TMI Blog2011 (2) TMI 1283X X X X Extracts X X X X X X X X Extracts X X X X ..... mon issue in these appeals of the assessee is against the order of CIT(A) confirming the action of the Assessing Officer in not granting exemption of dividend income. For this, the assessee has raised the following ground No. 1 in assessment year 2003-04 and identical ground is raised in assessment year 2004-05. For the sake of convenience, we are reproducing the ground for assessment year 2003-04. "1. The learned CIT(A) has erred in law and on facts in confirming the action of Assessing Officer in not granting exemption under section 10(33) of the Act on the dividend income of Rs. 27,918." 3. At the outset ld. counsel for the assessee fairly stated that he has instruction from the assessee not to press this issue due to smallness of amount. Accordingly, the same is dismissed as not pressed. 4. The second common issue in these appeals of assessee is against the order of CIT(A) in confirming the action of the Assessing Officer in disallowing the expenses by invoking the provisions of section 14A of the Act. For this, assessee has raised the following ground No. 2 in assessment year 2003-04 and identical ground is raised in assessment year 2004-05. For the sake of convenien ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order of this Tribunal in Assessee s own case in ITA No. 3830/Ahd/2003, 2705/Ahd/2004, 2339/Ahd/2005 for assessment year 2000-01, 2001-02 2002-03 and also by the order of this Tribunal in the case of the assessee s associate concern, i.e., Schutz Dishman Biotech (P.) Ltd. [ITA No. 3590/Ahd/2007, for A.Y. 2004-05]. In both those decisions, the matter has been set aside to the file of Assessing Officer to re-examine and re-adjudicate the claim as per law. 8. We have heard the rival contentions and gone through the facts and circumstances of the case. We find that this issue has been decided by this Tribunal in assessee s sister concern Schutz Dishman Biotech (P.) Ltd. ( supra ), respectfully following this decision, we restore the issue to the file of Assessing Officer to decide the same as per the above decision. Accordingly, this common issue of both the appeal of assessee is allowed for statistical purposes. 9. The next common issue in this appeal of assessee is against the order of CIT(A) in confirming the levy of interest under section 234ABC of the Act. For this, assessee has raised the following ground No. 8 for the assessment year 2002-03 and identical groun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the cash credit shall have to be confirmed." We find that during the year under consideration, the assessee made purchase of raw materials amounting to Rs. 15 lakh and the following three parties made payment to the suppliers on behalf of the assessee : Sr. No. Name of the party Amount (Rs) 1. Janki Shah 7,00,000 2. Piyush G. Shah 5,50,000 3. Piyush G. Shah (HUF) 2,50,000 Total 15,00,000 We find that the assessee has admitted this addition, accordingly same is confirmed. This issue of the assessee s appeal is dismissed. Now coming to Revenue s appeals in ITA No. 587/Ahd/2007 and 3213/Ahd/2007 for assessment year 2003-04 and 2004-05 Since the issues and facts are exactly common except amount, we will take up the issue from assessment year 2003-04 in ITA No. 587/Ahd/2007 and decide the issues for both the years. Both, the ld. counsel for assessee as well as ld. CIT-DR agreed for the same. 15. The first common issue in these appeals of the revenue is against the order of CIT(A) in deleting the disallowance made by the Assessing Officer in respect to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en relied upon by the CIT (Appeals) also and subsequent decision of ITA Ahmedabad Bench "D" in the case of Jt. CIT v. M/s. Plastichemix Industries for assessment year 1997-98 in ITA No. 1717/Ahd/2001, dated 9-3-2007, wherein the expenditure paid on account of ISO-9002 Certificate has been allowed and he relevant findings of the Tribunal as contained in paragraph No. 10, read as under : 10. We have heard both the parties and perused the record and also the decision cited by the learned AR of the assessee. In the case of ACIT v. Upper India Steel Mfg. Engg. Co. ( 150 Taxman 51 ), the expenditure incurred by the assessee-company for issue of ISO-9002 certificate was disallowed by the Assessing Officer holding that the amount was in nature of capital expenditure. On appeal, the Commissioner (Appeals) deleted the impugned addition made by the Assessing Officer holding that the amount had been incurred by the assessee for the purposes of facilitating its business thereby making it more efficient and profitable because procurement of such certificate not only ensured certified level of the quality of the product but also boosted the sales of the assessee. On appeal the Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ares. It is the normal practice of the assessee to invest in the shares of group concerns and as a matter of fact by investing in the shares of group concerns and thus by promoting and nurturing these group companies, the assessee makes huge profit. As a matter of fact, in the assessment year 2000-01 only, by selling shares in one of the other group concerns, the assessee made capital gain in the sum of Rs. 33,20,000 and this really shows that the investment is a part of business activities of the assessee. Further these group concerns are also in the same line of business and therefore by making investments in share capital of these companies, the assessee ensures smooth business relations, timely supply of materials and proper execution of the job work at a great comfort level. The investment in the shares was therefore for the purpose of the business. Accordingly, it was submitted before the CIT(A) that the assessee must get the interest expenditure either under section 36(1)( iii ) of the Act or under section 57( iii ) of the Act. 19. Before us also it was stated that the Assessing Officer has failed to establish the nexus between the amount borrowed and allegedly invested ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of revenue s appeals is dismissed. 21. The next common issue in these appeals of the revenue is against the order of CIT(A) in deleting the disallowance of interest expenses on security deposit made by Assessing Officer. For this, the revenue in ITA No. 587/Ahd/2007 for assessment year 2003-04, reads as under : "1. The CIT(A) erred in law and on facts in directing ( iii )To allow interest expenses on security deposit of Rs. 2,53,310." In ITA No. 3213/Ahd./2007 for assessment year 2004-05, the ground reads as under : "3. The CIT(A) erred in law and on facts in directing to allow interest expenses of Rs. 2,53,210 on security deposits." 22. The brief facts leading to the above issue are that assessee has given security deposit of Rs. 15,83,932 to Smt. Aditi J. Vyas and Rs. 5,26,154 to Shri J.R. Vyas towards rented premises used as office of the assessee. The Assessing Officer stated that, since these persons are directors of the assessee, there is no need to place security deposit and therefore he disallowed Rs. 2,53,210 out of interest expenditure on the ground that interest bearing funds have been diverted for non-business purposes. The assessee before the ld. C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 25. The brief facts leading to the above issue are that during the course of the assessment proceedings the Assessing Officer issued notices to the Banks and obtained inventory statements from the respective banks. The Assessing Officer thereafter compared the said stock statements with the stock as appearing in the books of accounts and reached to a conclusion that there was a difference of stock both in terms of quantity as well as valuation running into Rs. 9,41,43,486 and therefore he added the same as unexplained investments in the hands of the assessee. The assessee before the CIT(A) stated that there is no difference in the stock as appearing in the books of accounts and as submitted to the Banks for obtaining various credit facilities as alleged by Assessing Officer or for the reasons as alleged are not at all. As a matter of fact on an overall basis the position of stock as on 25-3-2003 was as follows : Stock in Rs. in quantity Stock as per bank account 38,39,52,610 1590.69 M.T. Stock as per books of accounts 40,34,08,263 1595.93 M.T. Thus on overall basis books of accounts show more stoc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... books of accounts by an amount of Rs. 8,82,00,540. However the Assessing Officer ignored this figure in order to make addition on account of alleged difference in the stock figure. Had this amount been considered and taken into account, stock as per books of accounts would have been higher by Rs. 1,94,55,653. A detail statement showing this over all position has already been placed on record as annexure I of the submissions placed by assessee, wherein it can be seen that on an overall basis the figure of stock both in terms of quantity as well as value, is higher in the books of accounts as compared to the statement given to the bank. Even otherwise, we find that issue is squarely covered in favour of the assessee and against the revenue in ITA No. 3830/Ahd/2003 for assessment year 2000-01 in assessee s own case by this Tribunal vide para-35 to 37 as under : "35. After careful consideration of the rival submissions, facts and circumstances of the case and the reasons stated by the assessee and the CIT (Appeals), we are of the opinion that so far as Assessing Officer s allegation of difference in stock (quantity-wise) shown to the bank and as per books of account is concerned, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 521/Mum/2001 ( vii ) JM Soni v. ITO 105 Taxman, 197 (Ahd.) ( viii ) CIT v. Parry Agro Industries Ltd. 257 ITR 45 and ( ix ) CIT v. Rathore Brothers 254 ITR 656 (Mad.) 37. In view of above discussion and the decisions relied upon by the assessee we do not find any infirmity in the order of the CIT (Appeals) on this point also and, therefore, the same is confirmed and revenue s ground No. 7 is rejected." In view of the above facts and the decision of this Tribunal in assessee own case, the issue is squarely covered in favour of the assessee and against the revenue. Accordingly, we uphold the order of CIT(A) and this common issue of revenue s appeals is dismissed. 27. The next common issue in these appeals of the revenue is against the order of CIT(A) in deleting the disallowance made under section 14A of the Act by Assessing Officer. For this, the revenue in ITA No. 587/Ahd/2007 for assessment year 2003-04, reads as under : "5. The CIT(A) erred in law and on facts in directing ( v )To delete the disallowance made under section 14A of Rs. 10,34,489." In ITA No. 3213/Ahd./2007 for assessment year 2004-05, the ground reads as under : "4. The CIT(A) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al submissions, facts and circumstances of the case and decisions relied upon by the ld. AR, the ld. DR did not bring any material to our notice, which could lead the factual findings of the CIT (Appeals) that there is no diversion of interest-bearing funds as the entire amount has come out of the assessee s own funds, the CIT (Appeals) was quite justified in holding that the provisions of section 14A of the Act were not applicable, so far as interest expenditure of Rs. 1,626 was concerned, we, therefore, do not find any reason to interfere with the findings of the CIT (Appeals), which are confirmed." In view of the above facts and circumstances, we are of the view that in the present case that the Assessing Officer is unable to prove the nexus and the CIT(A) has rightly deleted the disallowance. As the issue is squarely covered in favour of assessee and against the revenue by the Tribunal s decision in assessee s own case, respectfully following the same, we allow the claim of assessee and uphold the order of CIT(A). This common issue of revenue s appeals is dismissed. 30. The next common issue in these appeals of the revenue is against the order of CIT(A) in deleting the ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee at 21.28 per cent was higher than the average comparable PBIT of other similar cases at 14.74 per cent. 32. However the Assessing Officer rejected the method followed by the assessee on the grounds which are reproduced herein below together with the explanation of the assessee : lAccording to TPO, this method is not appropriate as in the said method controlled transactions are being compared with uncontrolled transactions wherein the degree of comparability with uncontrolled transactions is very high. The assessee most respectfully submits that this is a general reason as in case of the appellant, it has been categorically demonstrated that its PBIT of 21.28 per cent is very much comparable with other similarly placed assessees. Once overall PBIT is comparable, the question of comparing each individual transaction does not arise. lTPO contended that this method is most appropriate only when the assessee provides the information regarding gross profit mark up to costs with regard to exports to related and unrelated entities. The assessee most respectfully submits that it has provided the information regarding gross mark up of the assessee as a whole which includes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dation for the same. As has been stated above, the assessee is in a position to identify its PBIT with DEL vis-a-vis others and from the said Annexure-A it can be seen that the PBIT with DEL was 21.32 per cent as compared to an overall PBIT of 21.28 per cent. If that be the scenario, the contention on the part of TPO is without any basis and incorrect assumption of the facts. lThe assessee therefore most respectfully submits that the only reason why has rejected its TNMM method was on the ground that the gross profit mark up with respect to exports to DEL and others is not available. Now since the information is available, this ground for rejecting the TNMM goes away and therefore the method adopted by the assessee may kindly be accepted. 33. The assessee stated that the OECD guidelines sought to be relied upon by TPO in fact helps the case of the assessee inasmuch as that it has been very specifically stated in the said guidelines that if the net margins from uncontrolled transactions vis-a-vis controlled transactions can be compared, then TNMM is the best method to find out the Arm s Length Price. As stated earlier the same information is very much available and placed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch price is adjusted to account for differences, if any, between the international transaction and the comparable uncontrolled transactions or between the enterprises entering into such transactions, which could materially affect the price in the open market; ( iii )the adjusted price arrived at under sub-clause ( ii ) is taken to be an arm s length price in respect of the property transferred or services provided in the international transaction; 34. The assessee further stated that the said method can only be applied after taking into consideration various factors and material differences arising on account of risk, financial support, marketing support, technical support, geographical presence, ready set up, recognition, assets employed and currency fluctuations. The assessee further stated that as prescribed under the said CUP method, adjustments on account of differences between the international transactions and comparable uncontrolled transactions or between the enterprises entering into such transactions which could materially affect the prices in the open market is very difficult to quantify. In fact, TPO has not made an attempt to make any adjustment on account of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of net margin on each transaction or aggregation of similar transactions. Selection for this method and computing net profit on entire sales of the company becomes more irrelevant when internal CUP data shows that for certain fine chemicals/pharmaceuticals, the assessee has charged considerably higher price in domestic market as compared to export price to its AE. Higher margins on domestic sales cannot justify arms length tans of its sale to the AE, as higher domestic rates means, net profit is more due to higher domestic margins. In certain cases, sale price of export to non AEs are higher than sales price to the AEs and in certain cases sales price charged to one AE is substantially higher than sales price charged to other AE. Under the circumstances, lower sales price charged are at arm s length does not come out from the method employed by the assessee for comparison of these international transactions. The assessee has itself stated that for certain transactions internal unrelated price are available. However, for reasons best known to it, they have not carried out any comparison using internal data for comparison purpose. Similarly, no efforts were made by the assessee fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le as well as operating parameters of the subsidiaries is significantly different vis-a-vis the same applicable to other parallel uncontrolled international transactions entered into by the assessee. All these factors stated above affects secondary sale by the AEs or non-AEs in their jurisdiction and does not affect sales made by the assessee to the AEs and Non-AEs. Functions carried out by the AEs will give better margins to them on their secondary sale but will not be having any effect on purchase price of these AEs. ( ii )The assessee himself stated that limited internal CUPs are available but stated that they are not strictly comparable even after making permissible adjustment. Hw, he has not explained the same any further and has not given any reasons why they are not comparable. ( iii )The assessee has failed to submit details even for the application of TNM method when Assessing Officer asked him to provide product-wise margin where he stated that "we are not working out product-wise cost of production." Under the circumstances, we regret that gross profit mark up on sale separately for exports to Dishman Europe (UK), Dishman (USA) the exports to unrelated parties, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is engaged in manufacturing amines and M/s Deepak Nitrite Ltd., is engaged in manufacturing agro chemicals, sodium nitrite etc. (D)Wrong and irrelevant reasons given for non-application of CUP. The assessee has given following reasons due to which internal;/external CUP as per it cannot be applied : ( a )Our cost of manufacturing and gross and net margin earned by us; ( b )Large quantity of goods sold to single party i.e., to WOS (wholly owned subsidiaries) v. small quantity of goods sold to various parties, as in former case one is having certainty of business whereby the cost of manufacture of products can be less. Also cost of packaging and transportation also needs to be considered. ( c )For sales in domestic market import duty component if imported by the purchaser. ( d )In our case AE is sour WOS and as per the arrangement EE s scope of services as to marketing, payment and also the overall risk assumed by AE is also required to be taken into consideration while comparing the price at which the product is supplied to AE with that of price of the product supplied to others as well as the price at which the third party sales its product to others. ( e )Over and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h price. However, in ITA No. 2469/Mum/2006 in the case of Serdia pharmaceutical India Pvt. Ltd. v ACIT it has been held at para No. 51 that selection of method of determining the arm s length price is not on the unfettered discretion of the tax payer (Annexure-C). ( ii )CIT(A) erred in admitting fresh evidence regarding consolidated PBIT with respect to transaction with AEs during appellate proceedings as same were not produced before the TPO by the assessee. However, these consolidated PBIT are not relevant for the purposes of determining net profit margin under TNMM as net profit margin is to be computed on an international transaction or aggregated similar transactions. The assessee has not submitted net profit margin on each international transaction or on each product which are part of international transaction and it was stated by the assessee categorically that assessee is not maintaining such data. The ITAT Mumbai L Bench in the case of UCB India Pvt. Ltd. v. ACIT 121 ITD 131 (Mum.) [2009-T11-02-ITAT-MUM-TP] has held that section 92C read with Rule 10B(1)( e ) deals with Transactional Net Method (TNMM) and it refers to only net profit margin realized by an enter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ransactional profit method either in conjunction with traditional transaction methods or on it own. However, even in a case of last resort, it would be inappropriate to automatically apply a transactional profit method without first considering the reliability that method (para 3.50 of the OECD Report.)." Even the latest guidelines of OECD of 2010 states in para 2.3 that : "Traditional transaction methods are regarded as the most direct means of establishing whether conditions in the commercial and financial relations between associated enterprises are at arm s length. This is because any difference in the price of a controlled transaction from the price of a comparable uncontrolled transaction can normally be traced directly to the commercial and financial relations made or imposed between the associated enterprises, and the arm s length conditions can be established by directly substituting the price in a comparable uncontrolled transaction for the price of the controlled transaction. As a result, where taking into account the criteria established in paragraph 23.2 a traditional transaction method and a tradition profit method can be applied in a equally reliable manner, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... han sales price to the AEs and in certain cases sales price charged to one AE its substantially higher than sales price charged to other AE. Under the circumstances, lower sales price charged are at arm s length does not come out from the method employed by the assessee for comparison of these international transactions. The assessee has itself stated that for certain transactions internal unrelated price are available. However, for reasons best known to it, they have not carried out any comparison using internal data for comparison purpose. Similarly, no efforts were made by the assessee for obtaining external data which are available in public domain like; Exim key data, IBIS data etc., where unit export price for export of these chemicals/pharmaceuticals to various countries in the world from Indian Port are available related to Indian manufacturers/businesses. It is clear from the above that the assessee has not chosen correct method for comparison of its transactions. The Hon. ITAT Muffibai L Bench in the case of UCB India Pvt. Ltd. v. ALIT 121 ITD 131 (Mum.) [2009-T11-02-ZTAT-MUM-TP] has held that section 92C read with Rule 10B(1)( e ) deals with Transactional Net Mar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide value added services, acts as, local stock points. It further stated that functional profile as well as operating parameters of the subsidiaries is significantly different vis-a-vis the same applicable to other parallel uncontrolled international transactions entered into by the assessee. All these factors stated above affects secondary sale by the AEs or non-AEs in their jurisdiction and does not affect sales made by the assessee to the AEs and Non-AEs. Functions carried out by the AEs will give better margins to them on their secondary sale but will not be having any effect on purchase price of these AEs. ( ii )The assessee himself stated that limited internal CUPS are available but stated that they are not strictly comparable even after making permissible adjustment. However, he has not explained the same any further and has not given any reason why they are riot comparable. The assessee has failed to submit details even for the application of TNM method when Assessing Officer asked him to provide product-wise margin where he stated that "we are not working out product-wise cost of production. Under the circumstances, we regret that gross profit mark up on sales separa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is-a-vis the assessee regarding its international transactions. The product profile details of first four companies out of ten companies selected by the assessee company are annexed which clearly shows that these companies are having hardly any similarity in manufacturing process or in product profile. (Annexure-B). M/s. Arti Industries Limited is engaged in benzene related compounds, polymer additives, plasticizer, etc., whereas M/s. Alkyl Amines Chemicals Limited is engaged in manufacturing amines and M/s. Deepak. Nitrite Limited is engaged in manufacturing agro chemicals, sodium nitrite, etc." It is submitted that this issue is no more rest integra in as much as in the case of Schutz Dishman Biotech (P.) Ltd. case ( supra ). The said issue was raised and answered against the Department by the Hon ble Tribunal (Ref. pgs. 24 to 29). The said view has further been reiterated in ITA No. 3590 and 3751/Ahd/2007. "(D)Wrong and irrelevant reasons given for non-application of CUP. The assessee has given following reasons due to which internal/external CUP as per it cannot be applied : ( a )Our cost of manufacturing and gross and net margin earned by us. ( b )Large quantity o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payer s special knowledge" relying upon decision of Special Bench of ITAT, Bangalore i.e., Aztec Software Technology Services Ltd. v. ACIT Cir. I( i ) [2007] 107 ITO 141 (Bang.) (SB). In view of above the TPO has given elaborate finding in this regard about non-applicability of TNM method as most appropriate method on page 11, 12 and 13 of the order. The Assessing Officer has also accepted and considered difference in prices on account of volume, FOB/CIF and issue of economic development of particular market while computing CUP for various products." It is submitted that this issue is no more rest integra in as much as in the case of Schutz Dishman Biotech (P.) Ltd. case ( supra ). The said issue was raised and answered against the Department by the Hon ble Tribunal (Ref. pgs. 24 to 34). The said view has further been reiterated in ITA No. 3590 and 3751/Ahd/2007. In any case, even in case of associate concern viz., Schutz Dishman Biotech (P.) Ltd. ( supra ) this Tribunal has upheld the very same reason given by the assessee for non-application of CUP method of ALP. It is submitted that if the same reasons have weight with the Tribunal while deciding the appeal in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r on page 11, 12, 113 and has merely stated that there was no reasonable ground for changing the method. ( iv )Considering the facts of the case, availability of internal comparables and also the discussion in the OECD report on the suitability of TNMM as the method it was held by the TPO that the Transactional Net Margin Method is not the most appropriate method for computing the Arm s Length price. Comparable Uncontrolled Price Method, used in the economic analysis for the transactions is the most appropriate method. This is further supported by OECD commentary in Para 3.49 and 3.50 which are reproduced as under : "Traditional Transaction Methods are to be preferred over transactional profit methods as a means of establishing whether a transfer price is at Arm s Length Le. whether there is a special condition affecting the level of profits between associated enterprises. To date, practical experience has shown that in the majority of cases, it is possible to apply traditional transaction methods (Para 3.49 of the OECD Report). There are, however cases where traditional transaction methods cannot be reliably applied alone or exceptionally cannot be applied at all. These wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... O has also written that this decision is in response to specific reference under section 92CA(1) and will apply to the case of assessee for assessment year 2003-04 only. In view of above ft is requested that order should be passed on the basis of facts and circumstances of each year and not on the basis of orders in earlier year." It is submitted that there are no defects in the order of CIT(A) as alleged or for the reasons for as alleged. In fact, under identical facts and circumstances and in some what identical worded CIT(A) order in the case of Schutz Dishman ( supra ), this Tribunal in a series of orders have upheld the reasoning and logic of CIT(A). If that be so, it is submitted that the order may kindly be upheld in this appeal also. In so far as OECD guidelines are concerned, it is submitted that there is paradigm shift by OECD when it comes to selection of the MAM in its latest guidelines issued in July, 2010 which is reproduced herein below for ready reference : "OECD Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations 22 July 2010 Chapter II : Transfer Pricing Methods Part I : Selection of the transfer pricing method : A. Sel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so seen that rate applied by TPO is Rs. 603 per kg, which is much more than the rate of Rs. 527 per kg, the rate at which the same goods weighing 20000 kgs. has been sold to USA AE and which has been accepted by the TPO without adjustment. Thus, this adjustment is patently wrong. 2. Ethyl Triphenyl Ph Rs. 1,72,93,050 There is no comparable instance. AO ha compared domestic sales of 55 kgs. as against 23,150 kgs. to DEL in the international market. The comparable sales are made domestically and therefore the same cannot be compared with as held by the TPO in the case of Benzyl Triethyl AM, where4e no comparative international rates were available and no adjustment was made by him. Thus, this adjustment is also incorrect. 3. Cetramid B.P. Rs. 45,000 Difference in price is less than 5% and therefore the same in any case has to be ignored. 4. Gilbenclamide BP Rs. 5,076 Difference is negligible and has to be ignored 5. Tetra Butyl AMM BR Rs. 35,93,565 The quantity sold to DEL was 1,40,100 kgs. as against 6000 kgs. sold to different non-AE parties. The marginal diff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sales to small players in South East Asian business. (4)Survival of the appellant : In order to capture and maximize its profits of the big and flourishing market of USA and Europe it has to depend on its AE only. (5)Lastly on a simple average it is 8.21 from it to its AE whereas it is 8.87 from its AE to Customers. At the weighted average rate it is 8.20 from it to its AE while it is 8.75 from its AE to customers. If the overheads as identified in the submissions to run the AE is reduced then there would be hardly any profit." 37. After going through the facts in entirety, we are of the view that the facts in the present appeals are exactly identical to the case of Schutz Dishman Biotech (P.) Ltd. case ( supra ) and this issue was answered against the revenue by this Tribunal. In any case, even in the case of associate concern viz., Schutz Dishman ( supra ) this Tribunal has upheld the very same reasons given b the assessee for non-application of CUP method of AMP and accordingly, following the Tribunal s decision, we allow the claim of the assessee, upholding the order of CIT(A) on this common issue of the revenue s appeals. This common issue of revenue s appeals is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sue of exclusion of turnover of Dishman Business Centre and Adiman Travels from the total turnover for the computation of deduction under section80HHC of the Act, the relevant facts are not available on records, hence, the same is set aside to the file of the Assessing Officer for verification and decision. 41. The next common issue in these appeals of revenue is against the order of CIT(A) in directing not to exclude miscellaneous income from the total of business while computing deduction under section 80HHC of the Act. For this, revenue in ITA No. 587/Ahd/2007 following ground No. 1( viii ) : "(1) The CIT(A) erred in law and on facts in directing ( viii )Not to exclude the misc. income of Rs. 4,29,365 from the profit to work out the adjusted profit of business while working out the admissible deduction under section 80HHC of the Income-tax Act." In ITA No. 3213/Ahd./2007 for the assessment year 2004-05 the following ground No. 8 : "The CIT(A) erred in law and on facts in directing to exclude Misc. Income of Rs. 4,29,365 from the profit to work out the adjusted profit of business while working out the admissible deduction under section 80HHC." 42. We find that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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