IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI `I-1' BENCH,
NEW DELHI
BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER, AND
SHRI KULDIP SINGH, JUDICIAL MEMBER
ITA No. 1013/DEL/2015
[A.Y 2009-10]
Nokia Solutions and Networks India Pvt Ltd Vs. The Addl.CIT.
7th Floor, Building No. 9A Range 18
DLF Cyber City, Sector 25A New Delhi
Gurgaon - Haryana
PAN No: AACCN 3871 F
[Appellant] [Respondent]
Date of Hearing : 19.11.2019
Date of Pronouncement : .11.2019
Assessee by : Shri Deepak Chopra, Adv
Shri Amit Srivastava, Adv
Shri Ankul Goyal, Adv
Revenue by : Shri Sanjay I Bara, CIT-DR
ORDER
PER N.K. BILLAIYA, AM:-
This appeal by the assessee is preferred against the order dated
29.01.2015 framed u/s 143(3) r.w.s 144C(13) of the Income-tax Act,
2
1961 [hereinafter referred to as 'the Act' for short] pertaining to
assessment year 2010-11.
BUSINESS PROFILE OF THE APPELLANT COMPANY
2. The appellant company engaged in the business of manufacturing
and trading of telecommunication network equipment and provision of
related services such as network design, installation and
commissioning. The company also provided support services to major
telecom operators and IP service providers in India and to customers of
its associated enterprises ("AEs").
3. The appellant company also provides software development and
certain network management support services. Further, NSN India
rendered certain marketing support services to its AEs. With this
background of the appellant's business profile, let us now consider the
grievances of the assessee.
4. Ground No. 1 is general in nature and needs no adjudication.
5. Ground No. 2 relates to the addition on account of unearned
revenue amounting to Rs. 1,02,88,91,000/-.
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6. During the course of assessment proceedings, on perusal of
Schedule 11 of the balance sheet, the Assessing Officer noticed that
the assessee has shown an amount of Rs. 1,02,88,91,000/- as unearned
revenue. The assessee was asked to give details of the same and the
treatment given to it in the computation of income.
7. In its reply, the assessee stated that since it is engaged in the
business of installation and commissioning of telecom equipment, it
has to maintain its accounts as per Accounting Standard-7 which
mandates that for the purposes of recognition of revenue, the assessee
has to follow percentage of completion method. The assessee further
explained that even if the billing milestone has been reached as per
the customer agreements but revenue cannot be recognized as per AS -
7. It was explained that the unearned revenue represents the amount
invoiced to the customers as per the terms of agreement but the same
has not accrued in the books of account of the assessee. Unearned
revenue is accrued in the financials in succeeding years as per the
method of accounting followed by the appellant and the same has
been offered to tax in the year in which it is accrued.
8. Reply of the assessee did not find any favour with the Assessing
Officer who was of the firm belief that Accounting Standard cannot
4
override the provisions of Income tax Act and since the income is due
to accrue to the assessee as per the provisions of Section 5 of the Act,
once the invoices have been raised, the same have to be accounted for
as income in the year in which the invoices have been raised.
Accordingly, drawing support from the decision of the Hon'ble Apex
Court in the case of Tuticorn Alkali Chemicals & Fertilizers Ltd 227 ITR
172, the Assessing Officer made an addition of Rs. 1,02,88,91,000/-.
9. The assessee raised objections before the DRP but without any
success.
10. While confirming the additions made by the Assessing Officer,
the DRP observed that income is liable to be taxed on the basis of its
accruing or arising to the assessee or its receipts by the assessee
during the relevant previous year. The DRP further observed that
accrual or arising of income is generally dependent on the method of
accounting employed by the assessee and since the assessee is
following the Mercantile System of Accounting, the Assessing Officer
was right in taxing the receipt during the year under consideration.
11. Before us, the ld. counsel for the assessee vehemently stated that
the determinative factor for accrual of income is not raising invoice,
rather rendering of services for which the invoice has been raised. It is
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the say of the ld. counsel for the assessee that is is only when the
corresponding services have been rendered that a right accrues to the
assessee and income is offered to tax in the year of rendering of
services. The ld. counsel for the assessee further stated that
proportionate revenue is recognized during the year in which the
invoice is raised and the balance is recognized as and when the
services are rendered by the assessee.
12. In support of his contention, the ld. counsel for the assessee
placed reliance on the decision of the Hon'ble Supreme Court in the
case of Keshav Mills 23 ITR 230 and Sasson & Co. 26 ITR 27 and the
decision of the Hon'ble Delhi High Court in the case of Dinesh Kumar
Goyal 331 ITR 10.
13. Per contra, the ld. DR strongly supported the findings of the
Assessing Officer and read the relevant portion of the assessment order
and also that of the order of the DRP.
14. We have given thoughtful consideration to the orders of the
authorities below and have carefully considered the rival contentions.
It is true that under the head `Current Liabilities", the assessee has
shown unearned revenue of Rs. 10,28,891/-. It is also true that as on
31.03.2009, the immediately preceding F.Y., unearned revenue has
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been shown at Rs. 10,42,151/- . Customer wise details of unearned
revenue which is exhibited at page 437 of the assessee's paper book
and the same read as under:
Unearned Revenue
recognized in Financial
Customer Name Details of Revenue
statements as on March
deferment
31, 2010
(Amount in I NR),
Bharti Airtel Limited 8,55,37,789
Tata 51,04,09,155 Refer Appendix I
Vodafone 10,48,30,713 Refer Appendix II
Idea 3,63,91,093 Refer Appendix III
Bharat Sanchar 27,85,70,650
Other 1,31,51,655
Grand Total 1,02,88,91,055
15. A further break-up of unearned revenue F.Y. wise for the major
Cellular Operators are placed at pages 438 to 441 of the paper book
and the same are as under:
7
8
9
10
16. This is supported by the contracts with the Cellular Operators
which have same terms and conditions and for the sake of
convenience, contract with TTSL has been considered which is placed
at pages 490 to 505 of the paper book. This contract is for the
managed services and the managed services encompass the following:
a) Start up Fees
b) Acceptance Support Fees
c) Program Management Fees
d) Managed Services Fees
17. It has been provided that TTSL shall pay 100% of the Acceptance
Support Fees for each Telecom Circle and Program Management Fees
shall be computed as under:
Month Range % Discount
0 3 0%
4 6 12%
7 9 19%
10 12 26%
13 15 33%
16 18 40%
19 21 48%
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22 24 55%
25 27 62%
28 30 69%
31 33 76%
34 36 83%
37 39 90%
40 42 98%
18. Under the additional terms, it has been agreed that offer prices
are based on the assumption that managed services will be purchased
by TTSL for 14 quarters [42 months] consecutive from MS Start Date
i.e. 1st June 2009 for first of any 9 telecom circles, agreed geography
for fixed BOM. On these agree conditions, the appellant has
recognised Revenue on the percentage completion method and when
the managed services have achieved its percentage completion. The
same is exhibited elsewhere in the form of charts.
19. In light of the contractual terms and conditions, on perusal of the
summary of unearthed revenue, as mentioned elsewhere, clearly shows
the F.Ys in which Revenue has been recognised. This is in consonance
with the well recognised Accounting Standard 7 issued by the
Institute of Chartered Accountants, which is the highest accounting
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body created by an Act of the Parliament and the same cannot be
brushed aside lightly.
20. In our considered opinion, as managed services are to be
rendered for 42 months, income thereof is spread over four years since
services are rendered for 10 months in the F.Y. under consideration
commensurate amount is booked in the current year and the balance is
treated as unearned revenue at the year-end as these services are
provided by indeterminate number of acts over a specified period of
time. Revenue is, therefore, recognised on straight-line basis over a
period for which services are to be rendered.
21. Needless to mention her that same accounting principle has been
accepted in earlier A.Y. It is also pertinent to note that the assessee
has offered tax in subsequent years amount as and when services are
rendered and, therefore, by any stretch of imagination, it cannot be
said that there is some revenue leakage. For this proposition, we
derive support from the decision of the Hon'ble Supreme Court in the
case of Excel Industries 358 ITR 295.
22. The Hon'ble Delhi High Court in the case of Dinesh Kumar Goyal
[supra] was seized with the following question:
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"Whether the entire tuition fees of the course, which may be of
two years' duration, collected by the assessee running a
coaching institute from the students at the time of admission,
can be taxed in the year of receipt?"
23. The Hon'ble High Court held as under:
"It is important that receipt of a particular amount in the
relevant year should be an "income" under the provision of s. 5.
What is the relevant yardstick is the time of accrual or arisal
for the purpose of its taxation, viz., in order to be chargeable,
the income should accrue or arise to the assessee during the
previous year. If income has accrued or arisen, even if actual
receipt of the amount is not there, it would be chargeable to
tax in the said year. Though the amount may be received later
in the succeeding year, the income would be said to accrue or
arise if there is a debt owed to the assessee by somebody at
that moment. From this, it follows that there must be the
"right to receive the income on a particular date, so as to bring
about a creditor and debtor relationship on the relevant
date".--E.D. Sassoon & Co. Ltd. & Ors. vs. CIT (1954) 26 ITR
27 (SC) followed.
At the time of admission, the students are required to
deposit the whole fee of the entire course, but that would
only remain a 'deposit' or 'advance' and it cannot be said that
this fee had become 'due' at the time of deposit. Fee is
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charged in advance for the entire course, presumably because
of the reason that there should not be any default in making
the said fee by the students during the period of course.
Interestingly, the AO in his assessment order has himself
stated that "students were required to deposit the fee for
the whole module of course at the time of registration itself".
The AO has used the expression 'deposit'. In the very next
breadth, he draws the conclusion that this would mean that
the fee had become 'due'. Thus, the AO knew the significance
of the expression 'deposit' vis-a-vis 'due', though he
committed the mistake in treating the said deposit as the fee
becoming due. It becomes apparent that the fee was not due
at the time of deposit. The services in respect of financial
year 1997-98, for which also the payment was taken in
advance were yet to be rendered. Therefore, this could only
be treated as advance otherwise it would lead to an anomalous
situation, highly derogatory to the assessee, which is not
intended in law, viz., even when the very amount received,
expenses are to be deducted to arrive at the net income and
those expenses are yet to be incurred (which may be incurred
in the next financial year), the entire receipts become income
which would be exigible to much tax.--E.D. Sassoon & Co. Ltd.
& Ors. vs. CIT (1954) 26 ITR 27 (SC),"
24. The Hon'ble High Court further observed as under:
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"The term 'accrual' relates to revenues earned or cost
incurred. Two things follow from this, viz., unless the revenue
is earned, it is not accrued. Likewise, the expenses unless are
incurred, cost in respect thereof cannot be treated as
accrued. Secondly, it recognizes the matching concept, viz.,
receipts are to be matched expenditure to arrive at the net
income, which would then be exigible to tax. Reading of the
AS-9 issued by ICAI makes it clear that revenue is
recognized only when the services are actually rendered. If
the services are rendered partially, revenue is to be shown
proportionate with the degree of completion of the services.
This really clinches the issue in favour of the assessee. The
receipts relate to the unexecuted packages, which are not
shown in the instant year would be shown in the succeeding
year. Rate of tax in respect of companies remains the same in
all these years. Therefore, the Revenue does not lose
anything, as it would receive the tax on this income in the
succeeding year. Still issues are raised and much outcry is
made for nothing. All these appeals are dismissed with costs
quantified at Rs. 10,000 in each appeal. The entire cost shall
be paid within a period of two weeks to the Library Fund of
the Delhi High Court Bar Association.--CIT vs. Woodward
Governor India (P) Ltd. (2009) 223 CTR (SC) 1 : (2009) 21
DTR (SC) 106 :(2009) 312 ITR 254 (SC) and CIT vs. Bilahari
Investment (P) Ltd. (2008) 215 CTR (SC) 201 :(2008) 3 DTR
(SC) 329 :(2008) 299 ITR 1 (SC) applied. "
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25. Considering the facts of the case in totality, in the light of
contractual terms and conditions and considering the fact that the
unearned revenue has been offered for tax in the subsequent years as
exhibited in chart elsewhere, we are of the considered opinion that ht
addition of Rs. 1,02,88,91,000/- is uncalled for and deserves to be
deleted. Thus, Ground No. 2 is allowed.
26. Ground no. 3 relates to the disallowance of provision for
liquidated damages amounting to Rs. 57,93,45,721/-. During the
course of the scrutiny assessment proceedings, the AO asked the
assessee to explain how provision of liquidated damages was worked
and to give details of actual claims viz-a-viz provision for last three
years. Vide reply dated 10.03.2014 the assessee explained in detail
the nature of the provision and how it has been dealt in its accounts.
The detailed reply of the assessee is exhibited at pages 6 to 10 of the
assessment order.
27. The detailed reply of the assessee did not find any favour with
the AO who was of the opinion that part of the provision of liquidated
damages was on unscientific basis and on the basis of the details filed
by the assessee it is not possible to determine how much was on
17
scientific basis and how much was on non-scientific basis. Accordingly,
the claim of assessee was rejected and addition of Rs. 57,93,45,721/-
was made which was confirmed by the DRP. Before us, Counsel for the
assessee out rightly stated that a similar issue was considered by the
Tribunal in assessee's own case in AY 2004-05 and has decided the
issue in favour of the assessee and against the Revenue.
28. Per contra, the DR strongly supported the findings of the AO/DRP
but could not bring any distinguish addition in favour of the Revenue.
29. We have given a careful consideration to the orders of the
authorities below and have also perused the order of the coordinate
bench in ITA No. 3202/Del/2014 for AY 2004-05. We find force in the
contention of the Ld. Counsel. An identical issue was considered and
decided by the coordinate bench. The relevant findings read as under:
"4.4.1 Ground no. 5 of appeal is direct against
disallowance of a sum of Rs. 17,61,99,671/- towards
provision for liquidated damages. During the year, the
assessee has claimed provision for liquidated damages
to the tune of Rs. 17,61,99,671/-. The assessee stated
that in terms of the purchase order received from
customers, liquidated damages @ 0.5% per week
subject to a maximum of 0.7% or such other rate as
per the relevant contract would be imposed for the
late delivery of equipment. The stipulation in the
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purchase order clearly shows that the liability for
liquidated damages is certain, accrued and is not
dependent upon the happening of any event other
than delay in deliveries. As the company defaulted in
the delivery terms, the liquidated damages have been
rightly considered as business expenditure. The
company is following the method on a consistent basis.
When the payment was actually made the accounts
were adjusted with reference to any remission or
waiver that the company may get in respect of
damages payable for the late delivery and the same
was brought to tax u/s 41(1) of the IT Act, 1961 by
crediting the liquidated damages account. The AO
held that the provision made for liquidity damages
amounting to Rs. 17,61,99,671/- is unascertained
liability in the nature of contingent liabilities and,
therefore, added the same. In terms of the purchase
order, liquidated damages @ 0.5% per week subject to
a maximum of 0.7% would be imposed. The company
defaulted in the delivery terms, therefore, the above
liability is as definite liability. Further, as the
liability is determinable 0.05% per week subject to a
maximum of 0.7%, therefore, the liability is also an
ascertained liability. The liability to pay liquidated
damages arose no sooner than there was a breach.
The company had provided for the liquidated damages
pertaining to the period of delay falling within the
previous year in order to arrive at the true income of
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that year based on the accrual method of account.
The company is following the method on a consistent
basis.
4.4.2 Hon'ble Supreme Court in the case of Bharat
Earth Movers Ltd. vs. CIT (245 ITR 428) held that if a
business liability has definitely arisen in the
accounting year, the deduction should be allowed
although the liability may have to be quantified and
discharged at a future date. What should be certain is
the incurring of the liability. It should also be capable
for being estimated with reasonable certainty though
the actual quantification may not be possible. If these
requirements are satisfied the liability is not a
contingent one. Similar disallowance was deleted by
Ld. CIT(A) in AY 2005-06 following the disallowance of
Hon'ble ITAT in the case of Thermax Babcock and
Wilcox Ltd. vs. Addl. CIT 304 ITR 130 (AT). In view of
the above factual and legal position, the addition of
Rs. 17,61,99,671/- towards provision for liquidated
damages made by the AO is legally not sustainable.
Therefore, the same is deleted. The appeal is allowed
in this ground.
8. In the present case from page no. 136 of the assessee's
paper book, it is noticed that total provision for liquidated
damages was of Rs. 19,66,51,910/- out of which Rs.
2,04,52,238/- were utilized and credited/written back, the
remaining amount of Rs. 17,61,99,672/- was the actual
amount of the damages which were accounted for in the
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profit and loss account. In the instant case, the Ld. CIT(A)
categorically stated that when the payments were actually
made, the accounts were adjusted with reference to any
remission or waiver that the company may get in respect of
damages payable for the late delivery and the same was
brought to tax u/s 41(1) of the Act by crediting the liquidated
damages accounts. Therefore, the impugned amount was not
only the provision but the actual amount of the liquidated
damages pertaining to the period of delay falling within the
previous year relating to the assessment year under
consideration. The Ld. CIT(A) categorically stated that the
assessee was following this method consistently. We,
therefore, do not see any valid ground to interfere with the
factual findings given by the Ld. CIT(A) and accordingly do
not see any merit in the ground raised by the Department."
30. Respectfully following the findings of the coordinate bench, we
direct for the deletion of the addition of Rs. 57,93,45,721/-. The
Ground no. 3 is accordingly allowed.
31. Ground no. 4 relates to the disallowance of expenditure incurred
in foreign currency. While scrutinizing the return of income and on
perusal of Form 15CA the AO noticed that the assessee has made
certain payments in foreign currency without deducting tax at source.
The assessee was asked to furnish the details and on perusal of the
details the AO found that the assessee has paid an amount of Rs.
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9,70,103/- as school fee to various schools. The AO was of the firm
belief that this is not allowable business expenditure and, accordingly,
made the addition of Rs. 9,70,103/- which was upheld by the DRP.
Before us, the Counsel for the assessee stated that the expenditure has
been incurred for the welfare of the employees and hence should be
allowed as business expenditure. The Counsel further stated that the
said school fee has been treated as perquisites in the hands of the
employees and, therefore, the same part takes the character of
salaries. The DR strongly supported the findings of the AO. It is the
say of DR that a new plea has been taken by the Counsel for the first
time before the Tribunal which needs verification.
32. We have carefully considered the rival contentions. It is not in
dispute that school fees of the children of the employees have been
paid by the assessee company. We are of the considered view that if
the same is treated as perquisites in the hands of the employees then
the same takes the colour of the salaries. We, accordingly, restore
this issue to the files of the AO. The assessee is directed to
demonstrate that the school fees has been treated as perquisites in the
hands of the employees and the AO is directed to examine the same
and decide the issue afresh after giving a reasonable opportunity of
22
being heard to the assessee. Ground no. 4 is treated as allowed for
statistical purposes.
33. Ground no. 5 relates to the disallowance out of technical training
expenditure. As mentioned elsewhere during the course of the
assessment proceedings the assessee was asked to give details of
foreign currency payments with nature and TDS. Assessee filed the
details of expenditure in foreign currency and the same is as under:
Name of Vendor Amount in INR
SIEMENS AG OSTERREICH 8,97,807
TELEMANAGEMENT FORUM 9,17,375
HIGHDEAL SA 19,07,362
IMOLA INFORMATICA SRL 5,92,193
DIGITAL ROUTE AB 4,75,393
Contra 18,94,84,993
Nokia Siemens Networks GmbH & 53,10,206
Co. KG BMC SOFTWARE ASIA PACIFIC
PTE LTD 2,62,523
Total 19,98,47,851
34. From the above table, the AO found that a sum of Rs. 18.94
crores was not paid to anyone. When the assessee was asked to justify
the same, the assessee filed a certificate of a Chartered Accountant
stating therein that the said amount has been wrongly included in the
figures of foreign exchange outflow. The assessee also filed relevant
ledger account to show that it is merely a contra entry and no such
expenditure has been charged to the profit and loss account.
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35. The reply of the assessee did not find any favour with the AO who
was of the opinion that the certificate of the Chartered Accountant is
not from the Chartered Accountant who has audited the accounts. The
AO, accordingly, added the sum of Rs. 18,94,84,993/- which was
upheld by the DRP. Before us, the Counsel for the assessee reiterated
that the said entry was a contra entry and inadvertently the same has
been shown under the details of expenditure in a foreign currency. It
is the say of the Counsel that complete ledger accounts were filed
before the AO and the DRP but none of them examined the ledger
accounts. The DR strongly supported the findings of the AO/DRP.
36. We have carefully considered the orders of the authorities below.
It is true that amount of Rs. 18.94 crores is part of the details of the
expenditure in foreign currency as mentioned else where. It is equally
true that the Chartered Accountant certificate clearly shows that it is
a contra entry inadvertently shown under the head "details of
expenditure" in foreign currency. We find that complete ledger
accounts were given to the lower authorities which were not examined
by them. In the interest of justice and fair play, we restore this issue
to the files of the AO. The AO is directed to examine the ledger
accounts and verify whether it is contra entries and after verifying the
same and if found correct delete the addition, after giving a
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reasonable opportunity of being heard to the assessee. Ground no. 5 is
treated as allowed for statistical purposes.
37. Ground no. 6 relates to the disallowance of depreciation on
goodwill. At the very outset, the Counsel of the assessee stated that
this issue is now well settled in favour of the assessee and against the
Revenue by the order of the Tribunal for AY 2008-09. The Counsel
pointed out that the Tribunal has set aside the issue for verification
and the AO has allowed depreciation giving effect to the order of the
Tribunal. The DR strongly objected to the claim of depreciation on
goodwill and pointed out that Section 32 is silent of depreciation on
goodwill and since there is no specific provision for the claim of
depreciation on goodwill the same should not be allowed.
38. We have carefully considered the rival contentions. In so far as
the claim of depreciation on goodwill is concerned the issue is now
well settled in favour of the assessee and against the Revenue by the
decision of the Hon'ble Supreme Court in the case of Smifs Securities
Ltd. 348 ITR 302. So far as the claim of depreciation is concerned, we
find that the Assessing Officer himself has allowed the claim of
depreciation while giving effect to the order of the coordinate bench
in ITA No. 332/Del/2013 for AY 2008-09. Since the depreciation has
already been allowed for AY 2008-09 by the coordinate bench (supra).
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We, accordingly, direct the AO to allow the depreciation on goodwill as
per the provisions of law. Ground no. 6 is accordingly allowed.
39. Ground no. 7 relates to the transfer pricing adjustments
amounting to Rs. 1,17,24,04,607/-. The adjustments have been made
in respect of the international transaction under taken by the
appellant namely provision of marketing support services and provision
of warranty support services. We find that a similar transfer pricing
adjustment was made in AY 2009-10 in respect of market support
service segment and the matter travelled upto the Tribunal and the
coordinate bench in ITA No. 2810/Del/2014 has decided this issue as
under:
"44. We have heard the rival submissions and have given
thoughtful consideration to the orders of the authorities
below. It is an undisputed fact that the assessee has
recharged the total cost of marketing team along with mark
up of 3% from the AE, which means that the AE not only
compensated the cost of marketing, team attributable
towards the provision of marketing support services to AE by
the assessee but also compensated the cost of marketing
team attributable to the support provided by the marketing
team to the assessee itself. This is not warranted as per the
inter company agreement. In our considered opinion,
considering the attribution to the services provided to the
AE, vis a vis actual Revenue realised from the AE, margin of
26
the assessee from the provision of marketing support services
has to be higher than 3%. We find that now the assessee has
obtained certain documentary evidence and, accordingly,
wishes to submit the same in respect of the claim.
45. In view of the above, we are of the considered opinion
that cost of marketing team should be bifurcated based on
revenue of AE from its operations in India vis a vis revenue
generated by the assessee from its sales to third party
vendors. We, accordingly, restore this issue to the file of the
Assessing Officer/TPO. The assessee is directed to submit the
India Specific Profit and Loss Account, network equipment
sales to Indian telecom operators of the AE duly certified by
an authorised public accountant of Finland. The TPO is
directed to examine the same and decide the issue afresh
after giving reasonable and sufficient opportunity of being
heard to the assessee."
40. Respectfully following the findings of the coordinate bench on
finding parity of the facts with the case in hand, we direct the AO/TPO
accordingly.
41. The second adjustment is in respect of warranty support
services. This was also disputed in AY 2009-10 and the coordinate
bench in the same order in ITA No. 2810/Del/2014 has decided this
issue as under:
"53. We have heard the rival submissions and have given
thoughtful consideration to the orders of the authorities
27
below. We have also accordingly perused the advance pricing
agreement u/s 92CC of the Act between the CBDT and the
assessee which is exhibited at pages 18 to 76 of the paper
book. It is true that the agreement is applicable to 4
consecutive rollback years commencing from the previous
year 2009-10 to previous year 2012-13. However, we find
that the FAR analysis of the year under APA applicable from
assessment year 2010-11 to be read as (2014-15) can also be
used for the year under consideration since the TP
adjustment is of a very small amount being 1.01 crores.
Considering the facts in totality, we direct the TPO to accept
the TSS segment as part of network division for bench
marking the international transaction which means that this
segment should be taken with the main network division of
aggregated approach for bench marking."
42. Since, the facts of the case in hand are identical to the facts of
AY 2009-10. Respectfully following the findings of the coordinate
bench (supra), we direct accordingly. Ground no. 7 is allowed.
43. In the result, the appeal filed by the assessee is allowed in part
for statistical purposes.
The order is pronounced in the open court on 21.11.2019.
Sd/- Sd/-
[KULDIP SINGH] [N.K. BILLAIYA]
JUDICIAL MEMBER ACCOUNTANT MEMBER
28
Dated: 21st November, 2019
VL/
Copy forwarded to:
1. Appellant
2. Respondent
3. CIT
4. CIT(A)
5. DR
Asst. Registrar
ITAT, New Delhi
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