M/s Festo India Private Limited, Bangalore V. Deputy Commissioner of Income Tax, Circle 3(1)(1), Bangalore

MA 75/BANG/2020

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 4691 (ITAT-BANGALORE)
• Duration Of Justice: 4 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-10-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 01-06-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRIYADARSHI MISHRA
• Keywords: Transfer pricing; International transaction; Additional evidence
• Section: 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : BANGALORE BEFORE SHRI A.K GARODIA, ACCOUNTANT MEMBER AND SMT. BEENA PILLAI, JUDICIAL MEMBER M.P NOS.75 &76/BANG/2020 IT(TP)A NOS.969, 1028/BANG/2014 & 209/BANG/2015) ASSESSMENT YEAR : 2009-10 & 2010-11 M/S FESTO INDIA PVT. LTD., 237B, BOMMASANDRA INDUSTRIAL AREA, BENGALURU-560 099. PAN AAACF 2940 F VS. THE DY. COMMISSIONER OF INCOME- TAX, CIRCLE-3(1)(1) BENGALURU. APPELLANT RESPONDENT APPELLATE BY : SHRI NAGESHWAR RAO, ADVOCATE RESPONDENT BY : SHRI PRIYADARSHI MISHRA, JCIT DATE OF HEARING : 28-08-2020 DATE OF PRONOUNCEMENT : 13-10-2020 ORDER PER BEENA PILLAI, JUDICIAL MEMBER PRESENT MISCELLANEOUS PETITION HAS BEEN FILED BY ASSESSEE SEEKING TO RECTIFY FOLLOWING CERTAIN TYPOG RAPHIC MISTAKES APPARENT FROM RECORD IN COMMON ORDER PASSE D BY THIS TRIBUNAL DATED 21/11/2019. 1. LD.AR SUBMITTED THAT, WRONG GROUNDS HAVE BEEN REPRODUCED IN PAGE 4 IN IT(TP)A NO.969/BANG/2014 FO R ASSESSMENT YEAR 2009-10. PAGE 2 OF 14 M.P NOS.75 & 76/BANG/2020 WE HAVE PERUSED OUR RECORDS AND NOTE THAT SUBMISSIO NS BY LD.AR IS CORRECT. ACCORDINGLY, WE RECTIFY THE MISTA KE HEREWITH. HENCE FORTH, PAGE 4 SHALL BE READ AS UNDE R: 1. THE ORDER OF THE CIT (APPEALS), REVENUE, IS OP POSED TO LAW AND THE FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE CIT(A) ERRED IN DIRECTING THE TPO TO EXCLUDE RICO INDIA LTD AND ALERT FIRE PROTECTION SYSTEMS LTD FROM THE TPOS FIN AL LIST OF COMPARABLES FOR THE REASON THAT THE BUSINESSES OF T HESE COMPARABLES DONOT FALL WITHIN THE SAME SECTOR AS TH AT OF THE ASSESSEE, WITHOUT APPRECIATING THE FACT THAT ONCE A BUSINESS FALLS IN A PARTICULAR SECTOR ON A BROAD CRITERIA FURTHER DIS SECTION OF THE SECTOR IS NOT CONSIDERED NECESSARY AND THAT THESE COMPARAB LES SELECTED BY THE TPO HAVE PASSED THE QUALITATIVE AND QUANTITATIV E FILTERS APPLIED BY THE TPO. THE CIT (A) ERRED IN NOT APPRECIATING THE FACT THAT IF ANY FILTER OR CRITERIA APPLIED BY THE ASSESSEE IS ACCEPTED OR IF ANY FILTER OR CRITERIA APPLIED BY THE 'FPO IS RELAXED, THE ENTIRE ACCEPT / REJECT MATRIX CHANGES RESULTING IN A NEW SET OF COMPARABLES INCLU DING THOSE COMPARABLES WHICH ARE NEITHER TAKEN BY THE ASSESSEE OR THE TPO AND WHICH DO NOT FIND A PLACE IN THE ORDER UNDER SECTIO N 92CA. 4. FOR THESE AND SUCH OTHER GROUNDS THAT MAY BE URG ED AT THE TIME OF HEARING, IT IS HUMBLY PRAYED THAT THE ORDER OF THE CIT(A) BE REVERSED AND THAT OF THE ASSESSING OFFICER BE RESTORED. 5. THE APPELLANT CRAVES LEAVE TO ADD, TO ALTER, TO AMEND OR DELETE ANY OF THE GROUNDS THAT MAY BE URGED AT THE TIME OF HEA RING OF THE APPEAL. 2. LD.AR SUBMITTED THAT, WRONG GROUNDS HAVE BEEN REPRODUCED IN PAGE 8 IN CO NO.74/BANG/2017 FOR ASSESSMENT YEAR 2010-11. WE HAVE PERUSED OUR RECORDS AND NOTE THAT SUBMISSIO NS BY LD.AR IS CORRECT. ACCORDINGLY, WE RECTIFY THE MISTA KE HEREWITH. HENCE FORTH, GROUNDS UNDER CROSS OBJECTI ON REPRODUCED AT PAGE 8 SHALL BE READ AS UNDER: ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW: 1. THE LEARNED TPO/AO/DRP HAVE ERRED, IN LAW AND ON FACTS AND CIRCUMSTANCES OF THE CASE, BY REJECTING THE RESALE PRICE METHOD ('RPM') ADOPTED BY THE RESPONDENT AS THE MOST APPRO PRIATE METHOD FOR DETERMINING THE ARM'S LENGTH PRICE ('ALP') OF T HE IMPUGNED INTERNATIONAL TRANSACTION AND ADOPTING THE TRANSACT IONAL NET MARGIN METHOD ('TNMM') INSTEAD. PAGE 3 OF 14 M.P NOS.75 & 76/BANG/2020 2. WITHOUT PREJUDICE TO OUR CONTENTION THAT RPM SHO ULD BE ADPTED AS THE MOST APPROPRIATE METHOD, IN CASE YOUR HONOUR S CONSIDER TNMM TO BE THE MOST APPROPRIATE THEN THE ENTITY WID E NET MARGINS SHOULD BE CONSIDERED FOR THIS PURPOSE HAVING REGARD TO THE BUSINESS MODEL OF THE RESPONDENT WHICH IS INTEGRATED. 3. WITHOUT PREJUDICE TO OUR CONTENTION THAT RPM SHO ULD BE ADOPTED AS THE MOST APPROPRIATE METHOD, THE DRP/AOI TPO HAVE ERRED IN LAW AND IN FACTS BY ACCEPTING CERTAIN COMP ANIES, NAMELY 1) ALERT FIRE PROTECTION SYSTEMS PRIVATE LIMITED 2) GE MINI COMMUNICATIONS LIMITED AND 3) RICOH INDIA LIMITED B ASED ON UNREASONABLE COMPARABILITY CRITERIA. ADDITIONAL GROUND OF APPEAL IN CO NO.74/BANG/2017(2010-11) ADDITIONAL GROUND NO.4: IN ADDITION TO THE GROUNDS OF CROSS OBJECTIONS RAI SED IN FORM 36A FILED EARLIER BEFORE THE HON'BLE TRIBUNAL, AFTER GR OUND NUMBER 3, THE PETITIONER HEREBY WISHES TO INTRODUCE GROUND NUMBER 4 AS UNDER: 4. AS FACTS OF CASE AND APPLICABLE LAW REMAIN IDENT ICAL DURING PERIOD UNDER APPEAL AS IN YEAR RELATING TO W HICH ADVANCE PRICING AGREEMENT ('APA') WAS ENTERED INTO FOR SUBSEQUENTLY, APPROACH, BASIS ADOPTED AND CONCLUSIO N REACHED IN APA YEARS DESERVES TO BE CONSISTENTLY AP PLIED TO YEAR UNDER APPEAL. 3. WHILE PERUSING THE RECORDS VIS--VIS THE IMPUGNED ORDER, WE NOTE THAT THERE HAVE ARISEN CERTAIN TYPOG RAPHIC MISTAKES IN PARA 2 AND HEADING OF PARA 2.1. IN MP F ILED BY ASSESSEE, THESE MISTAKES HAVE NOT BEEN POINTED OUT. HOWEVER, IN THE INTEREST OF JUSTICE, WE DEEM IT PRO PER TO RECTIFY THEM. HENCEFORTH, PARA 2 SHALL BE READ AS U NDER: BRIEF FACTS OF THE CASE ARE AS UNDER: 2. AT THE OUTSET LD.AR SUBMITTED THAT ISSUES RAISED BY ASSESSEE AS WELL AS REVENUE AND CROSS APPEALS FILE D FOR ASSESSMENT YEAR 200910 AS WELL AS FOR ASSESSMENT YE AR 2010-11 ARE IDENTICAL AND TP ADDITIONS ARE BASED ON SIMILAR FACTS AND CIRCUMSTANCES. IT HAS BEEN SUBMIT TED THAT THE TP ADJUSTMENT FOR ASSESSMENT YEAR 2010-11 PAGE 4 OF 14 M.P NOS.75 & 76/BANG/2020 ARE FOR TRADING SEGMENT AS WELL INTRA-GROUP SERVICE S AND COMPARABLES SELECTED FOR COMPUTING ALP OF TRANSACTI ON IN TRADING SEGMENT, WHEREAS FOR ASSESSMENT YEAR 200 9- 10 ADJUSTMENT IS BASED ONLY IN RESPECT OF TRADING SEGMENT HEADING IN PARA 2.1 SHALL STAND DELETED AND PARA 2. 1. SHALL HENCEFORTH BE READ AS UNDER: 2.1 IT HAS BEEN SUBMITTED THAT ASSESSEE IS A COMPA NY ENGAGED IN BUSINESS OF MANUFACTURING AND TRADING A PNEUMATIC EQUIPMENTS USED IN INDUSTRY AUTOMATION. ASSESSEE IN THE TRANSFER PRICING STUDY OR ASST. Y EAR 2010-11 CATEGORISED FOLLOWING ACTIVITIES BEING CARR IED OUT FOR YEAR UNDER CONSIDERATION: A) MANUFACTURING OF PNEUMATIC PRODUCTS AND COMPONENTS TO FESTO GROUP OF COMPANIES. B) IMPORT OF FINISHED PRODUCTS FROM FESTO GROUP FOR RESALE IN INDIA C) PAYMENTS MADE BY ASSESSEE IN LIEU OF INTRA-GROUP SERVICES UNDER THE HEAD SAP SERVICE CHARGE PAYABLE TO M/S FESTO GROUP. IN RESPECT OF TRADING SEGMENT ASSESSEE APPLIED RPM TO BE MOST APPROPRIATE METHOD, WHEREAS LD.TPO APPLIED TNMM. LD. TPO FOR ASST. YEAR 2010-11 ALSO OBSERVED THAT ASSESSEE HAD MADE PAYMENT IN RESPECT OF INTRAGROUP SERVICES UNDER THE SAP SERVICE CHARGES, PAYABLE TO FESTO GERMANY AMOUNTING TO RS.3,70,71,906/-. LD.TPO DISALLOWED SAME BY HOLDI NG THAT ASSESSEE DID NOT SHOW HOW UNRELATED PARTIES WO ULD CHARGE IN SIMILAR CIRCUMSTANCES, AND THAT IN ASSESS EE'S CA AS PER THE AGREEMENT ENTERED WITH ITS AE, SAP CHARGES WAS PAID AT THE TIME OF IMPLEMENTATION, WHEREAS ASSESSEE PAID CHARGES EVERY YEAR. 4. LD.AR SUBMITTED THAT IN PARA 2.1 AT PAGE 10 OF IMPUGNED ORDER, PROPOSED ADJUSTMENT TOWARDS SAP CHA RGES PAGE 5 OF 14 M.P NOS.75 & 76/BANG/2020 HAVE BEEN DISCUSSED. HE SUBMITTED THAT FOR A.Y 2009 -10, ON AN APPEAL BEFORE LD.CIT(A), ASSESSEE WAS GRANTED RE LIEF IN RESPECT OF PROPOSED ADJUSTMENT TOWARDS SAP CHARGES. HE SUBMITTED THAT PROPOSED ADJUSTMENT WAS DELETED BY LD.CIT(A). HE ALSO SUBMITTED THAT SAID TRANSACTION WAS NOT IN DISPUTE BEFORE THIS TRIBUNAL , EITHER BY ASSESSEE OR BY REVENUE. HE SUBMITTED THAT THIS FACT MAY BE RECORDE D TO CLARIFY THE SCOPE OF REMAND TO LD.AO/TPO. WE HAVE PERUSED OUR RECORDS AND NOTE THAT SUBMISSIO N BY LD.AR IS CORRECT. ACCORDINGLY, WE CLARIFY BY INSERT ING PARA 2.1.1 AND SHALL BE READ AFTER PARA 2.1 AS UNDER: 2.1.1. WE NOTE THAT, LD.CIT(A) GRANTED RELIEF IN RESPECT OF PROPOSED ADJUSTMENT TOWARDS SAP CHARGES FOR A.Y 2010-11, ON AN APPEAL BY ASSESSEE. LD.CIT(A) DELETED PROPOSED ADJUSTMENT TOWARDS SAP CHARGES. HE ONLY DISPUTED SEGMENTS BEFORE US FOR A.Y:2010-11 ARE TRADING AND INTRA- GROUP SERVICE SEGMENTS. 5. LD.AR SUBMITTED THAT ADDITIONAL GROUND REPRODUCED IN PARA 2.2 AT PAGE 10 OF IMPUGNED ORDER IS NOT WHAT H AS BEEN FILED BY ASSESSEE. WE HAVE PERUSED OUR RECORDS. WE NOTE THAT ASSESSEE IN ITA NO.1028/BANG/2014 FILED THREE APPLICATIONS UNDE R RULE 11 DATED 17/01/2017, 22/08/2018 AND 4/11/2019 SEEKING ADMISSION OF ADDITIONAL GROUNDS NO.12,13,14 & 15 RESPECTIVELY. SUBSEQUENTLY, ASSESSEE FILED TWO PAGE 6 OF 14 M.P NOS.75 & 76/BANG/2020 APPLICATIONS DATED 02/02/2018 WHEREIN ADDITIONAL GROUND 12 AND ADDITIONAL GROUND 13-14 HAVE BEEN AGA IN RAISED. IT IS NOTED THAT, IN ALL THESE APPLICATION, ADDITIONAL GROUNDS 12,13,&14 WERE RAISED ON MERITS, WHEREAS ADDITIONAL GROUND NO.15 WAS RAISED ON LEGAL ISSUE. ON PERUSAL OF IMPUGNED ORDER, WE NOTE THAT ADDITION AL GROUND NO.13 & 14 HAVE BEEN REPRODUCED AS APPEARING IN APPLICATION FOR ADMISSION OF ADDITIONAL EVIDENCE DA TED 22/08/2017. THESE ADDITIONAL GROUNDS MENTIONED IN IMPUGNED ORDER ARE SAME AS APPLICATIONS FOR ADMISSI ON OF ADDITIONAL GROUND DATED 02/02/2018. WE ALSO NOTE TH AT, ADDITIONAL GROUND NO.12 & 15 REMAINED TO BE MENTION ED THEREIN. ACCORDINGLY, WE CLARIFY THAT HENCE FORTH, ADDITIONA L GROUND NO.12 BEFORE ADDITIONAL GROUND NO.13 AND ADDITIONAL GROUND NO.15 SHALL BE READ AFTER ADDITIO NAL GROUND NO.14. WE ALSO NOTE THAT THERE ARE ONLY 11 GROUNDS RAISED BY ASSESSEE WHILE FILING APPEAL. HOW EVER, IN APPLICATION FOR ADMISSION OF ADDITIONAL GROUND 1 3,14, DATED 22/08/2017, ASSESSEE HAS MENTIONED, AS UNDER. ACCORDINGLY PARA 2.2 SHALL BE READ AS UNDER JUST BE FORE ADDITIONAL GROUND: 2.2 ASSESSEE RAISED ADDITIONAL GROUND IN IT(TP)A NO.1028/BANG/ FOR ASST. YEAR 2009-10 IN RESPECT O F METHODS ADOPTED BY LEARNED TPO, WHILE COMPUTING ALP FOR TRADING SEGMENT WHICH READS AS UNDER: ADDITIONAL GROUND NO.12: GROUND NO 12: WITHOUT PREJUDICE TO OUR CONTENTION THAT RPM SHOULD BE ADOPTED AS THE MOST APPROPRIATE METHO D, PAGE 7 OF 14 M.P NOS.75 & 76/BANG/2020 IN CASE YOUR HONOURS CONSIDER TNMM TO BE THE MOST APPROPRIATE THEN ENTITY WIDE MARGINS SHOULD BE CONSIDERED FOR THIS PURPOSE HAVING REGARD TO THE BU SINESS MODEL OF THE APPELLANT WHICH IS INTEGRATED. WE, SUO MOTE NOTE THAT, ABOVE REFERRED ADDITIONAL GROUND WAS ADJUDICATED WITHOUT BEING ADMITTED. THOUGH, NO SUCH PRAYER IS MADE IN MP FILED BEFORE US, WE DEEM IT APPROPRIATE TO INCLUDE RELEVANT OBSERVATION REGARDI NG APPLICATION FOR ADMISSION OF ADDITIONAL GROUND NO.1 5 FILED IN IT(TP)ANO.1028/BANG/2014 FOR ASSESSMENT YE AR 2009-10. HENCE FORTH PARA 2.2.2, SHALL BE READ AFTE R PARA 2.2.1. 2.2.2. IN THE APPLICATION FOR ADMISSION OF ADDITIO NAL GROUND IT HAS BEEN STATED THAT DEVELOPMENTS DUE TO FOLLOWING DECISIONS OF THIS TRIBUNAL ASSESSEE REACH ED TO THE CONCLUSION TO RAISE ADDITIONAL GROUND 15. - AXA TECHNOLOGIES SHARED SERVICES PVT. LTD. (IT(TP)A NO. 659/BANG/2012) - AXA TECHNOLOGIES SHARED SERVICES PVT. LTD. (IT(TP)A NO. 12/BANG/2013 AND IT(TP)A NO. 756/BANG/2013) - 3I INDIA PRIVATE LIMITED (ITA NO. 581/MUM/2015) - WARBURG PINCUS INDIA PVT. LTD. (ITA NO. 6981/MUM./2012) - AMERIPRISE INDIA PRIVATE LIMITED (ITA 206/2016) - TIETO IT SERVICES INDIA PVT. LTD. (ITA NO. 242/PUN/2015) WE HAVE CONSIDERED THE RIVAL SUBMISSIONS BY BOTH SIDES. IT IS A LEGAL PLEA RAISED BY ASSESSEE, SUBSEQUENT T O APA ENTERED WITH CBDT FOR SUBSEQUENT ASSESSMENT YEARS. IT WAS SUBMITTED THAT, INTERNATIONAL TRANSACTION PERTAINING TO TRADING SEGMENT IN SIMILA R PAGE 8 OF 14 M.P NOS.75 & 76/BANG/2020 AND MARGIN AGREED IN APA COULD BE ADOPTED TO COMPUTE ALP OF TRANSACTION FOR YEAR UNDER CONSIDERATION. WE ARE CONVINCED THAT THIS ADDITIONAL GROUND OF APPEAL IS A PURELY LEGAL GROUND EMANATING FROM THE FACTS AVAILABLE ON RECORD ONLY. THE ADMISSION OF TH IS GROUND DOES NOT REQUIRE ANY FURTHER INVESTIGATION INTO THE FACTS. THIS HAS BEEN FAIRLY CONCEDED BY TH E LD.DR ALSO. SO THIS GROUND, BEING PURELY A LEGAL GROUND, IS ENTERTAINABLE AND ADMISSIBLE FOR HEARING AS PER THE PROVISIONS OF RULE 11 OF THE ITAT RULES. ACCORDINGLY, FOLLOWING DECISIONS OF HONBLE SUPREME COURT IN CASE OF NTPC LTD. VS.CIT, REPORTED IN 229 ITR 383 AND JUTE CORPORATION OF INDIA VS. CIT REPORTED IN 1991 AIR 241, WE ARE INCLINED TO ADMIT THE ADDITIONAL GROUND NO.15. 6. LD.AR SUBMITTED THAT IN PARA 4 AT PAGE 15 OF IMPUG NED ORDER, THIS TRIBUNAL REMANDED THE ISSUE TO LD.AO/TPO TO COMPARE FAR OF INTERNATIONAL TRANSACTION FOR YEARS UNDER CONSIDERATION WITH FAR OF INTERNATIONAL TRANSACTIO N FOR WHICH APA WAS ENTERED, AND TO COMPUTE ALP IF TRANSACTION IN ACCORDANCE WITH LAW. IT HAS BEEN SUBMITTED THAT, THERE IS NO DIFFERENCE IN FAR FOR ASSESSMENT YEARS, AND THEREFORE, AT THE TIME HE ARING OF APPEAL, LD.AR SUBMITTED FOR APPLICATION OF MARGIN A GREED IN APA FOR YEAR UNDER CONSIDERATION. LD.AR SUBMITTE D THAT DIRECTION GIVEN BY THIS TRIBUNAL TO COMPUTE ALP IN ACCORDANCE WITH LAW WILL NOT BE CONSTRUED BY LD.AO/ TPO, PAGE 9 OF 14 M.P NOS.75 & 76/BANG/2020 IN THE MANNER SUBMITTED BY LD.AR AT THE TIME OF HEA RING. HE THEREFORE REQUESTED FOR MODIFICATION OF DIRECTIO N TO LD.AO/TPO. LD.AR ALSO SUBMITTED THAT, CONCLUSION RECORDED AT P AGE 16 OF IMPUGNED ORDER IN RESPECT OF ASSESSMENT YEAR 2009- 10 AND 2010-11 WOULD ALSO HAVE TO BE MODIFIED IN ACCORDANCE WITH DIRECTION VIZ-A-VIZ, GROUNDS RAISED IN APPEAL. LD.SR.DR PLACED RELIANCE ON ORDER PASSED BY THIS TRIBUNAL. WE HAVE PERUSED SUBMISSIONS ADVANCED BY BOTH SIDES IN LIGHT OF OUR NOTING IN LOG BOOK AT THE TIME OF HEAR ING. WE HAVE PERUSED OUR RECORDS AND NOTE THAT SUBMISSIO N BY LD.AR IS CORRECT. ACCORDINGLY, WE MODIFY PARA 4 HEREWITH. HENCE FORTH, PARA 4, AT PAGE 15 OF IMPUGN ED ORDER SHALL BE READ AS UNDER: 4. HAVING REGARD TO THE ABOVE DISCUSSION, WE FIND IT NECESSARY TO REMAND THE ISSUE TO LD.AO/TPO TO VERIFY FAR OF ASSESSMENT YEAR IN RESPECT OF INTERNATIONAL TRANSACTION(EXCEPT SAP CHARGES), FOR WHICH APA WAS ENTERED INTO BY ASSESSEE. LD.AO/TPO SHALL COMPARE IT WITH TRANSACTION(EXCEPT FOR SAP CHARGES) FOR YEAR UNDER CONSIDERATION. IF FAR FOR INTERNATIONAL TRANSACTION(EXCEPT FOR SAP) IS FOUND TO BE SAME, LD.AO/TPO IS DIRECTED TO CONSIDER THE PRINCIPLE LAID DOWN BY HONBLE DELHI AND PUNE BENCHES, FOR DECIDING THE ISSUE IN LIGHT OF APA. PAGE 10 OF 14 M.P NOS.75 & 76/BANG/2020 UNDER SUCH CIRCUMSTANCES, OTHER GROUNDS RAISED BY ASSESSEE AS WELL AS REVENUE IN ITA NO. 969/BANG/2014, AND IT(TP)A NO.1028/BANG/2014, ALONG WITH ADDITIONAL GROUNDS 12-14 RAISED BY ASSESSEE BECOMES ACADEMIC, AND THEREFORE NOT ADJUDICATED. ACCORDINGLY, WE ALLOW ADDITIONAL GROUND 15, RAISED BY ASSESSEE FOR STATISTICAL PURPOSES. IN THE RESULT, WE REMAND APPEAL FILED BY ASSESSEE FOR DECIDING ALP OF ALLEGED INTERNATIONAL TRANSACTION IN TRADING SEGMENT TO BE DECIDED IN ACCORDANCE WITH ABOVE DIRECTION. 7. WE NOTE THAT WHILE DECIDING CROSS APPEALS FOR ASSESSMENT YEAR 2010-11, APPLICATION OF ADMISSION O F ADDITIONAL GROUND DATED 4/11/2019 REMAINED TO BE CONSIDERED. ACCORDINGLY, FOLLOWING PARAGRAPH MAY BE READ AFTER THE PARA CONSIDERING THE DELAY CONDONATION OF CROSS OBJECTION FILED BY ASSESSEE. IN APPLICATION FOR ADMISSION OF ADDITIONAL GROUND IT HAS BEEN STATED THAT DEVELOPMENTS DUE TO FOLLOWING DECISIONS OF THIS TRIBUNAL ASSESSEE REACHED TO THE CONCLUSION TO RAISE ADDITIONAL GROUND 4 - AXA TECHNOLOGIES SHARED SERVICES PVT. LTD. (IT(TP)A NO. 659/BANG/2012) - AXA TECHNOLOGIES SHARED SERVICES PVT. LTD. (IT(TP)A NO. 12/BANG/2013 AND IT(TP)A NO. 756/BANG/2013) - 3I INDIA PRIVATE LIMITED (ITA NO. 581/MUM/2015) PAGE 11 OF 14 M.P NOS.75 & 76/BANG/2020 - WARBURG PINCUS INDIA PVT. LTD. (ITA NO. 6981/MUM./2012) - AMERIPRISE INDIA PRIVATE LIMITED (ITA 206/2016) - TIETO IT SERVICES INDIA PVT. LTD. (ITA NO. 242/PUN/2015) WE HAVE CONSIDERED THE RIVAL SUBMISSIONS BY BOTH SIDES. IT IS A LEGAL PLEA RAISED BY ASSESSEE, SUBSEQUENT T O APA ENTERED WITH CBDT FOR SUBSEQUENT ASSESSMENT YEARS. IT WAS SUBMITTED THAT, INTERNATIONAL TRANSACTION PERTAINING TO TRADING SEGMENT IN SIMILA R AND MARGIN AGREED IN APA COULD BE ADOPTED TO COMPUTE ALP OF TRANSACTION FOR YEAR UNDER CONSIDERATION. WE ARE CONVINCED THAT THIS ADDITIONAL GROUND OF APPEAL IS A PURELY LEGAL GROUND EMANATING FROM THE FACTS AVAILABLE ON RECORD ONLY. THE ADMISSION OF TH IS GROUND DOES NOT REQUIRE ANY FURTHER INVESTIGATION INTO THE FACTS. THIS HAS BEEN FAIRLY CONCEDED BY TH E LD.DR ALSO. SO THIS GROUND, BEING PURELY A LEGAL GROUND, IS ENTERTAINABLE AND ADMISSIBLE FOR HEARING AS PER THE PROVISIONS OF RULE 11 OF THE ITAT RULES. ACCORDINGLY, FOLLOWING DECISIONS OF HONBLE SUPREME COURT IN CASE OF NTPC LTD. VS.CIT, REPORTED IN 229 ITR 383 AND JUTE CORPORATION OF INDIA VS. CIT REPORTED IN 1991 AIR 241, WE ARE INCLINED TO ADMIT THE ADDITIONAL GROUND NO.4 THAT READS AS UNDER: ADDITIONAL GROUND NO.4: PAGE 12 OF 14 M.P NOS.75 & 76/BANG/2020 15. AS FACTS OF CASE AND APPLICABLE LAW REMAIN IDEN TICAL DURING PERIOD UNDER APPEAL AS IN YEAR RELATING TO W HICH ADVANCE PRICING AGREEMENT ('APA') WAS ENTERED INTO FOR SUBSEQUENTLY, APPROACH, BASIS ADOPTED AND CONCLUSIO N REACHED IN APA YEARS DESERVES TO BE CONSISTENTLY AP PLIED TO YEAR UNDER APPEAL. IN THE ABOVE CIRCUMSTANCES THE PETITIONER PRAYS THA T THIS HON'BLE TRIBUNAL MAY KINDLY BE PLEASED TO; (I) ADMIT AND ADJUDICATE THE ABOVE ADDITIONAL GROUN D, AND (II) PASS ANY OTHER ORDER THAT MAY BE REQUIRED IN T HE CIRCUMSTANCES OF THE CASE AND RENDER JUSTICE. 8 . IN THE MP IT HAS BEEN SUBMITTED THAT THE CONCLUSI ON NEEDS TO BE MODIFIED AS THIS TRIBUNAL HAD REMANDED THE APPEAL BASED OF LEGAL ISSUE RAISED IN ADDITIONAL GR OUND NO.4. 4.1. WE NOTE THAT THE CONCLUSION NEEDS TO BE MODIFIED AS THIS TRIBUNAL HAS DECIDED ONLY THE ADDITIONAL GROUN D NO.4 RAISED IN CROSS OBJECTION FILED BY ASSESSEE. ACCORD INGLY, THE CONCLUSION SHALL BE HENCEFORTH READ AS UNDER: ACCORDINGLY, WE ALLOW ADDITIONAL GROUND 15, RAISED BY ASSESSEE FOR STATISTICAL PURPOSES. IN THE RESULT, WE REMAND APPEAL FILED BY REVENUE AND CROSS OBJECTION FILED BY ASSESSEE ASSESSEE FOR DECIDING ALP OF ALLEGED INTERNATIONAL TRANSACTIONS INVOLVED IN ASSESSMENT YEAR 2010-11 TO BE DECIDED IN ACCORDANCE WITH ABOVE DIRECTION. ACCORDINGLY, BOTH MISCELLANEOUS PETITIONS FILED BY ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 13 TH OCT, 2020. SD/- SD/- (A.K GARODIA) (BEENA PILLAI) ACCOUNTANT MEMBER JUDICIAL MEMBER BANGALORE, DATED, THE 13 TH OCT, 2020. PAGE 13 OF 14 M.P NOS.75 & 76/BANG/2020 /VMS/ COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, ITAT, BANGALORE PAGE 14 OF 14 M.P NOS.75 & 76/BANG/2020 DATE INITIAL 1. DRAFT DICTATED ON ON DRAGON SR.PS 2. DRAFT PLACED BEFORE AUTHOR -10-2020 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER -10-2020 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. -10-2020 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS -10-2020 SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON -10-2020 SR.PS 7. DATE OF UPLOADING THE ORDER ON WEBSITE -10-2020 SR.PS 8. IF NOT UPLOADED, FURNISH THE REASON -- SR.PS 9. FILE SENT TO THE BENCH CLERK -10-2020 SR.PS 10. DATE ON WHICH FILE GOES TO THE AR 11. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 12. DATE OF DISPATCH OF ORDER. 13. DRAFT DICTATION SHEETS ARE ATTACHED NO SR.PS