TATA CONSULTANCY SERVICES LTD, MUMBAI V. DCIT LTU -1 ( NOW ACIT CIRCLE 3 ( 4 ), MUMBAI

MA 59/MUM/2021

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 6761 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-08-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: I
• Assessment Year: 2008-2009
• Appeal Filed On: 25-02-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ORS ARISING O; S S IYENGAR SR D R MA NO M
• Keywords: Transfer pricing; Rectification of order; Double taxation relief; Revenue expenditure
• Section: 43; 48; 13; 22

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH I, MUMBAI BEFORE SHRI RAJESH KUMAR, ACCOUNTANT MEMBER AND SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER MA NO.15/M/2021 [ARISING OUT OF IT(TP)A NO.794/M/2018] ASSESSMENT YEAR: 2010-11 MA NO.66/M/2021 [ARISING OUT OF IT(TP)A NO.1207/M/2018] ASSESSMENT YEAR: 2010-11 MA NO.17/M/2021 [ARISING OUT OF IT(TP)A NO.3263/M/2017] ASSESSMENT YEAR: 2008-09 MA NO.65/M/2021 [ARISING OUT OF IT(TP)A NO.3746/M/2016] ASSESSMENT YEAR: 2008-09 ASST. COMMISSIONER OF INCOME TAX, CIR 3(4), CENTRE-1, 29 TH FLOOR, WORLD TRADE CENTRE, CUFFE PARAD, MUMBAI 400005 VS. M/S. TATA CONSULTANCY SERVICES LTD., 9 TH FLOOR, NIRMAL BLDG., NARIMAN POINT, MUMBAI 21 PAN: AAACR4849R (APPELLANT) (R ESPONDENT) MA NO.59/M/2021 [ARISING OUT OF ITA NO.3263/M/2017] ASSESSMENT YEAR: 2008-09 M/S. TATA CONSULTANCY SERVICES LTD., 9 TH FLOOR, NIRMAL BLDG., NARIMAN POINT, MUMBAI 21 PAN: AAACR4849R VS. DCIT LTU-1 (NOW ACIT CIRCLE 3(4), 29 TH FLOOR, CENTRE-1, WORLD TRADE CENTRE, CUFFE PARAD, MUMBAI - 400005 (APPELLANT) (R ESPONDENT) PRESENT FOR: ASSESSEE BY : SHRI PORUS KAKA, A.R. & SHRI MANISH KANT, A.R. REVENUE BY : SHRI S.S. IYENGAR, SR. D.R. MA NO.15/M/2021 & ORS [ARISING OUT OF IT(TP)A NO.794/M/2018] & ORS M/S. TATA CONSULTANCY SERVICES LTD. 2 DATE OF HEARING : 11.06.2021 DATE OF PRONOUNCEMENT : 23.08.2021 O R D E R PER RAJESH KUMAR, ACCOUNTANT MEMBER: BY VIRTUE OF THESE 4 MISCELLANEOUS APPLICATIONS TH E REVENUE SEEKS RECTIFICATION OF THE ORDER PASSED BY THE CO- ORDINATE BENCH OF THE TRIBUNAL DATED 18.08.2020 IN ITA NO.3263/M/2017 & ORS THE SAID ORDER CONTAINED APPAR ENT MISTAKES. SIMILARLY BY VIRTUE OF MISCELLANEOUS APPL ICATION FILED BY THE ASSESSEE, THE ASSESSEE SEEKS THE RECTIFICATI ON OF ORDER PASSED BY THE TRIBUNAL IN ITA NO.3263/M/2017 A.Y. 2 008-09. MA NOS.15, 17, 65 & 66/M/2021 (REVENUES MAS) 2. THE LD. D.R. SUBMITTED THAT THE CONTENTIONS AND SUBMISSIONS OF THE REVENUE HAVE NOT BEEN CONSIDERED WHILE PASSING THE ORDER BY THE CO-ORDINATE BENCH OF THE T RIBUNAL AND THUS THE ORDER OF THE BENCH IS GIVING TOTALLY A DIF FERENT PERSPECTIVE AND VIEW. THE LD DR SUBMITTED THAT THE IN VIEW OF THE SAID FACT THE ORDER PASSED BY THE TRIBUNAL IS S UFFERING FROM SEVERAL MISTAKES WHICH MAY BE RECTIFIED. THE LD. D .R. SUBMITTED THAT THESE MISTAKES HAVE OCCURRED BECAUSE THE CO-OR DINATE BENCH OF THE TRIBUNAL HAS FAILED TO INCORPORATE THE ARGUMENTS ORAL AS WELL AS WRITTEN PRESENTED BY THE REVENUE I N ITS DEFENSE AND IN VARIOUS PARAS OF THE ORDER THOUGH THE ARGU MENTS HAVE BEEN MENTIONED BUT THE SAME HAS NOT BEEN DEALT WITH IN THE OPERATIVE PART OF THE ORDER. REFERRING TO MA NO.17/ M/2021 ASSESSMENT YEAR: 2008-09, THE LD DR SUBMITTED THAT WHILE DECIDING THE GROUND NO.1 DEALING WITH DISALLOWANCE OF DEDUCTION OF STATE TAXES PAID OVERSEAS, IN PARA 13 IT HAS BEE N STATED THAT MA NO.15/M/2021 & ORS [ARISING OUT OF IT(TP)A NO.794/M/2018] & ORS M/S. TATA CONSULTANCY SERVICES LTD. 3 THE DR OF REVENUE SUPPORTED THE ORDER OF THE LOWER AUTHORITIES WHEREAS, THE LD CIT DR, ON THIS ISSUE, HAS MADE ELA BORATE SUBMISSIONS VIDE PAGES 20 TO 29 OF WRITTEN SUBMISSI ONS. THE OPERATIVE PART/DECISION IS IN PARA 15 STATING THAT CONSIDERING THE DECISION OF THE TRIBUNAL FOR A.Y 2009-10 ON IDE NTICAL GROUNDS OF APPEAL WHEREIN NEITHER VARIATION OF FACT S NOR ANY CONTRARY LAW IS BROUGHT TO THE NOTICE, HENCE THE G ROUND IS ALLOWED. THE LD. DR SUBMITTED THAT TRIBUNAL WITHOUT DEALING WITH THE ARGUMENTS OF THE LD DR, HAS PROCEEDED TO FOLLOW ITS EARLIER DECISION FOR AY 2009-10. IT IS PERTINENT TO NOTE T HAT THE ISSUES RAISED BY LD CIT DR WERE NOT CONSIDERED BY THE TRI BUNAL IN ITS EARLIER ORDER, HOWEVER THEY HAVE NOT BEEN DEALT W ITH WHILE RENDERING THE DECISION FOR THE PRESENT APPEAL DESPI TE THE SAME BEING SUBMITTED FOR CONSIDERATION . HENCE THIS ALSO IS A MISTAKE APPARENT FROM RECORD. THE LD. DR STATED THAT E LABORATE WRITTEN SUBMISSIONS WERE MADE BY LD DR IN PAGES 11 TO 20 EM PHASISING THAT THAT THE DECISION IN THE CASE OF RELIANCE INFR ASTRUCTURE LTD 390 ITR 271 (BOM) WAS RENDERED IN THE CONTEXT THAT REVENUE HAS NOT EVEN URGED THAT CONTEXT OF SECTION 40(A)(II) OF THE ACT WOULD REQUIRE IT TO MEAN TAX PAID ANYWHERE IN THE WORLD A ND NOT ONLY TAX PAYABLE/PAID UNDER THE ACT. PARA 9 ON PAGE 14 O F WRITTEN SUBMISSION IT HAD HIGHLIGHTED THE FACT THAT THE ABO VE DECISION HAD BEEN CONSIDERED BY AHMEDABAD TRIBUNAL IN ELITEC ORE TECHNOLOGIES P LTD. AND DIFFERENTIATED, BUT THE SAM E HAS NOT BEEN CONSIDERED IN THIS ORDER. THE LD DR ALSO REFE RRED TO BINDING DECISION OF HON. BOMBAY HIGH COURT IN THE C ASE OF LUBRIZOL INDIA LTD. 54 TAXMANN 363 (BOM) WHICH IS A PPROVED BY SC I 219 ITR 581 IN SMITH KLINE AND FRENCH (INDIA) LTD,, IN THIS DECISION, IT WAS HELD THAT WORD ANY QUALIFIES BO TH RATE AND TAX. MA NO.15/M/2021 & ORS [ARISING OUT OF IT(TP)A NO.794/M/2018] & ORS M/S. TATA CONSULTANCY SERVICES LTD. 4 3. WHILE DECIDING THE GROUND NO 3 DEALING WITH FOR EIGN TAX CREDIT U/S 90(1)(A)(II) OF THE ACT,IN PARA 21, THE LD DR SUBM ITTED THAT TRIBUNAL HAS NOTICED THAT THE LD DR FOR THE REVENUE IN HIS WRITTEN SUBMISSIO NS AFTER REFERRING THE DECISION OF KARNATAKA HIGH COURT IN WIPRO LTD (SUPRA) SUBMITTED THAT THE DECISIONS ON WHICH DECISION WAS RENDERED IS STAND OVERRULED BY SUPREME COURT HOWEVER, THE TRIBUNAL WITHOUT DEALING WITH THE ARGUMENT OF THE RELIED UPO N DECISION BEING OVERRULED BY THE HON. APEX COURT, PROCEEDED TO FOLLOW ITS ORDER FOR AY 2009-10. THE TRIBUNAL IN AY 2009-10, HAS NOT DEALT WITH THE BINDING DECISION OF HON. SUPREME COURT IN THE CASE OF YOKOGAWA INDIA LTD [ 2017] 77 TAXMANN.COM 41 (SC) . HENCE THIS IS A MISTAKE APPARENT FROM RECORD. THE LD AR, IN PARA 20 PAGE 2 2, HAS STATED THAT THE DECISION IN THE CASE OF YOKOGAWA IS ALREADY CONSIDERED IN THE C ASE OF WIPRO BY HON. KAR HIGH COURT. IN FACT, THIS IS NOT THE CORRECT LEGAL POSI TION AS MADE OUT TO BE. THE HON. KAR HIGH COURT IN PARA 48 OF ITS DECISION IN WIPRO LTD( SUPRA) HAS REFERRED TO ITS EARLIER DECISION OF 2012 IN CASE OF YOKOGAWA WHILST THE LD CIT DR REFERRED TO A SUBSEQUENT DECISION OF HON. SC IN THE CASE OF YOKOGAWA RENDERE D IN 2017 [ 2017] 77 TAXMANN.COM 41 (SC) . 3. THE LD DR FURTHER SUBMITTED THAT IN PARA 22 IN T HE IMPUGNED ORDER, THE TRIBUNAL HAS RELIED ON THE EARL IER YEAR DECISION IN THE ASSESSEES OWN CASE FOR A.Y 2009-10 AND IN PARA 23 IT HAS MENTIONED THAT NO VARIATION HAS BEEN POIN TED OUT BY THE DR AND HENCE IT FOLLOWED THE EARLIER YEAR ORDER THEREBY NOT ACKNOWLEDGING THE WRITTEN SUBMISSIONS ON THE POINT. THE TRIBUNAL IN PARA 6,7 AND 8 HAS NARRATED THE SUBMISS IONS OF THE LD DR THAT DECISION OF HON. BOMBAY HIGH COURT IN TH E CASE OF SESA GOA, IS PER-INCURIUM IN VIEW OF THE FACT THA T THE BINDING DECISION OF HON. SUPREME COURT IN THE CASE OF K SRI NIVASAN HAS NOT BEEN CONSIDERED. THIS ASPECT HAS NOT BEEN DEAL T WITH BY THE TRIBUNAL WHILE DECIDING THE ISSUE IN FAVOR OF ASSES SEE. THIS IS A MISTAKE APPARENT FROM RECORD AND THUS PRAYED THAT T HE ORDER MAY BE RECTIFIED OR RECALLED. IN DEFENSE OF HIS AR GUMENTS, THE LD. D.R. RELIED ON THE FOLLOWING DECISIONS NAMELY; 1. CIT VS. MITHALAL ASHOK KUMAR (1987) 158 ITR 758 (MP) 2. INCOME TAX OFFICER VS. INCOME TAX APPELLATE TRIB UNAL (1965) 58 ITR 634 WHEREIN RATIO IS THAT CON MA NO.15/M/2021 & ORS [ARISING OUT OF IT(TP)A NO.794/M/2018] & ORS M/S. TATA CONSULTANCY SERVICES LTD. 5 CONSIDERATION OF MATERIAL AND ARGUMENT OF THE ASSESSEE CONSTITUTE A MISTAKE APPARENT FROM RECORD. THE LD. D.R. HAS ALSO FILED DETAILED WRITTEN SUBMIS SION POINTING OUT THAT THE VARIOUS PARAS IN THE DECISION OF THE C O-ORDINATE BENCH OF THE TRIBUNAL WHEREIN THE ARGUMENTS OF THE REVENUE HAVE NOT BEEN CONSIDERED. THEREFORE THE LD. DR PRAY ED BEFORE THE BENCH THAT TO THAT EXTENT ORDER OF THE TRIBUNAL IS WRONG AND CONTAIN PATENT MISTAKES AND MAY KINDLY BE RECTIFIED . 4. THE LD SENIOR COUNSEL FOR THE ASSESSEE ARGUED IN DETAIL DEFENDING THE ORDER PASSED BY THE COORDINATE BENCH POINTING OUT THAT EACH AND EVERY ARGUMENTS AS PUT FORWARD BY THE REVENUE HAS BEEN DULY CONSIDERED IN THE ORDER BY SPECIFICAL LY MENTIONING THE PARAS BY TAKING THE BENCH THROUGH THE IMPUGNED ORDER. THE LD. COUNSEL OF THE ASSESSEE ALSO FILED POINTWISE RE PLY TO THE WRITTEN SUBMISSIONS FILED BY THE REVENUE. THE LD AR FURTHER SUBMITTED THAT IT IS NOT NECESSARY THAT ALL THE WRI TTEN SUBMISSIONS FILED BY THE REVENUE MUST BE REPRODUCED IN THE ORDER BUT CONSIDERING AND DEALING WITH THE SAME IS SUFFICE . THE LD AR ALSO STATED THAT THE COORDINATE BENCH FOLLOWE D THE EARLIER YEAR ORDER IN ASSESSEES OWN CASE A.Y. 2008-09 AND ALSO THE DECISION OF HONBLE BOMBAY HIGH COURT. THE LD COUNS EL ALSO STATED THAT THE CASE LAWS AS RELIED BY THE REVENUE IN SUPPORT OF RECTIFICATION ARE NOT APPLICABLE AS NONE OF THE ARGUMENTS/SUBMISSIONS WERE OVERLOOKED AND LEFT OUT WHILE PASSING THE ORDER. FOR THE SAKE OF CONVENIENCE THE WRITTEN SUBMISSIONS FILED BY THE ASSESSEE ARE REPRODUCED BE LOW: 1) MA NOS. 15 & 17 OF 2021 OF THE DEPARTMENT CONSIST O F SIMILAR GROUNDS FOR AYS 2010-11 AND 2008-09 RESPECTIVELY. IN THE COMBINED T RIBUNAL ORDER DATED 18 TH AUGUST 2020, APPEALS RELATED TO AY 2010-11 HAVE BEE N TAKEN UP FIRST AS THE LEAD MA NO.15/M/2021 & ORS [ARISING OUT OF IT(TP)A NO.794/M/2018] & ORS M/S. TATA CONSULTANCY SERVICES LTD. 6 CASE. THEREFORE, MA NO. 15/2021 IS TAKEN UP FIRST H EREINBELOW. WE ALSO DEAL WITH ISSUES IN SEQUENCE AS DEALT WITH BY THIS HONB LE TRIBUNAL IN ITS ORDER. 2) THE DEPARTMENT IN ITS MA (15/2021) HAS ALLEGED MIST AKES APPARENT IN THE ORDER OF THIS TRIBUNAL ON THE ERRONEOUS PREMISE THAT ITS ORAL AND WRITTEN SUBMISSION HAVE NOT BEEN CONSIDERED WHILE DEALING WITH THREE I SSUES NAMELY; A) ADDITIONAL GROUND OF APPEAL FILED BY THE ASSESSEE B) DISALLOWANCE OF STATE TAXES PAID OVERSEAS TO THE LO CAL / STATE PROVINCIAL AUTHORITIES C) FOREIGN TAX CREDIT AS PER THE PROVISIONS OF SECTION 90(1)(A)(II) OF THE ACT 3) IT IS MOST RESPECTFULLY SUBMITTED THAT THE ABOVE AS SERTION OF THE DEPARTMENT IS FACTUALLY INCORRECT AS BOTH PARTIES WERE HEARD AT L ENGTH AT THE TIME OF HEARING BY THIS HONBLE TRIBUNAL. DEPARTMENT FILED A DETAIL ED WRITTEN SUBMISSIONS AND THE ASSESSEE THEREAFTER FILED POINT BY POINT REBUTT AL TO EVERY ARGUMENT OF THE DEPARTMENT. IN FACT, THE ORDER OF THE TRIBUNAL AT S EVERAL PLACES REFERS TO AND DEALS WITH THE SUBMISSIONS OF THE DEPARTMENT AND TH E REBUTTAL BY THE ASSESSEE. 4) IT IS MOST HUMBLY SUBMITTED THAT THIS TRIBUNAL IN I TS ORDER HAS DISCUSSED AND ANALYSED THE ADDITIONAL GROUND OF THE ASSESSEE AS T HE FIRST ISSUE AND IN DETAIL BEFORE ADJUDICATING IN FAVOUR OF THE ASSESSEE. THE DISCUSSION ON THE ADDITIONAL GROUND IN SPECIFIC STARTS AT PARAGRAPH 5 AT PAGE 10 OF THE TRIBUNALS ORDER WHEREIN THE ADDITIONAL GROUND BEING THE PURE LEGAL ISSUE WAS RAISED IN LIGHT OF VARIOUS JUDGEMENTS INCLUDING OF THE JURISDICTIONAL HIGH COURT AND THIS TRIBUNAL. AT PARAGRAPHS 6 & 7 ON PAGE 11 OF THE TRIBUNALS OR DER, THE TRIBUNAL NOTES THE DETAILED SUBMISSIONS OF THE DEPARTMENT. IN PARAGRAP H 8 ON PAGE 12 OF THE TRIBUNALS ORDER, ASSESSEES REJOINDER HAS BEEN NOT ED. FINALLY, THIS HONBLE TRIBUNAL IN PARAGRAPHS 9 & 10 ON PAGE 14 OF ITS ORD ER AFTER CONSIDERING SUBMISSIONS OF BOTH SIDES CONCLUDED BY FOLLOWING TH E JURISDICTIONAL HIGH COURTS JUDGEMENT IN SESA GOA LTD [(2020) 117 TAXMANN.COM 9 6 (BOM)]. FURTHER, THIS HONBLE TRIBUNAL IN PARAGRAPH 10 OF ITS ORDER SPECI FICALLY NOTES THAT THE OBJECTIONS RAISED BY LD DR FOR THE REVENUE THAT THE DECISION OF BOMBAY HIGH COURT IS PER-INCURIUM, IS NOT TENABLE AS THE DECISI ON OF HONBLE SUPREME COURT IN SMITH KLINE & FRENCH (INDIA) LTD. HAS ALSO BEEN SPE CIFICALLY CONSIDERED BY HONBLE RAJASTHAN HIGH COURT IN CHAMBAL FERTILIZER (SUPRA). THE ASSESSEE IN COURSE OF THE HEARING AND IN ITS REBUTTAL TO DEPARTMENTS WRITTEN SUBMISSIONS HIGHLIGHTED THE JURISDICTIONAL HIGH COURTS JUDGEMENT IN CIT V. LAT A MANGESHKAR MEDICAL FOUNDATION IN NOTICE OF MOTION NOS. 1779 & 1783 OF 2017 IN ITA (LODG) NOS. 2320 & 2319 OF 2017 WHEREIN THE HONBLE BOMBAY HIGH COURT HAS HELD THAT AS A LOWER COURT IT IS NOT OPEN FOR THEM TO DISREGARD TH E DECISION OF THE APEX COURT BEING THE HIGHER COURT AS PER INCURIAM.THIS HONBLE TRIBUNAL BEING A COURT SUBORDINATE TO THE JURISDICTIONAL HIGH COURT OF BOM BAY IS BOUND BY ITS JUDGEMENTS.HENCE, THERE IS NO MISTAKE APPARENT IN T HE ORDER OF THIS TRIBUNAL WHERE IT HAS FOLLOWED THE BINDING JUDGEMENT OF ITS JURISDICTIONAL HIGH COURT AND HAS ALSO CONSIDERED SUBMISSIONS OF THE DEPARTMENT B EFORE ADJUDICATING THE ISSUE IN FAVOUR OF THE ASSESSEE. 5) BEFORE PROCEEDING FURTHER, IT IS MOST RESPECTFULLY HIGHLIGHTED AT THE OUTSET THAT THIS HONBLE TRIBUNAL IN PARAGRAPH 11 ON PAGE 15OF ITS ORDER NOTES THE UPFRONT ASSERTIONS OF THE ASSESSEE AND ALSO THE DETAILED WR ITTEN SUBMISSIONS FILED BY THE DEPARTMENT. MA NO.15/M/2021 & ORS [ARISING OUT OF IT(TP)A NO.794/M/2018] & ORS M/S. TATA CONSULTANCY SERVICES LTD. 7 6) THE DEPARTMENT IN ITS MA HAS ALSO ALLEGED THAT THER E IS MISTAKE APPARENT FROM RECORD AS THIS HONBLE TRIBUNAL WHILE DEALING WITH GROUND (1) OF ASSESSEES APPEAL ON DISALLOWANCE OF STATE TAXES PAID OVERSEAS TO THE LOCAL / STATE PROVINCIAL AUTHORITIES (STATE TAXES) OF INR 1,73,23 ,854 HAS NOT DISCUSSED THE ORAL AND WRITTEN SUBMISSIONS OF DEPARTMENT. 7) THE ASSESSEE HEREIN MOST RESPECTFULLY SUBMITS THAT THIS HONBLE TRIBUNAL AT THE OUTSET (IN PARAGRAPH 11) TAKES NOTE OF THE DETAILED WRITTEN SUBMISSIONS FILED BY THE DEPARTMENT. MA AND THE WRITTEN SUBMISSIONS FILE D BY THE DEPARTMENT ITSELF NOTES THAT HONBLE ITAT IN ASSESSEES OWN CASE FOR AY 2009-10 HAS DECIDED IDENTICAL GROUNDS. FURTHER, IN PARAGRAPH 14 OF THE ORDER, THE TRIBUNAL NOTES THAT SUBMISSIONS OF BOTH PARTIES HAVE BEEN CONSIDERED AN D ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR AY 2009-10 ON IDENTICAL GRO UNDS FOLLOWING THE BINDING JUDGEMENT OF THE JURISDICTIONAL HIGH COURT OF BOMBA Y IN CASE OF RELIANCE INFRASTRUCTURE LTD. NO ERROR / MISTAKE CAN BE FOUND IN THE ORDER OF TRIBUNAL IF IT HAS FOLLOWED THE BINDING JUDGEMENT OF THE JURISDICT IONAL HIGH COURT AND ITS COORDINATE BENCH IN ASSESSEES OWN CASE FOR AY 2009 -10. THIS HONBLE TRIBUNAL ON PAGES 16-18 HAS REPRODUCES THE RELEVANT DISCUSSI ONS ON THE ISSUE INCLUDING THE JURISDICTIONAL HIGH COURTS JUDGEMENT AND CONCL UDES IN FAVOUR OF THE ASSESSEE IN PARAGRAPH 15 BY FOLLOWING THE AFOREMENT IONED BINDING JUDGEMENTS.FURTHER, THE DEPARTMENT IN ITS WRITTEN S UBMISSIONS FILED AT THE TIME OF HEARING OF APPEALS, AT PAGE 18 REFERS TO THE CIR CULAR NO. 14/2006 OF CBDT WHICH HAS BEEN DEALT WITH BY THE HONBLE BOMBAY HIG H COURT IN RELIANCE INFRASTRUCTURE, IN GREAT DETAIL. 8) THEREAFTER, DEPARTMENT IN ITS MA HAS SIMILARLY ALLE GED THAT THIS TRIBUNAL WHILE DEALING WITH GROUND (3) OF THE ASSESSEES APPEAL ON FOREIGN TAX CREDIT AS PER THE PROVISIONS OF SECTION 90(1)(A)(II) OF THE ACT HAS N OT DISCUSSED THE ORAL AND WRITTEN SUBMISSIONS OF DEPARTMENT. 9) IT IS MOST RESPECTFULLY SUBMITTED THAT THIS TRIBUNA L IN PARAGRAPHS 20 AND 21 AT PAGES 21 AND 22 OF THE TRIBUNALS ORDER HAS REPEATE DLY NOTED, DISCUSSED AND CONSIDERED DEPARTMENTS SUBMISSION ON JUDGEMENTS IN CASES OF YOKOGAWA AND WIPRO OF THE KARNATAKA HIGH COURT. MA FILED BY THE DEPARTMENT ITSELF PARTIALLY REPRODUCES PARAGRAPH 21 AND 22 OF THE TRIBUNALS OR DER INTERALIA DISCUSSING DEPARTMENTS WRITTEN SUBMISSIONS AND FURTHER TAKING NOTE OF TRIBUNALS RULING IN ASSESSEES OWN CASE FOR AY 2009-10 HAS DECIDING IDE NTICAL GROUNDS. DEPARTMENT IN ITS WRITTEN SUBMISSIONS ON PAGES 21 AND 22 HAD T AKEN CONTENTIONS RELATED TO JUDGEMENTS OF KARNATAKA HIGH COURT IN WIPRO AND YOK OGAWA, WHICH HAS BEEN FOUND TO BE FALSE BY THIS TRIBUNAL IN PARAGRAPHS 20 AND 21 OF ITS ORDER.THIS TRIBUNAL FINALLY FOLLOWED THE BINDING COORDINATE BE NCH RULING ON IDENTICAL ISSUE IN ASSESSEES OWN CASE FOR AY 2009-10 IN PARAGRAPHS 22 AND 23 AT PAGES 22 TO 25 OF ITS ORDER. HENCE, THERE IS NO MISTAKE APPAREN T IN THE ORDER OF THIS TRIBUNAL WHERE IT HAS FOLLOWED THE BINDING COORDINATE BENCH RULING IN ASSESSEES OWN CASE AND CONSIDERED SUBMISSIONS OF THE DEPARTMENT B EFORE ADJUDICATING THE ISSUE IN FAVOUR OF THE ASSESSEE. 10) GROUNDS TAKEN IN MA 17 / 2021 FOR AY 2008-09 FILED BY THE DEPARTMENT ARE IDENTICAL TO MA 15 / 2021 DISCUSSED ABOVE AND THERE FORE AFORESAID SUBMISSIONS OF THE ASSESSEE SHALL BE CONSIDERED FOR MA 17 / 202 1 AS WELL. THE ONLY ADDITIONAL SUBMISSION IN MA 17 / 2021 TO BE NOTED B Y THIS TRIBUNAL IS THAT GROUND NO. 5 OF THE ASSESSEES APPEAL IN AY 2008-09 WAS NOT EVEN ADJUDICATED BY THIS TRIBUNAL FOR WHICH THE ASSESSEE HAS SEPARAT ELY FILED IT MA 59 / 2021 MA NO.15/M/2021 & ORS [ARISING OUT OF IT(TP)A NO.794/M/2018] & ORS M/S. TATA CONSULTANCY SERVICES LTD. 8 (DEALT WITH SEPARATELY IN A SEPARATEWRITTEN SUBMISS IONS FILED). THEREFORE, MA 17/2021 OF THE DEPARTMENT SO FAR AS IT ALLEGES MIST AKE IN ADJUDICATION OF ASSESSEES APPEAL ON FOREIGN TAX CREDIT IS FACTUALL Y WRONG AND A MERELY COPY PASTED FROM ITS MA 15/2021 RELATED TO AY 2010-11 AN D OUGHT TO BE DISMISSED AT THE OUTSET. I. DEPARTMENTS LETTERS DATED 2 ND MARCH 2021 ENCLOSING ADDITIONAL GROUNDS 11) FURTHER, DEPARTMENT HAS FILED TWO ADDITIONAL LETTER S, BOTH DATED 2 ND MARCH 2021 WHICH DOES NOT EVEN ALLEGE ANY MISTAKE APPARENT IN THE ORDER OF THE TRIBUNAL AND MERELY MAKES ARGUMENTS / SUBMISSIONS RELATED TO TRANSFER PRICING ISSUES ALREADY ADJUDICATED BY THE TRIBUNAL IN ITS ORDER DA TED 18.8.2020. IT OUGHT TO BE NOTED THAT CIT(A) WHILE DECIDING THE ISSUES FOLLOWE D ITS OWN ORDER IN AY 2009-10 WHICH THEREAFTER HAS BEEN ADJUDICATED AND / OR CONF IRMED BY THIS TRIBUNAL. THIS TRIBUNAL IN AY 2010-11 AND 2008-09 HAS FOLLOWED ITS DETAILED ORDER FOR AY 2009- 10 IN ASSESSEES OWN CASE. A) IT OUGHT TO BE NOTED THAT ON THE ISSUE OF PROVISION OF SOFTWARE, TECHNICAL AND CONSULTANCY SERVICES, THE DEPARTMENT IS ATTEMPT ING TO REARGUE THE ENTIRE CASE WHICH SURPRISINGLY INCLUDES ADDITIONAL GROUNDS RELATED TO COMPARABLES IN THREE DIFFERENT GEOGRAPHIC REGIONS W HICH WAS NOT EVEN RAISED AS A GROUND OF APPEAL BY THE DEPARTMENT BEFO RE THIS TRIBUNAL. IT MAY BE NOTED THAT THIS TRIBUNAL IN LAST 5 LINES ON PAGE 38 AND ON PAGE 39 OF ITS ORDER TAKEN NOTE OF THE ARGUMENTS AND SUBMIS SIONS BEFORE THE TRIBUNAL. THE LIMITED ISSUE ARGUED BEFORE THE TRIBU NAL WAS ON THE MANNER OF COMPUTATION OF PLI AND TREATMENT OF PASS-THROUGH COST BOTH OF WHICH WAS ARGUED AT LENGTH IN AY 2009-10 AND ADJUDICATED IN FAVOUR OF THE ASSESSEE BY ORDER OF THIS TRIBUNAL WITH A DETAILED REASONING.IT MAY FURTHER BE NOTED THAT CIT(A) IN ITS ORDER WHILE ADJ UDICATING THE ISSUE EVEN ALLOWED TPO TO VERIFY COMPARABLE MARGINS AND T HE LEARNED TPO WHILE GIVING EFFECT TO CIT(A)S ORDER CALLED FOR FI NANCIALS (10K REPORTS) OF THE COMPARABLES BEFORE FINALIZING THE BENCHMARKING FOR DIFFERENT GEOGRAPHICAL REGIONS CONSIDERING ASSESSEES AES AS TESTED PARTY AS HELD BY TPO HIMSELF.IN PARAGRAPH 44 FROM PAGE 39 TO 43 O F ITS ORDER, THIS TRIBUNAL AFTER CONSIDERING THE RIVAL SUBMISSIONS OF THE PARTIES, FOLLOWS THE DETAILED ORDER ON THE IDENTICAL ISSUE FROM PAGE S 40 43.FINALLY, THE TRIBUNAL NOTES IN PARAGRAPH 45 ON PAGE 43, THAT CON TENTIONS RAISED BY DEPARTMENT HAS BEEN CONSIDERED AND NO VARIATION IN FACTS NOR ANY CONTRARY LAW IS BROUGHT TO THE TRIBUNALS NOTICE. H ENCE, THERE IS NO MISTAKE APPARENT IN THE ORDER OF THIS TRIBUNAL WHER E IT HAS FOLLOWED THE BINDING COORDINATE BENCH RULING IN ASSESSEES OWN C ASE AND CONSIDERED SUBMISSIONS OF THE DEPARTMENT BEFORE ADJUDICATING T HE ISSUE IN FAVOUR OF THE ASSESSEE. B) ANOTHER ADDITIONAL GROUND OF THE DEPARTMENT IN THES E LETTERS IS RELATED TO ORDER OF THIS TRIBUNAL FOLLOWING THE JURISDICTIO NAL BOMBAY HIGH COURT IN EVEREST KANTO AND ITS OWN RULING IN AY 2009-10 A DOPTING THE GUARANTEE COMMISSION RATE OF 0.5%. IT OUGHT TO BE N OTED THAT AGAIN NO MISTAKE APPARENT IN THE ORDER HAS BEEN POINTED OUT AND MERELY ADDITIONAL GROUNDS HAVE BEEN FILED IN AN ATTEMPT TO REARGUE THE ENTIRE ISSUE. THE TRIBUNAL IN ITS ORDER AT PAGES 44 TO 48 HAS CONSIDERED THIS ISSUE IN DETAIL. THE TRIBUNAL SPECIFICALLY NOTES THE DEPA RTMENTS SUBMISSION IN MA NO.15/M/2021 & ORS [ARISING OUT OF IT(TP)A NO.794/M/2018] & ORS M/S. TATA CONSULTANCY SERVICES LTD. 9 PARAGRAPH 47 ON PAGES 44 AND 45 AND ASSESSEES RELI ANCE ON THE BOMBAY HIGH COURT JUDGEMENT IN EVEREST KANTO AND IN ITS OW N CASE IN PARAGRAPH 48. THEREAFTER, THE TRIBUNAL AFTER CONSIDERING RIVA L SUBMISSIONS IN PARAGRAPHS 49 AND 50 FOLLOWS IT OWN ORDER IN AY 200 8-09 BASED ON BINDING JURISDICTIONAL HIGH COURTS DECISION IN THE CASE OF EVEREST KANTO. HENCE, THERE IS NO MISTAKE APPARENT IN THE ORDER OF THIS TRIBUNAL WHERE IT HAS FOLLOWED THE BINDING JUDGEMENT OF ITS JURISDICT IONAL HIGH COURT AND HAS ALSO CONSIDERED SUBMISSIONS OF THE DEPARTMENT B EFORE ADJUDICATING THE ISSUE IN FAVOUR OF THE ASSESSEE. C) IT MAY ALSO BE NOTED THAT THESE LETTERS HAVE BEEN F ILED ON 2 ND MARCH 2021 BEYOND THE PERIOD OF 6 MONTHS FROM END OF THE MONTH (AUGUST, 2020) IN WHICH THE ORDER WAS PASSED AND THEREFORE I S BARRED BY LIMITATION AND OUT TO BE REJECTED ON THAT GROUND IT SELF. D) IT IS SUBMITTED THAT THERE IS NO PROVISION IN LAW T O FILE / SUBMIT ADDITIONAL GROUNDS OF APPEAL IN THE MISCELLANEOUS APPLICATION AND THEREFORE THESE ADDITIONAL LETTERS ENCLOSING ADDITIONAL GROUNDS MAY BE REJECTED / IGNORED. 1. DEPARTMENTS MA NO. 66 / 2021 (IN RELATION TO DEPARTMENTS APPEAL IN ITA 1207 / 2018 FOR AY 2010-11) AND 2. DEPARTMENTS MA NO. 65 / 2021 (IN RELATION TO DEPARTMENTS APPEAL IN ITA 3746 / 2016 FOR AY 2008-09) 12) MA NOS. 66 & 65 OF 2021 (FILED ON 26 TH FEB 2021) OF THE DEPARTMENT CONSIST OF SIMILAR GROUNDS FOR AYS 2010-11 AND 2008-09 RESPECT IVELY. IN THE COMBINED ORDER OF THIS TRIBUNAL, AY 2010-11 HAS BEEN TAKEN U P FIRST. THEREFORE, MA NO. 66/2021 IS TAKEN UP FIRST HEREINBELOW. IT MAY FURTH ER BE NOTED THAT GROUNDS TAKEN IN THESE MAS ARE IDENTICAL TO ADDITIONAL GROU NDS TAKEN VIDE LETTERS DATED 2 ND MARCH 2021 REFERRED TO IN PARAGRAPH 11 ABOVE AND T HEREFORE THE ASSESSEE HEREIN AT THE COST OF REPETITION REITERATES THE ABO VE SUBMISSIONS AS BELOW. 13) ON THE ISSUE OF PROVISION OF SOFTWARE, TECHNICAL AN D CONSULTANCY SERVICES, THE DEPARTMENT IS ATTEMPTING TO REARGUE THE ENTIRE CASE WHICH SURPRISINGLY INCLUDES CONTENTIONS RELATED TO COMPARABLES IN THREE DIFFERE NT GEOGRAPHIC REGIONS WHICH WAS NOT EVEN RAISED AS A GROUND OF APPEAL BY THE DE PARTMENT BEFORE THIS TRIBUNAL. IT MAY BE NOTED THAT THIS TRIBUNAL IN LAS T 5 LINES ON PAGE 38 AND ON PAGE 39 OF ITS ORDER TAKEN NOTE OF THE ARGUMENTS AND SUB MISSIONS BEFORE THE TRIBUNAL. THE LIMITED ISSUE ARGUED BEFORE THE TRIBU NAL WAS ON THE MANNER OF COMPUTATION OF PLI AND TREATMENT OF PASS-THROUGH CO ST BOTH OF WHICH WAS ARGUED AT LENGTH IN AY 2009-10 AND ADJUDICATED IN F AVOUR OF THE ASSESSEE BY ORDER OF THIS TRIBUNAL WITH A DETAILED REASONING.TH E ARGUMENT OF THE DEPARTMENT IN PARAGRAPHS 1.2, 1.3 & 1.4 OF MA REGAR DING PASS THROUGH COST, COMPUTATION OF PLI AND VALUE ADDITION BY THE ASSESS EE WAS ARGUED AT LENGTH BEFORE THE TRIBUNAL AND CIT(A) AND IS IN FACT CONTR ARY TO FINDING OF FACT BY CIT(A) AND THE TRIBUNAL IN AY 2009-10 FURTHER FOLLOWED IN AYS 2010-11 AND 2008-09. ON THE ISSUE OF MANNER OF COMPUTATION OF PLI, THE ORDE R OF THIS TRIBUNAL IN AY 2009- 10 SPECIFICALLY REFERS TO VARIOUS RULINGS BY COORDI NATE BENCHES OF THIS TRIBUNAL BEFORE HOLDING IN FAVOUR OF THE ASSESSEE. IT MAY FU RTHER BE NOTED THAT CIT(A) IN ITS ORDER WHILE ADJUDICATING THE ISSUE EVEN ALLOWED TPO TO VERIFY COMPARABLE MARGINS AND THE LEARNED TPO WHILE GIVING EFFECT TO CIT(A)S ORDER CALLED FOR MA NO.15/M/2021 & ORS [ARISING OUT OF IT(TP)A NO.794/M/2018] & ORS M/S. TATA CONSULTANCY SERVICES LTD. 10 FINANCIALS (10K REPORTS) OF THE COMPARABLES BEFORE FINALIZING THE BENCHMARKING FOR DIFFERENT GEOGRAPHICAL REGIONS CONSIDERING ASSE SSEES AES AS TESTED PARTY AS HELD BY TPO HIMSELF. IN PARAGRAPH 44 OF ITS ORDER, THIS TRIBUNAL AFTER CONSIDERING THE RIVAL SUBMISSIONS OF THE PARTIES, FOLLOWS THE D ETAILED ORDER ON THE IDENTICAL ISSUE FROM PAGES 40 43. FINALLY, THE TRIBUNAL NOT ES IN PARAGRAPH 45 ON PAGE 43 THAT CONTENTIONS RAISED BY DEPARTMENT HAS BEEN CONS IDERED AND NO VARIATION IN FACTS NOR ANY CONTRARY LAW IS BROUGHT TO THE TRIBUN ALS NOTICE. HENCE, THERE IS NO MISTAKE APPARENT IN THE ORDER OF THIS TRIBUNAL WHER E IT HAS FOLLOWED THE BINDING COORDINATE BENCH RULING IN ASSESSEES OWN CASE AND CONSIDERED SUBMISSIONS OF THE DEPARTMENT BEFORE ADJUDICATING THE ISSUE IN FAV OUR OF THE ASSESSEE. 14) ANOTHER CONTENTION OF THE DEPARTMENT IN THESE MAS, IS RELATED TO ORDER OF THIS TRIBUNAL ADOPTING THE RATE OF GUARANTEE COMMISSION TO BE 0.5% FOLLOWING THE JURISDICTIONAL BOMBAY HIGH COURT IN EVEREST KANTO A ND ITS OWN RULING IN AY 2009- 10. IT OUGHT TO BE NOTED THAT NO MISTAKE APPARENT I N THE ORDER HAS BEEN POINTED OUT AND MA APPEARS TO BE AN ATTEMPT TO REARGUE THE ENTIRE ISSUE. THE TRIBUNAL IN ITS ORDER AT PAGES 44 TO 48 HAS CONSIDERED THIS ISSUE IN DETAIL. THE TRIBUNAL SPECIFICALLY NOTES THE DEPARTMENTS SUBMISSION IN P ARAGRAPH 47 ON PAGES 44 AND 45 AND ASSESSEES RELIANCE ON THE BOMBAY HIGH COURT JUDGEMENT IN EVEREST KANTO AND IN ITS OWN CASE IN PARAGRAPH 48. THEREAFT ER, THE TRIBUNAL AFTER CONSIDERING RIVAL SUBMISSIONS IN PARAGRAPHS 49 AND 50 FOLLOWS IT OWN ORDER IN AY 2008-09 BASED ON BINDING JURISDICTIONAL HIGH COURT S DECISION IN THE CASE OF EVEREST KANTO. HENCE, THERE IS NO MISTAKE APPARENT IN THE ORDER OF THIS TRIBUNAL WHERE IT HAS FOLLOWED THE BINDING JUDGEMENT OF ITS JURISDICTIONAL HIGH COURT AND HAS ALSO CONSIDERED SUBMISSIONS OF THE DEPARTMENT B EFORE ADJUDICATING THE ISSUE IN FAVOUR OF THE ASSESSEE. FINALLY, THE LD AR SUBMITTED THAT SINCE THE ORDER P ASSED BY THE TRIBUNAL IS IN ACCORDANCE WITH LAW AND THEREFOR E THE MISCELLANEOUS APPLICATIONS OF THE REVENUE MAY BE DI SMISSED. 5. AFTER HEARING BOTH THE PARTIES AND PERUSING THE MATERIAL ON RECORD, WE FIND THAT THE CO-ORDINATE BENCH OF THE T RIBUNAL HAS PASSED THE ORDER BY FOLLOWING THE DECISION OF THE C O-ORDINATE BENCH OF THE TRIBUNAL IN ASSESSEES OWN CASE IN THE EARLIER ORDER AND ALSO THE JURISDICTIONAL HIGH COURT. IT HAS BEE N MENTIONED BY THE CO-ORDINATE BENCH OF THE TRIBUNAL TIME AND A GAIN THAT REVENUE HAS FILED WRITTEN SUBMISSIONS WHICH HAVE BE EN CONSIDERED. IN OUR OPINION, IT IS NOT NECESSARY TO INCORPORATE EACH AND EVERY ARGUMENT OR WRITTEN SUBMISSION IN TH E ORDER ITSELF AND IT WOULD BE SUFFICE IF THE ARGUMENTS ARE CONSIDERED AND MA NO.15/M/2021 & ORS [ARISING OUT OF IT(TP)A NO.794/M/2018] & ORS M/S. TATA CONSULTANCY SERVICES LTD. 11 A VIEW IS TAKEN AFTER TAKING INTO CONSIDERATION THE CONTENTIONS OF THE REVENUE AS WELL AS THE ASSESSEE. THEREFORE, TH E CONTENTIONS OF THE REVENUE THAT ITS SUBMISSION DID NOT FIND PLA CE IN THE ORDER OF THE CO-ORDINATE BENCH OF THE TRIBUNAL IS W RONG AND AGAINST THE FACTS ON RECORD. ACCORDINGLY, WE ARE I NCLINED TO DISMISS THESE FOUR MISCELLANEOUS APPLICATIONS FILED BY THE REVENUE. 6. IN THE RESULT, ALL THE MISCELLANEOUS APPLICATION S FILED BY THE REVENUE ARE DISMISSED. MA NO.59/M/2021, A.Y 2008-09 (ASSESSEES MA) 7. BY VIRTUE OF THIS MISCELLANEOUS APPLICATION THE ASSESSEE SEEKS THE RECTIFICATION OF ORDER PASSED BY THE TRIB UNAL IN ITA NO.3263/M/2017 A.Y. 2008-09 AS GROUND NO.4 & 5 OF T HE ASSESSEES APPEAL HAS BEEN LEFT OUT FROM BEING ADJU DICATED INADVERTENTLY. 8. THE LD. A.R. SUBMITTED BEFORE THE BENCH THAT A C OMBINED ORDER FOR A.Y. 2010.11 AND A.Y. 2008-09 HAS BEEN PA SSED IN ITA NO.3263/M/2017 & ORS. DATED 18.08.2020. WHILE PASS ING THE SAID ORDER THE ITA NO.794/M/2018 A.Y. 2010-11 HAS B EEN TAKEN AS LEAD CASE. THE LD. A.R. POINTED OUT THAT THE GR OUND NO.4 & 5 RAISED IN A.Y. 2008-09 ARE SIMILAR TO GROUND NO.2 & 3 IN A.Y. 2010-11 WHICH HAS BEEN ADJUDICATED VIDE PARA 18, 22 & 23 RESPECTIVELY. THE LD. A.R. SUBMITTED THAT THE GROU ND NO.4 ARE IN RESPECT OF TREATING THE EXPERIENCE CERTAINTY CAMPAI GN EXPENSES AMOUNTING TO RS.27,94,44,762/- AS INTANGIBLE ASSET INSTEAD OF REVENUE EXPENDITURE WHEREAS GROUND NO.5 THE ISSUE I S IN RESPECT OF NOT ALLOWING FOREIGN TAX CREDIT AS PER THE PROVI SIONS OF SECTION MA NO.15/M/2021 & ORS [ARISING OUT OF IT(TP)A NO.794/M/2018] & ORS M/S. TATA CONSULTANCY SERVICES LTD. 12 90(1)(A)(II) OF THE ACT. THE LD. A.R. THEREFORE PR AYED THAT THE ORDER PASSED FOR A.Y. 2008-09 MAY KINDLY BE RECTIFI ED BY GIVING SIMILAR DIRECTION AS HAVE BEEN GIVEN IN A.Y. 2010-1 1. 9. THE LD. D.R., ON THE OTHER HAND, FAIRLY AGREED T HAT THESE GROUNDS WERE NOT ADJUDICATED IN A.Y. 2008-09 WHEREA S SIMILAR GROUNDS WERE DISPOSED OF IN A.Y. 2010-11. 10. WE HAVE HEARD THE RIVAL PARTIES AND PERUSED THE MATERIAL ON RECORD INCLUDING THE IMPUGNED ORDER PASSED BY TH E CO- ORDINATE BENCH IN A.Y. 2008-09 AND OBSERVED THAT GR OUND NOS.4 & 5 WERE LEFT FROM ADJUDICATING. THE GROUND NOS.4 & 5 ARE REPRODUCED AS UNDER: 4. ADVERTISEMENT EXPENDITURE 4.1 ON FACTS AND IN CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN TREATING THE ADVERTISEMENT EXPENDITURE INCURRED BY THE APPELLANT IN RESPECT OF EXPERIENCE CERTAINTY CAMPAIGN AMOUNTING TO RS.27,94 ,45,762/- AS AN INTANGIBLE ASSET INSTEAD OF TREATING IT AS REVENUE EXPENDITURE . 5. FOREIGN TAX CREDIT (DOUBLE TAX RELIEF) AS PER TH E PROVISIONS OF SECTION 90(1)(A)(II) OF THE ACT 5.1 ON FACTS AND IN CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD. CIT(A) ERRED IN NOT ALLOWING FOREIGN TAX RELIEF AS PER THE PROVISIO NS OF SECTION 90(1)(A)(II) OF THE ACT READ WITH PROVISIONS OF THE APPLICABLE DOUBLE TAX A VOIDANCE AGREEMENTS, FOR INCOME TAXES PAID IN OVERSEAS JURISDICTIONS IN RELA TION TO INCOME ELIGIBLE FOR DEDUCTION UNDER SECTION 10A/10AA OF THE ACT IN INDI A. 11. AFTER PERUSING THE DECISION OF THE CO-ORDINATE BENCH ON GROUND NO.2 IN A.Y. 2010-11, WE OBSERVE THAT THE SI MILAR ISSUE HAS BEEN DECIDED BY THE CO-ORDINATE BENCH VIDE PARA 18 OF THE SAID ORDER WHEREIN THE CO-ORDINATE BENCH HAS STATIS TICALLY ALLOWED THE APPEAL OF THE ASSESSEE ON THIS GROUND B Y FOLLOWING THE ORDER OF THE CO-ORDINATE BENCH IN ASSESSEES OW N CASE IN A.Y. 2009-10. WE THEREFORE RESPECTFULLY FOLLOWING THE S AME, RESTORE IT TO THE FILE OF THE AO WITH THE DIRECTION TO DECIDE THE SAME IN LINE MA NO.15/M/2021 & ORS [ARISING OUT OF IT(TP)A NO.794/M/2018] & ORS M/S. TATA CONSULTANCY SERVICES LTD. 13 WITH THE ORDER PASSED IN A.Y. 2010-11. THE GROUND IS ALLOWED FOR STATISTICAL PURPOSES. 12. AFTER PERUSING THE DECISION OF THE CO-ORDINATE BENCH ON GROUND NO.3 IN A.Y. 2010-11, WE OBSERVE THAT THE SI MILAR ISSUE HAS BEEN DECIDED BY THE CO-ORDINATE BENCH VIDE PARA 22 & 23 OF THE SAID ORDER WHEREIN THE CO-ORDINATE BENCH HAS AL LOWED THE APPEAL OF THE ASSESSEE ON THIS GROUND BY FOLLOWING THE ORDER OF THE CO-ORDINATE BENCH IN ASSESSEES OWN CASE IN A.Y . 2009-10. WE THEREFORE RESPECTFULLY FOLLOWING THE SAME, ALLOW THE GROUND NO.5 IN FAVOUR OF THE ASSESSEE. THE GROUND IS ALLO WED. 13. IN THE RESULT, ALL THE FOUR MISCELLANEOUS APPLI CATIONS OF THE REVENUE ARE DISMISSED AND THAT OF THE ASSESSEE IS A LLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 23.08.2021. SD/- SD/- ( PAVAN KUMAR GADALE) (RAJESH KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 23.08.2021. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORDER DY/ASS TT. REGISTRAR, ITAT, MUMBAI.