOR THE PRECEDING YEAR AS REFERRED TO IN PARA 20 OF ITS ORDER . 8. THE ASSESSEE HAS RAISED AN ADDITIONAL GROUND URGING TH AT THE TRANSFER PRICING ADDITION SHOULD BE RESTRICTED ONLY TO THE VALUE OF INTERNATIONAL TRANSACTIONS AND NOT ALL THE TRANSACTIONS. THIS BEING A LEGAL ISSUE DOES NOT REQUIRE ANY SEPARATE EXAMINATION OF FA CTS. WE, THEREFORE, ADMIT THIS ADDITIONAL GROUND IN THE HUE OF THE JUDG MENT OF HONBLE SUPREME COURT IN NATIONAL THERMAL POWER COMPANY LTD. VS. CIT (1998) 229 ITR 383 (SC). 9. ON MERITS, IT IS SEEN THAT THE DRP DIRECTED THE AO/TPO TO RESTRICT THE TRANSFER PRICING ADJUSTMENT ONLY WITH REFERENCE TO THE INTERNATIONAL TRANSACTION BUT THE TPO FAILED TO GIVE EFFECT TO THE DRPS DIRECTION IN PROPER PERSPECTIVE WHILE CALCULATING TRANSFE R PRICING ADDITION IN THE FINAL ASSESSMENT ORDER. THE TRIBUNAL IN ITS ITA NOS.571, 541/PUN/2015 & ITA NO.976/PUN/2016 BEKAERT INDUSTRIES PRIVATE LIMITED 6 ORDER FOR THE ASSESSMENT YEAR 2009-10 HAS ALSO EXAMINED THIS ISSUE ON PAGE 23 PARA 23. FOLLOWING THE JUDGMENT OF HON'BLE BOMB AY HIGH COURT IN CIT VS. THYSSEN KRUPP INDUSTRIES INDIA PRIVATE LTD. (2016) 381 ITR 413 (BOM), THE TRIBUNAL HAS DIRECTED THAT THE TRANSFER PRICING ADDITION SHOULD BE RESTRICTED TO THE TRANSACTIONS WITH AES AND NOT THE UNRELATED OR NON-AES. FOLLOWING THE SAME VIE W, WE ALLOW THIS ADDITIONAL GROUND OF APPEAL AND DIRECT THE AO/TP O TO RESTRICT THE TRANSFER PRICING ADDITION ONLY QUA THE INTERNATIONAL TRANSACTIONS AND NOT THE ENTITY LEVEL TRANSACTIONS. 10. THE TRANSFER PRICING ADDITION MADE IN THE FINAL ASSESSME NT ORDER PERTAINING TO RECEIPT OF SALES COMMISSION AMOUNTING TO RS.67,08,036/- WAS NOT PRESSED BY THE LD. AR. THE SAM E IS HEREBY DISMISSED. 11. NOW WE TURN TO THE LAST TRANSFER PRICING ADDITION AMOUNTIN G TO RS.77,76,390/- MADE BY THE AO IN THE INTERNATIONAL TRANSACTION OF PROVISION OF DESIGN ENGINEERING SERVICES. 12. THE TPO MADE CERTAIN INCLUSIONS/EXCLUSIONS IN/FROM THE LIST OF COMPARABLES AND PROPOSED THE TRANSFER PRICING ADJUSTMENT O F RS.99,48,945/-. AFTER GIVING EFFECT TO THE DIRECTION GIVEN B Y THE ITA NOS.571, 541/PUN/2015 & ITA NO.976/PUN/2016 BEKAERT INDUSTRIES PRIVATE LIMITED 7 DRP, THE AO MADE TRANSFER PRICING ADDITION OF RS.77,76,390 /-, AGAINST WHICH THE ASSESSEE HAS COME UP IN APPEAL BEFORE TH E TRIBUNAL. 13. THE FIRST ISSUE RAISED BY THE LD. AR IS THAT THE SUO MOTO TRANSFER PRICING ADJUSTMENT OFFERED BY THE ASSESSEE AT RS. 38.00 LAKH WAS IGNORED BY THE AO/TPO, WHO ENHANCED THE INCOME WITH THE AMOUNT OF TRANSFER PRICING ADDITION COMPUTED WITHOUT GIVING EFF ECT TO SUCH AMOUNT OFFERED BY THE ASSESSEE. 14. THE ASSESSEE ITSELF SUO MOTO OFFERED TRANSFER PRICING ADDITION OF RS.38.00 LAKH IN THIS INTERNATIONAL TRANSACTION AND OFFERED THE SAME IN THE COMPUTATION OF TOTAL INCOME UNDER POINT NO.20.7. THE CLAIM OF THE ASSESSEE BEFORE THE TRIBUNAL IS THAT THE AUTHOR ITIES HAVE GONE AHEAD WITH THE TRANSFER PRICING ADDITION AS COMPUTED BY THEM WITHOUT GIVING EFFECT TO THE AMOUNT OF INCOME VOLUNTARILY OFFERE D BY THE ASSESSEE. THE AO/TPO IS DIRECTED TO VERIFY THE ASSESSEE S CONTENTION. IN CASE THE ASSESSEE OFFERED THE TRANSFER PR ICING ADDITION OF RS.38.00 LAKH WHICH INADVERTENTLY WENT UNNOTICED, THEN RE LIEF TO THIS EXTENT SHOULD BE ALLOWED. NEEDLESS TO SAY, THE ASSESSE E SHALL BE ALLOWED A REASONABLE OPPORTUNITY OF HEARING. ITA NOS.571, 541/PUN/2015 & ITA NO.976/PUN/2016 BEKAERT INDUSTRIES PRIVATE LIMITED 8 15. THE ISSUE OF CONDUCTING SELECTIVE FRESH ANALYSIS WHILE ADOPTING CERTAIN ADDITIONAL QUANTITATIVE/QUALITATIVE FILTERS WAS NOT PRESSED BY THE LD. AR, WHICH IS HEREBY DISMISSED. 16. THE ISSUE OF DISREGARDING THE FRESH SEARCH PROVIDED BY THE ASSESSEE WAS ALSO NOT PRESSED BY THE LD. AR, WHICH IS HER EBY DISMISSED. 17. THE ISSUES OF NON-GRANTING OF RISK ADJUSTMENT AND CON SIDERING MULTIPLE YEAR DATA WERE ALSO NOT PRESSED BY THE LD. AR, WHIC H ARE AGAIN DISMISSED. 18. THE ONLY ISSUE WHICH SURVIVES FOR CONSIDERATION IN THIS INTERNATIONAL TRANSACTION IS CHALLENGE TO THE INCLUSION OF CORAL HU B LTD. (EARLIER KNOWN AS VISHAL INFORMATION TECHNOLOGIES LTD.). 19. BEFORE ANALYZING AS TO WHETHER CORAL HUB LTD. IS COM PARABLE OR NOT, IT IS RELEVANT TO CONSIDER THE NATURE OF ACTIVITY DONE BY THE ASSESSEE IN THIS INTERNATIONAL TRANSACTION. THE AUTHORITIES BELOW HAVE REFERRED TO THE TRANSFER PRICING STUDY REPORT FOR AN ALYZING THE NATURE OF FUNCTIONS, WHICH IS NOT DISPUTED. WE HAVE ALSO G ONE THROUGH THE RELEVANT PARTS OF THE T.P. STUDY REPORT CONCE RNING THIS ITA NOS.571, 541/PUN/2015 & ITA NO.976/PUN/2016 BEKAERT INDUSTRIES PRIVATE LIMITED 9 INTERNATIONAL TRANSACTION. THE RELEVANT NARRATION OF FUNCTIONAL PR OFILE HAS BEEN MADE IN PARA 6.3 OF THE TP STUDY REPORT AS PER WHICH THE ASSESSEE IS ENGAGED IN THE PROVISION OF PROGRAMME LOGIC CO NTROLLER (PLC) AUTOMATION SERVICES AND FIELD SERVICE ENGINEERING THROUGH ITS DESIGN ENGINEERING CENTER IN PUNE. UNDER THE HEADING `FUNCTIONS PERFORMED, IT HAS BEEN MENTIONED THAT THE BASIC DESIGN/LAYOUTS OF THE MACHINES AND ITS COMPONENTS ARE CONCEPTUALIZED BY TECHNICAL PERSONNEL BASED IN THE PROJECT AN D DESIGN OFFICES OF THE AE ON THE BASIS OF THE PROPOSED PLAN S OF VARIOUS ASSEMBLIES AND SUB-ASSEMBLIES OF THE PRODUCT BEING DEVELOPED. THE DESIGN ENGINEERING FUNCTION IS UNDERTAKEN BY THE ASSESSEE ONCE THE PROJECT MANAGERS OF THE AE FINALIZE THE P LANS AND SCOPE OF WORK FOR THE EXECUTION OF THE PROJECT. ONCE THE PROJECT PLAN IS FINALIZED, THE PROJECT MANAGER OF THE RELEVANT PROJECT OUTSOURCES/ALLOCATES PART OF THE DESIGN DEVELOPMENT WORK TO THE VARIOUS OFFSHORE CENTERS INCLUDING THE ASSESSEE. THE WOR K IS OUTSOURCED TO INDIA BY CODING THE DETAILED INSTRUCTIONS SUMMAR Y AS A PARTICULAR TASK. THE SPECIFIED JOB IS FOLLOWED UP, TRACED AND CONSOLIDATED WITH THE HELP OF TASK NUMBER. THE DETAILED INSTRU CTION SUMMARY SHEET CONTAINS THE SPECIFICATIONS LIKE THE TECHNOLOGIES F OR THE NEW DESIGN TO BE DEVELOPED FOR THE SPECIFIED COMPONEN T, ITA NOS.571, 541/PUN/2015 & ITA NO.976/PUN/2016 BEKAERT INDUSTRIES PRIVATE LIMITED 10 PROCEDURE FOR THE CUSTOMERS OF THE EXISTING DESIGN OF THE COMPONENT, PROCEDURE FOR ANALYZING THE PROPOSED DESIGN ETC. THE WORK CARRIED ON IN INDIA PRIMARILY RELATES TO DRAFTING/MODELING OF DESIGNS. THEREAFTER, THE PROCESSING OF THE JOB IS DONE. 20. THE TPO PROPOSED THE INCLUSION OF CORAL HUB LTD. ( VISHAL INFORMATION TECHNOLOGIES LTD.) WHICH WAS OBJECTED TO BY THE ASSESSEE ON THE GROUND THAT IT WAS FUNCTIONALLY DIFFERENT WITH THE DIFFERENT BUSINESS MODEL AND DIFFERENT FINANCIAL YEAR. THE TPO REJECTED THE ASSESSEES CONTENTION FOR ITS INCLUSION IN THE LIST OF COMPARABLES, WHICH WAS ECHOED BY THE DRP. 21. HAVING HEARD BOTH THE SIDES AND PERUSED THE RELEVANT M ATERIAL ON RECORD, IT IS FOUND AS A PRELIMINARY POINT THAT CORAL HUB LTD. WAS FOLLOWING JUNE AS THE YEAR ENDING AS AGAINST THE ASSESSEE F OLLOWING FINANCIAL YEAR, NAMELY, YEAR ENDING ON 31 ST MARCH. THUS, THERE IS BASIC DIFFERENCE IN THE YEAR ENDING PERIODS OF THE ASSESSE E AND THE COMPANY. THE HONBLE BOMBAY HIGH COURT IN CIT VS. PTC SOFTWARE (2017) 395 ITR 176 (BOM.) HAS HELD THAT THE COMPANIES WITH DIFFERENT FINANCIAL YEAR ENDINGS CANNOT BE CONSIDERED A S COMPARABLE UNDER RULE 10B(4). IN ADDITION, THERE ARE CE RTAIN OTHER FUNCTIONAL DIFFERENCES ALSO BETWEEN THE ASSESSEE AND CORA L HUB LTD. ITA NOS.571, 541/PUN/2015 & ITA NO.976/PUN/2016 BEKAERT INDUSTRIES PRIVATE LIMITED 11 WITHOUT DELINEATING ON THE SAME, WE ORDER TO EXCLUDE THIS COMPA NY ON THE FIRST ISSUE ITSELF, NAMELY, HAVING DIFFERENT YEAR ENDIN G VIS-- VIS THE ASSESSEE. THIS COMPANY IS, THEREFORE, DIRECTED TO BE EXCLUDED FROM THE LIST OF COMPARABLES. 22. TO SUM UP, WE SET-ASIDE THE IMPUGNED ORDER AND RE MIT THE MATTER TO THE FILE OF AO/TPO FOR RECOMPUTING THE ALP OF THE INTERNATIONAL TRANSACTIONS OF IMPORT OF RAW MATERIALS AND PROV ISION OF DESIGN ENGINEERING SERVICES IN CONSONANCE WITH THE DISCUS SION MADE ABOVE. NEEDLESS TO SAY, THE ASSESSEE WILL BE ALLOWE D REASONABLE OPPORTUNITY OF HEARING. 23. IN SO FAR AS THE DEPARTMENTAL APPEAL IS CONCERNED, THE LD. AR SUBMITTED AT THE OUTSET THAT THE TAX EFFECT IN THE APPEAL OF THE REVENUE IS LESS THAN RS.50.00 LAKH. THE CBDT VIDE F.NO.279/MISC/M-13/2018-ITJ DATED 20-08-2019 HAS CLARIFIED THAT THE REVISED MONETARY LIMITS SO MENTIONED IN CIRCULAR NO.17/20 19 ARE APPLICABLE TO ALL PENDING APPEALS. NOT ONLY THAT, IT HAS F URTHER BEEN DIRECTED TO THE COMPETENT AUTHORITIES TO WITHDRAW ALL SUCH APPEALS ON OR BEFORE 31-10-2019. THE LD. DR FAIRLY CONC EDED TO THE SAME. WE, THEREFORE, DISMISS THE APPEAL FILED BY THE REVEN UE AS NOT MAINTAINABLE BECAUSE OF LOW TAX EFFECT. ITA NOS.571, 541/PUN/2015 & ITA NO.976/PUN/2016 BEKAERT INDUSTRIES PRIVATE LIMITED 12 24. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWE D FOR STATISTICAL PURPOSES AND THAT OF THE REVENUE IS DISMISSED. A.Y. 2011-12 : 25. IN THIS APPEAL, THE ASSESSEE IS AGGRIEVED BY THE TRANSFER PRICING ADDITION AMOUNTING TO RS.6,91,37,958/- MADE IN THE INTERNATIONAL TRANSACTION OF IMPORT OF RAW MATERIALS. 26. THE ISSUE CONCERNING TAKING FOREIGN /ASSOCIATED ENTER PRISE AS A TESTED PARTY WAS CONCEDED TO BE SIMILAR TO THE EARLIER YEARS, WHICH HAS BEEN DECIDED BY THE TRIBUNAL AGAINST THE ASSESSEE IN ITS ORDER FOR ASSESSMENT YEAR 2009-10. THIS GROUND IS, THE REFORE, DISMISSED. 27. THE LD. AR DID NOT PRESS THE EXCLUSION OF CERTAIN C OMPARABLES SELECTED BY THE TPO AND ALSO THAT THE ADJUSTMENT CANNOT EXCEE D THE INCOME EARNED BY THE ASSOCIATED ENTERPRISE FORM SUCH SUPP LY OF RAW MATERIALS. THESE GROUNDS ARE, THEREFORE, DISMISSED A S NOT PRESSED. 28. THE OTHER ISSUE IS AGAINST NON-GRANTING OF DEPRECIATION ADJUSTMENT. HERE AGAIN, WE FIND THAT SIMILAR ISSUE HAS BEEN DECIDED BY THE TRIBUNAL IN ITS ORDER FOR THE ASSESSMENT YEAR 2009- 10 HOLDING ITA NOS.571, 541/PUN/2015 & ITA NO.976/PUN/2016 BEKAERT INDUSTRIES PRIVATE LIMITED 13 THAT THE DEPRECIATION AMOUNT SHOULD BE CONSIDERED AS A PART OF OPERATING COST AND THAT NO ADJUSTMENT CAN BE GRANTED ON ACC OUNT OF DIFFERENT AMOUNTS OF DEPRECIATION IN THE HANDS OF ASSESSEE AND COMPARABLES. HOWEVER, THE TRIBUNAL ACCEPTED THE ASSESSEE S CONTENTION FOR GRANTING ADJUSTMENT IN RESPECT OF DIFFERENT R ATES OF DEPRECIATION BETWEEN THE ASSESSEE AND COMPARABLES. FOLLOWIN G THE SAME VIEW, WE DIRECT THE AO TO EXAMINE THIS ISSUE. IN CASE , THERE IS SOME DIFFERENCE IN THE RATES OF DEPRECIATION BETWEEN THE ASS ESSEE AND COMPARABLES, THEN NECESSARY ADJUSTMENT SHOULD BE ALLO WED ON THIS COUNT IN THE PROFIT OF COMPARABLES. 29. THE OTHER ISSUES REGARDING DISREGARDING MULTIPLE YE AR DATA AND THE AO FAILING TO PROVIDE DETAILS OF COMPUTATION WITHOUT GIVIN G EFFECT TO THE DIRECTIONS OF DRP WERE NOT PRESSED BY THE LD. A R. THE SAME, THEREFORE, DISMISSED AS NOT PRESSED. 30. THE ONLY OTHER ISSUE WHICH SURVIVES IN THE APPEAL IS AGAINST RESTRICTING THE TRANSFER PRICING ADDITION ONLY TO THE INTERNATIONAL TRANSACTIONS AND NOT THE UNRELATED TRANSACTIONS OR TRANSACTIONS WITH NON-AES. FOLLOWING THE CONSISTENT VIEW TAKEN HEREIN IN THE IMMEDIATELY TWO PRECEDING ASSESSMENT YEARS, WE DIRECT TO R ESTRICT ITA NOS.571, 541/PUN/2015 & ITA NO.976/PUN/2016 BEKAERT INDUSTRIES PRIVATE LIMITED 14 THE AMOUNT OF TRANSFER PRICING ADDITION ONLY IN RESPECT OF TRANSACTIONS WITH AES AND NOT WITH NON-AES. 31. IN THE RESULT, THE APPEAL IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 06 TH DECEMBER, 2019. SD/- SD/- (PARTHA SARATHI CHAUDHURY) (R.S.SYAL) JUDICIAL MEMBER VIC E PRESIDENT PUNE; DATED : 06 TH DECEMBER, 2019 / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT; 2. / THE RESPONDENT; 3. THE CIT(A)-13, PUNE 4. 5. 6. THE PR.CIT-V, PUNE , , C / DR C, ITAT, PUNE; / GUARD FILE. / BY ORDER, // TRUE COPY // SENIOR P RIVATE SECRETARY , / ITAT, PUNE ITA NOS.571, 541/PUN/2015 & ITA NO.976/PUN/2016 BEKAERT INDUSTRIES PRIVATE LIMITED 15 DATE 1. DRAFT DICTATED ON 05-12-2019 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 06-12-2019 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS 7. DATE OF UPLOADING ORDER SR.PS 8. FILE SENT TO THE BENCH CLERK SR.PS 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK 10. DATE ON WHICH FILE GOES TO THE A.R. 11. DATE OF DISPATCH OF ORDER. *