UPS EXPRESS PVT. LTD. (FORMERLY KNOWN AS UPS JETAIR EXPRESS PVT. LTD.), MUMBAI V. DCIT - 11 (1)(2), MUMBAI

MA 209/MUM/2020

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 6018 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-02-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: J
• Assessment Year: 2014-2015
• Appeal Filed On: 25-08-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUNIL DESH
• Keywords: Transfer pricing; International transaction; Set aside
• Section: 10B

Judgement Text

IN THE INC OME TAX APPELLATE TRIBUNAL J BENCH, MUMBAI BEFORE SHRI S. RIFAUR RAHMAN, AM AND SHRI PAVAN KUMAR GADALE , AM M .A. NO . 209/MUM/2020 ARISING OUT OF I.T.A. NO. 7320/MUM/2018 (ASSESSMENT YEAR: 2014 - 15 ) UPS EXPRESS PRIVATE LTD (FORMERLY KNOWN AS UPS JETAIR EXPRESS PRIVATE LTD) 6 - A, SHYAM OFF JVLR, MAJAS VILLAGE, JOGESHWARI (E), MUMBAI - 400 060 / VS. DY.CIT - 11(1)(2), ROOM NO. 1, AAYAKAR BHAWAN, M.K. ROAD, MUMBAI - 400020 . ./ ./ PAN NO. AAACU4322N ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI NITESH JOSHI , AR / RESPONDENT BY : SHRI SUNIL DESHPANDE , DR / DATE OF HEARING : 15/01 /20 2 1 / DATE OF PRONOUNCEMENT : 04.02.2021 / O R D E R PER S. RIFAUR RAHMAN, ACCOUNTANT MEMBER : THE PRESENT MISCELLANEOUS APPLICATION HAS BEEN FILED BY THE ASSESSEE FOR RECTIFYING THE ORDER DATED 04.03.2020 PASSED IN ITA NO. 7320 /MUM/201 8 AND FOR DISPOSING OF THE APPEAL ON MERITS. 2 M.A. NO. 209/MUM/2020 UPS EXPRESS PRIVATE LTD 2 . AT THE OUTSET, LD. AR APPEARING ON BEHALF OF THE ASSESSEE BROUGHT TO OUR NOTICE THE WRITTEN APPLICATION FOR RECTIFICATION OF APPARENT MISTAKES IN ORDER PASSED IN ITA NO. 7320/MUM/2018 ON 04.03.2020 , WHICH ARE AS UNDER: - 1 . THE BRIEF FACTS, IN SO FAR AS RELEVANT FOR DISPOSAL OF THE ISSUES ARISING IN THE PRESENT APPLICATION, ARE AS STATED HEREAFTER: A. UNITED PARCEL SERVICE ( 'UPS') AS A GROUP WAS FOUNDED IN 1907 IN THE UNITED STATES OF AMERICA. THE PRIMARY BUSINESS OF THE GROUP IS TO PROVIDE DOOR TO DOOR TIME DEFINITE AND GUARANTEE DELIVERY SERVICES IN MORE THAN 220 COUNTRIES AND TERRITORIES ACROSS THE GLOBE. EVERYDAY UPS DELI VERS ON AN AVERAGE 18 MILLION PACKAGES TO 9.8 MILLION CUSTOMERS. EACH PACKAGE PASSES THROUGH THE UPS NETWORK WHICH HAS BEEN CAREFULLY ENGINEERED TO PROVIDE SPEED, RELIABILITY AND EFFICIENCY. THE APPLICANT HAS BEEN PROVIDING THIS SERVICE IN INDIA B. SINCE SOPHISTICATED TECHNOLOGY IS CRUCIAL FOR SURVIVAL IN THIS COURIER / EXPRESS DELIVERY INDUSTRY, THE APPLICANT HAD ENTERED IN TO A TECHNOLOGY LICENSE AGREEMENT WITH UNITED PARCEL SERVICES OF AMERICA INC. ('UPSAI') (SEE PAGES 7 TO 23 OF THE PAPER BOOK VOL - II). IT USED THE TECHNICAL KNOW - HOW AND ADVANCED MANAGEMENT TECHNIQUES IN ITS DAY TO DAY BUSINESS ACTIVITIES. DETAILED SUBMISSIONS AND EVIDENCE AS PLACED BEFORE THE TRANSFER PRICING OFFICER ('TPO') ON THE NATURE OF KNOW - HOW AND SERVICES AND MANNER OF ITS UTILIS ATION BY THE APPLICANT IN ITS BUSINESS, VIDE LETTER DATED 20.06.2017 IS AT PAGES 1 TO 957 OF THE PAPER BOOK 3 M.A. NO. 209/MUM/2020 UPS EXPRESS PRIVATE LTD VOL - II. A BRIEF DESCRIPTION THEREOF IS AT PAGES 1 TO 6 AND THE NECESSARY MATERIAL IN SUPPORT THEREOF ARE AT PAGES 7 TO 957 OF THE SAID PAPER BOOK. C . DURING THE YEAR UNDER CONSIDERATION, THE APPLICANT HAD MADE PAYMENT OF RS. 11,02,52,900 AS TECHNICAL KNOW - HOW FEES TO UPSAI. SINCE THIS WAS AN INTERNATIONAL TRANSACTION, ALONG WITH OTHER QUALIFYING INTERNATIONAL TRANSACTIONS (DETAILS WHEREOF ARE AT PAG E 2 OF THE TPO'S ORDER), THEIR ARM'S LENGTH PRICE HAD BEEN BENCHMARKED ON AN AGGREGATE BASIS USING THE TRANSACTIONAL NET MARGIN METHOD ('TNMM'). USING OPERATING PROFIT TO OPERATING INCOME AS THE PROFIT LINKED INDICATOR, THE TPO HAS DETERMINED THE OPERATING PROFIT MARGIN OF THE APPLICANT AT 6.36% AND THAT OF THE COMPARABLE COMPANIES AT 1.31% (( - ) 0.06% POST DRP DIRECTIONS). SINCE THE OPERATING PROFIT MARGIN OF THE APPLICANT IS ABOVE THE MARGINS OF COMPARABLE COMPANIES, NO TRANSFER PRICING ADJUSTMENT HAS BEEN MADE. THIS ASPECT IS BEING EMPHASISED BECAUSE IN ITS ORDER DATED 04.03.2020 THE HONB LE TRIBUNAL HAS PROCEEDED ON THE BASIS THAT THE SAID TRANSACTION HAS NOT BEEN BENCHMARKED WHICH IS FACTUALLY INCORRECT. THE RELEVANT REFERENCE IN THE TRANSFER PRICING STU DY REPORT WITH RESPECT TO TNMM BEING THE MOST APPROPRIATE METHOD FOR BENCHMARKING THE TECHNICAL KNOW - HOW FEES IS AT PAGES 45 TO 49 O F THE PAPER BOOK VOL I. SIMILARLY, SUBMISSION MADE IN THIS REGARD BEFORE THE TPO VIDE LETTER DATED 20.06.2017 IS AT PAGE NO 5 OF THE PAPER BOOK VOL - II. D. IT IS ALSO AN UNDISPUTED POSITION THAT, IN SO FAR AS THE TRANSFER PRICING ADJUSTMENT RELATING TO PAYMENT OF TECHNICAL KNOW - HOW FEES 4 M.A. NO. 209/MUM/2020 UPS EXPRESS PRIVATE LTD TO UPSAI IS CONCERNED, THE TPO'S ORDER FOR ASSESSMENT YEAR 2014 - 15 SIMPLY REPLICATES THE COR RESPONDING PART OF THE TRANSFER PRICING ORDER FOR ASSESSMENT YEAR 2013 - 14, EXCEPT FOR THE CHANGE OF DATES AND AMOUNTS. THE DISPUTE RESOLUTION PANEL ('DRP') HAS FOLLOWED THE CONCLUSION REACHED BY IT ON THIS ISSUE FOR ASSESSMENT YEAR 2013 - 14. IN SO FAR AS AS SESSMENT YEAR 2013 - 14 WAS CONCERNED, THE HON'BLE TRIBUNAL BY ITS ORDER DATED 27.09.2019 HAS DELETED THE TRANSFER PRICING ADJUSTMENT AND ALSO REJECTED THE LD. DR'S SUBMISSION URGING RESTORATION OF THE ISSUE TO THE FILE OF THE TPO. FOR THIS PURPOSE, IT HAS C ONCLUDED THAT THE TPO HAS FAILED TO DEMONSTRATE THAT ARM'S LENGTH PRICE ('AUP') SHOWN BY THE APPLICANT USING THE TNMM IS INCORRECT. IN THIS REGARD IT HAS ALSO FOLLOWED JUDGMENT DATED 07.03.2017 OF THE JURISDICTIONAL HON'BLE HIGH COURT IN THE CASE OF CIT V. JOHNSON & JOHNSON LTD. IN INCOME TAX APPEAL NO. 1030 OF 2014. 2. ON THE AFORESAID FACTS, THE APPLICANT RESPECTFULLY SUBMITS THAT THE HON'BLE TRIBUNAL'S ORDER DATED 04.03.2020 FOR ASSESSMENT YEAR 2014 - 15 DISCLOSES FOLLOWING MISTAKES WHICH ARE APPARENT FROM THE RECORD: A. IT IS WELL SETTLED POSITION IN LAW THAT JUDGMENT OF THE JURISDICTIONAL HON'BLE HIGH COURT AND ORDER PASSED BY CO - ORDINATE BENCH IS BINDING ON THE HON'BLE TRIBUNAL. IN PARAGRAPH 12 AT PAGE 9 OF ITS PRESENT ORDER, THE HON'BLE TRIBUNAL HAS AC CEPTED THAT THE NATURE OF PAYMENT AND THE FACTS FOR THE CURRENT YEAR ARE SIMILAR TO THAT FOR ASSESSMENT YEAR 2013 - 14. THE LD. DR'S SUBMISSION THAT THE ISSUE MAY BE RESTORED TO THE TPO, AS MADE FOR THE CURRENT YEAR, ALREADY STOOD REJECTED FOR ASSESSMENT 5 M.A. NO. 209/MUM/2020 UPS EXPRESS PRIVATE LTD YEA R 2013 - 14. IN THESE CIRCUMSTANCES, NOT FOLLOWING ORD ER DATED 27.09.2019 OF THE HONB LE TRIBUNAL IN THE APPLICANT'S OWN CASE FOR ASSESSMENT YEAR 2013 - 14 WHICH IN TURN HAD FOLLOWED JUDGMENT DATED 07.03.2017 IN THE CASE OF JOHNSON & JOHNSON LTD. (SUPRA), DESP ITE EXTENSIVELY REFERRING TO THE SAME, DISCLOSES A MISTAKE, WHICH IT IS RESPECTFULLY SUBMITTED, APPARENT FROM THE RECORD. B. IN PARAGRAPH 1 3 AT PAGES 9 AND 10 OF THE HONB LE TRIBUNAL'S ORDER, DESPITE NOTING THE FACT THAT THE REVENUE'S PRAYER TO RESTORE TH E ISSUE TO THE FILE OF THE TPO FOR FRESH DETERMINATION OF ALP WAS NOT ACCEPTED BY THE HON BLE TRIBUNAL FOR ASSESSMENT YEAR 2013 - 14, IN OTHER PART OF THE SAME PARAGRAPH IT IS NOTED THAT THIS ISSUE HAS BEEN SET ASIDE BY THE HON BLE TRIBUNAL FOR ASSESSMENT YE AR 2013 - 14. THIS IS NOT ONLY FACTUALLY INCORRECT BUT REFLECTS AN INHERENT CONTRADICTION. THE APPLICANT THEREFORE SUBMITS THAT, BASED ON THE ABOVE, CONCLUSION REACHED BY THE HON'BLE TRIBUNAL IN PARAGRAPH 14 AT PAGE 10 OF THE ORDER REMITTING THE ISSUE BACK T O THE TPO/ASSESSING OFFICER ('AO') TO DETERMINE THE ALP REFLECTS A MISTAKE, WHICH IT IS RESPECTFULLY SUBMITTED, APPARENT FROM THE RECORD. C. AS STATED ABOVE, THE APPLICANT HAS BENCHMARKED THE TRANSACTION RELATING TO PAYMENT OF TECHNICAL KNOW - HOW FEES TO U PSAI, ON AN AGGREGATE BASIS ALONG WITH OTHER INTERNATIONAL TRANSACTIONS, USING THE TNMM. THE TPO HAS APPLIED HIS MIND TO THE DETERMINATION OF OPERATING PROFIT MARGIN OF THE APPLICANT AND THE COMPARABLES UNDER THIS METHOD AND CONCLUDED THAT NO TRANSFER PRIC ING ADJUSTMENT IS REQUIRED TO BE MADE AS ITS OPERATING PROFIT 6 M.A. NO. 209/MUM/2020 UPS EXPRESS PRIVATE LTD MARGIN IS WITHIN THE STATUTORY RANGE. REVENUE HAS NEITHER DISPUTED THAT TNMM IS THE MOST APPROPRIATE METHOD FOR DETERMINATION OF ALP FOR THIS TRANSACTION NOR HAVE THEY POINTED OUT ANYTHING IN TH E TPO'S WORKING OF SUCH ALP WHICH REQUIRES RECONSIDERATION. IN PARAGRAPH 14 AT PAGE 10 OF ITS PRESENT ORDER, THE HON'BLE TRIBUNAL HAS FURTHER OBSERVED THAT PAYMENT OF TECHNICAL KNOW - HOW WAS NEVER BENCHMARKED IN THE EARLIER YEAR. THIS IS AGAIN FACTUALLY INC ORRECT AS THE SAID TRANSACTION HAS BEEN BENCHMARKED FOR THE EARLIER YEARS AS WELL AS THE CURRENT YEAR. IN THESE CIRCUMSTANCES, SINCE NOTHING HAS BEEN POINTED OUT BY THE REVENUE TO DEMONSTRATE THAT ALP SHOWN BY THE APPLICANT IS INCORRECT, REMITTING OF THE M ATTER BY THE HON'BLE TRIBUNAL TO THE TPO/AO FOR FRESH DETERMINATION OF ALP CONTRARY TO THE CONCLUSION REACHED BY IT FOR ASSESSMENT YEAR 2013 - 14 DISCLOSES A MISTAKE, WHICH IT IS RESPECTFULLY SUBMITTED, APPARENT FROM THE RECORD. 3. FROM THE ABOVE, LD. AR SUB MITTED THAT ASSESSEE HAS ALREADY DETERMINED THE ALP FOLLOWING THE MOST APPROPRIATE METHOD I.E. TNMM AND BENCHMARKED @ 6.36%, WHEREAS TPO HAS ANALYZED THE TP STUDY CONDUCTED BY THE ASSESSEE AND HE ALSO DETERMINED THE ALP ADJUSTMENT AND CARRIED OUT COMPARABL E STUDY. HE SUBMITTED WITH REFERENCE TO PAGE - 7 OF TPO ORDER , WHEREIN TPO ANALYZED THE FINAL SET OF COMPARABLES AND DETERMINED THE ARITHMETIC MEAN AT 1.31%. HE FURTHER BROUGHT TO OUR NOTICE THE FINDINGS OF ITAT IN THE ASSESSMENT YEAR 2013 - 14 AND SUBMITTED T HAT THE FACTS IN THE PRESENT ASSESSMENT YEAR AND PREVIOUS ASSESSMENT YEAR ARE IDENTICAL AND SIMILAR. HE FURTHER BROUGHT TO OUR NOTICE PARA - 6 OF THE 7 M.A. NO. 209/MUM/2020 UPS EXPRESS PRIVATE LTD ITAT ORDER, WHEREIN HONBLE ITAT HAS CONSIDERED ALL THE ASPECTS AND FACTS OF THE ASSESSEES OWN CASE AND CAM E TO THE CONCLUSION, BUT IN THE PRESENT ASSESSMENT YEAR, HONBLE ITAT HAS NOTED THE FACTS THAT THE PRESENT ASSESSMENT YEAR IS SIMILAR TO THE PREVIOUS ASSESSMENT YEAR AND REMITTED BACK THE ISSUE TO AO/TPO WITH OBSERVATION THAT TECHNICAL KNOWHOW WAS NEVER BE NCHMARKED IN EARLIER ASSESSMENT YEAR. HE SUBMITTED THAT THERE IS A MISTAKE APPARENT ON RECORD THAT THERE IS NO CHANGE IN THE FACTS OF THE PREVIOUS ASSESSMENT YEAR AND THIS ASSESSMENT YEAR. FOR THAT PROPOSITION, HE RELIED ON THE DECISION OF HONBLE BOMBAY H IGH COURT IN THE CASE OF HATKESH CO. OP. HSG. SOCIETY LTD. VRS. ACIT (ITA NO. 328, 372, 407, 636, 961 & 1079 OF 2014). THE COPY OF THE SAME IS PLACED ON RECORD WHEREIN HONBLE BOMBAY HIGH COURT HAS OBSERVED AS UNDER: - 5. THE IMPUGNED ORDER OF THE TR IBUNAL AFTER MAKING A NOTE OF 'ITS CO - ORDINATE BENCH'S ORDER DATED 24 JUNE 2011 SEEKS TO TAKE A DIFFERENT VIEW. THIS DIFFERENT VIEW WAS TAKEN IN THE IMPUGNED ORDER INTER ALIA BY RELYING UPON THE DECISION OF THIS COURT SIND CO. OP. HSG - SOCIETY (SUPRA) WHICH WAS ALSO SUBJECTED TO CONSIDERATION IN ITS ORDER DATED 24 JUNE 2011. WE ARE OF THE VIEW THAT WHEN AN IDENTICAL ISSUE, WHICH HAD EARLIER ARISEN BEFORE THE CO - ORDINATE BENCH OF THE TRIBUNAL ON IDENTICAL FACTS AND A VIEW HAS BEEN TAKEN ON THE ISSUE THEN JUDI CIAL DISCIPLINE WOULD DEMAND THAT A SUBSEQUENT BENCH OF THE TRIBUNAL HEARING THE SAME ISSUE SHOULD FOLLOW THE VIEW TAKEN BY ITS EARLIER CO - ORDINATE BENCH NO DOUBT THIS DISCIPLINE IS SUBJECT TO THE WELL SETTLED EXCEPTIONS OF THE EARLIER ORDER BEING PASSED P ER INCURIM OR SUB SILENTIO OR IN THE MEANTIME, THERE HAS BEEN ANY CHANGE IN LAW, EITHER 8 M.A. NO. 209/MUM/2020 UPS EXPRESS PRIVATE LTD STATUTORY OR BY VIRTUE OF JUDICIAL PRONOUNCEMENT. IF THE EARLIER ORDER DOES NOT FALL WITHIN THE EXCEPTION WHICH AFFECTS ITS BINDING CHARACTER BEFORE A CO - ORDINATE BENCH OF THE TRIBUNAL, THEN IT HAS TO FOLLOW IT. HOWEVER, IF THE TRIBUNAL HAS A VIEW DIFFERENT THEN THE VIEW TAKEN BY ITS CO - ORDINATE BENCH ON AN IDENTICAL ISSUE, THEN THE ORDER TAKING SUCH A DIFFERENT VIEW MUST RECORD ITS REASONS AS TO WHY IT DOES NOT FOLLOW T HE EARLIER ORDER OF THE TRIBUNAL ON AN IDENTICAL ISSUE, WHICH COULD ONLY BE ON ONE OF THE WELL SETTLED EXCEPTIONS WHICH AFFECT THE BINDING NATURE OF THE EARLIER ORDER. IT COULD ALSO DEPART FROM THE EARLIER VIEW OF THE TRIBUNAL IF THERE IS DIFFERENCE IN FAC TS FROM THE EARLIER ORDER OF CO - ORDINATE BENCH BUT THE SAME MUST BE RECORDED IN THE ORDER. THE IMPUGNED ORDER IS BLISSFULLY SILENT ABOUT THE REASON WHY IT CHOSES TO IGNORE THE EARLIER DECISION OF THE TRIBUNAL RENDERED AFTER CONSIDERATION OF SIND CO. OP. HS G. SOCIETY (SUPRA), AND TAKE A VIEW CONTRARY TO THAT TAKEN BY ITS EARLIER CO - ORDINATE BENCH. IT IS MADE CLEAR THAT IN CASE A SUBSEQUENT BENCH OF THE TRIBUNAL DOES NOT AGREE WITH THE REASONS INDICATED IN A BINDING DECISION OF A CO - ORDINATE BENCH, THEN FOR R EASON TO BE RECORDED, IT MUST REQUEST THE PRESIDENT OF THE TRIBUNAL TO CONSTITUTE A LARGER BENCH TO DECIDE THE DIFFERENCE OF VIEW ON THE ISSUE. 4. WITH REFERENCE TO ABOVE SAID DECISION, HE SUBMITTED THAT IDENTICAL ISSUE WHICH HAD EARLIER RAISED BEFORE THE COORDINATE BENCH OF ITAT ON IDENTICAL FACTS AND A VIEW WAS TAKEN BY THE BENCH AND THE SUBSEQUENT BENCH OF THE TRIBUNAL HEARING THE SAME ISSUE ARE FOLLOWING THE VIEW TAKEN BY THE EARLIER CO - ORDINATE BENCH UNLESS IT IS PER INCURIM OR SUB SILENTIO OR FACTS AR E DIFFERENT. HE SUBMITTED THAT IN THE GIVEN CASE, IT IS NOT FOLLOWING PER INCURIM OR SUB SILENTIO OR FACTS ARE 9 M.A. NO. 209/MUM/2020 UPS EXPRESS PRIVATE LTD DIFFERENT IN THE GIVEN CASE. THEREFORE, HE PRAYED TO RECTIFY THE APPARENT MISTAKES AND PASS NECESSARY ORDER. 5 . ON THE OTHER HAND, LD. DR SUBMI TTED THAT THERE IS NO MISTAKE APPARENT ON RECORD , HOWEVER HE ACCEPTED THAT THE FACTS IN THE PRESENT ASSESSMENT YEAR ARE SIMILAR TO THE FACTS IN THE PREVIOUS ASSESSMENT YEAR. 6 . CONSIDERED THE RIVAL SUBMISSIONS AND MATERIAL PLACED ON RECORD. WE NOTICE THAT THE BENCH HAS OBSERVED IN THE PARA NO. 9 OF THE ORDER THAT THE ASSESSEE HAS ADOPTED TNMM AS MAM AND ID ENTIFIED 6 COMPARABLE COMPANIES. ASSESSEE DETERMINED THE PLI @ 6.36% AGAINST THE ARITHMETIC MEAN AT 2.48% AND CLAIMED THAT IT IS AT ARMS LENGTH. IT IS ALSO OBSERVED THAT THE TPO HAS REJECTED TWO COMPARABLE COMPANIES AND DETERMINED THE ALP WITH THE REMAINING 4 COMPARABLES AT 1.31%. IT WAS FURTHER OBSERVED THAT TPO PROCEEDED FURTHER TO CARRIED OUT THE TP STUDY TO DETERMIN E THE ALP BASED ON BENEFIT TEST AND CAME TO THE CONCLUSION THAT THE ASSESSEE HAS NOT SUBMITTED ANY DOCUMENT TO ESTABLISH THAT T HE ASSESSEE RECEIVED THE TRAINING, TECHNOLOGY, ETC. AS THE BENEFIT RECEIVED FOR ABOVE EXPENSES WAS NOT SUBSTANTIATED, TPO DETERMINE THE ALP AT NIL. 7. THE BENCH HAS SIMILARLY OBSERVED IN PARA 12 THAT ON SIMILAR SET OF FACTS IN EARLIER ASSESSMENT YEAR 2013 - 14, FOR SIMILAR PAYMENT OF TECHNICAL ASSISTANCE FEES TO ITS AE, SIMILAR TREATMENT WAS MET OUT BY TPO/AO AND DRP. IN APPEAL, THE 10 M.A. NO. 209/MUM/2020 UPS EXPRESS PRIVATE LTD COORDINATE BENCH HAS HELD THAT T PO HAS NOT DETERMINED ALP IN CONFORMITY WITH THE STATUTORY PROVISION AND HAS NOT DEMONSTRATED THE ALP DECLARED BY THE ASSESSEE IS INCORRECT. ACCORDINGLY, THE APPEAL WAS RENDERED IN FAVOUR OF THE ASSESSEE. EVEN THOUGH, LD. DR PRAYED FOR REMITTING THE ISSUE BACK TO AO/TPO, THE BENCH HAS SET ASIDE THE ORDER. 8. FURTHER, IT OBSERVED IN PARA 4 THAT TPO HAS APPLIED BENEFIT TEST WHICH IS NOT AS PER THE RULES PRESCRIBED UNDER RULE 10B & 10AB OF THE I.T. RULES. THE BENCH OBSERVED THAT THE PAYMENT OF TECHNICAL KNOW HOW WAS NEVER BENCHMARKED IN THE EARLIER ASSESSMENT YEARS. HOWEVER, THE LD. AR BROUGHT TO OUR NOTICE IN THIS MA THAT THE BENCHMARK WAS ALREADY CARRIED OUT BY THE ASSESSEE AND THE SAME WAS VERIFIED BY TPO. THE TPO HAS ALREADY CARRIED OUT THE BENCH MARKING A ND DETERMINED THE SAME IN THIS ASSESSMENT YEAR AT 1.31%. THEREFORE, CONSIDERING THIS THAT TPO HAS ALREADY BENCH MARKED THE ALP, WE ARE IN AGREEMENT WITH THE SUBMISSION OF LD. AR THAT THE ASSESSEE HAS FOLLOWED ONE OF THE METHOD PRESCRIBED UNDER RULE 10B AND 10AB AND CARRIED OUT THE TP STUDY. THE SAME WAS VERIFIED A ND DETERMINED BY TPO AT 1.31%, W HEN THIS EXERCISE IS ALREADY CARRIED OUT AND ALP WAS ALREADY DETERMINED AT 1.31%. THE OBSERVATION OF THE BENCH THAT THE ALP WAS NEVER BENCH MARKED WAS MISTAKE APPARE NT ON RECORD. FURTHER, THE FACTS IN THIS ASSESSMENT YEAR AND EARLIER ASSESSMENT YEAR ARE EXACTLY SIMILAR AND AS HELD IN THE CASE OF HATKESH CO. OP. HSG. SOCIETY LTD.(SUPRA), WHEN THE FACTS 11 M.A. NO. 209/MUM/2020 UPS EXPRESS PRIVATE LTD ARE SIMILAR, ONLY WAY IT CAN DISTINGUISH IS WHEN IT IS ON ONE OF TH E WELL SETTLED EXCEPTIONS LIKE PER INCURIM OR SUB SILENTIO OR THERE IS ANY CHANGE IN LAW. 9 . IN THE GIVEN CASE, WE NOTICE THAT THERE IS NO CHANGE IN THE FACTS OF BOTH THE YEAR AND IT DOES NOT FALL ANY OF THE SETTLED EXCEPTIONS. FURTHER, IT WAS SENT BACK T O TPO/AO FOR BENCH MARKING THE ALP, BUT WE NOTICE THAT ALP WAS ALREADY BENCH MARKED AS PER ONE OF THE PRESCRIBED METHOD. IT DOES NOT SOLVE ANY PURPOSE BY REMITTED IT BACK TO BENCH MARK ONE MORE TIME. SINCE, THE FACTS ARE IDENTICAL, WE MODIFY OUR DIRECTION SIMILAR TO THE DIRECTION IN THE ASSESSMENT YEAR 2013 - 14. SIMILARLY, W E ALSO SET A SIDE THE ORDER AS IN THE ASSESSMENT YEAR 2013 - 14. TO THAT EXTENT, THE ORDER IS MODIFIED TO READ AS BELOW: - I) THE PARA NO. 14 OF THE SAID ORDER IS DELETED . I I ) THE PARA NO. 15 IS REPLACED AS IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. 10 . I N THE NET RESULT, THE PRESENT M A FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 04.02. 2021. SD/ - SD/ - ( PAVAN KUMAR GADALE ) (S. RIFAUR RAHMAN ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED : 04/02 /2021 SR.PS DHANANJAY. 12 M.A. NO. 209/MUM/2020 UPS EXPRESS PRIVATE LTD / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F I LE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI