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2016 (9) TMI 148 - ITAT KOLKATA

2016 (9) TMI 148 - ITAT KOLKATA - TMI - Transfer pricing adjustment - MAM - Held that:- CUP method provides the most direct comparison for the purpose of determining the arm's length price of international transactions and is to be preferred over the other profit based methods. Accordingly in the instant case internal CUP method should be preferred over the external CUP method. Hence, we hold that in the instant case, the CUP Method (internal) is the most appropriate method in determining the ar .....

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he appellant. Later on, realizing the inadvertent mistake, the assessee filed a written submission before the AO dated 2nd March, 2015 praying before the AO to allow the deduction of the excess provision which was inadvertently added back. The same was turned down by the Assessing Officer on the alleged ground that the same could only be rectified by a revised return and as the appellant has not filed the revised return the same could not be entertained even after accepting the fact that the app .....

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The Appellant : Shri Soumitra Choudhury, Advocate and Smt. Rituparn Singh, AR For The Respondent : Shri G. Mallikarjula, CIT-DR ORDER PER Waseem Ahmed, Accountant Member:- This appeal by the assessee is directed against the order of Dispute Resolution Panel-2 (DRP for short), New Delhi dated 21.12.2015. Assessment was framed by DCIT, Circle-11(1) Kolkata u/s 143(3) r.w.s. 144C(13) of the Income Tax Act, 1961 (hereinafter referred to as the Act ) vide his order dated 27.01.2016 for assessment yea .....

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t customers at same prices. 2. That on the facts and in the circumstances of the case and in law, the DRP/AO erred in not appreciating that tile Comparable Uncontrolled Price ('CUP') Method would be the most appropriate method in determining the arm's length price of the international transaction involving sale of printed circuit boards by the appellant 10 AT &S AG. 3. That on the facts and in the circumstances of the case and in law, the DRP/AO failed to adopt transaction-by-tra .....

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reme Court of India in various judicial precedents of our country, although the same was specifically mentioned before the DRP during the course of proceedings. 5. Without prejudice to what we have stated hereinabove, that on the facts and in the circumstances of the case and in law, tile DRP/AO erred in confirming selection of independent companies under the TNMM at the entity level which were not functionally comparable to the appellant. CORPORATE TAX (OTHER THAN TRANSFER PRICING) 6 That all t .....

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case and in law, the AO /DRP erred in not allowing the claim made by the appellant during the course of assessment for a sum of INR 753519/- representing the negative balance of the opening and closing provision made tor diminution in the value 01 Inventories, by mechanically relying upon the decision of the Hon'ble Apex Court in the case of Goetz India Ltd vs. CIT. 8. That the appellant craves leave to add to and / or amend, alter, modify or rescind the wounds hereinabove before or at the t .....

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ntrolled Price (CUP for short) Method as suggested by the assessee. 4. The facts in brief are that assessee in the present case is a Private Limited Company and engaged in the manufacturing business of Printed Circuit Board (PCB for short). The assessee is a subsidiary of a company namely AT&S AG based in Austria. The PCB manufactured by the assessee was utilized in automotive, industrial telecommunication and medical industries. The assessee filed its income tax return declaring a loss of & .....

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or short ALP) in respect of international transactions reported in the audit report in form 3CEB as submitted by the assessee. The assessee, for the year under consideration has undertaken various international transaction inter-alia export of PCB for a value of ₹197,55,19,200/- to its AE which is under dispute. The transfer pricing study of the assessee for determining the ALP of the PCB goods exported to its AE reveals the following facts :- The assessee is performing various functions s .....

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le of the goods manufactured by the assessee. The AE places order to the assessee on the basis of the requirement of end customers on principal to principal basis. The margin for the AE is 6% as per the agreement with the assessee. Thus the function of the AE in the instant case is limited to distribution of the products manufactured by the assessee. Hence the assessee in the present case has selected the AE as TESTED PARY as it is having less functions. 4.1 The assessee owns all the tangible as .....

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y risk, environmental risk, and warranty risk. 5. In view of above the assessee was characterized as full-fledged manufacturer which assumes significant business risk associated with its manufacturing activity and on the contrary the AE can be characterized as routine distributor. Accordingly the assessee selected the TNMM as most appropriate method in relation to tested party i.e. AE in the instant case and found 25 companies of foreign countries for the comparables using AMADEUS database to de .....

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assessee and AE is at Arm Length Price. 5.1 However during the assessment proceedings, TPO observed that only 9 companies are mentioned in the TP report though the assessee claimed to have selected 25 companies. The companies selected by the assessee are in different activity such as computer, fax, printer, toner, telecommunication products, PC hardware, software, peripherals, projectors, cartridges, scanner, USB, TVs etc. but not the PCB. The Annual report, FAR analysis of the companies select .....

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as operating profit on sales. Accordingly the TPO searched for suitable comparables from different data base of public domain on certain criteria as mentioned on page 58 of the TPO order. Accordingly, the TPO worked out the average mean of PLI at 8.75% as operating profit / operating Revenue but in case of assessee operating profit / operating revenue of the entity was worked out at -27.04%. The PLI of the comparables selected is quite higher than the operating margin of the assessee. In view of .....

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lutely no reason to furnish the accepted and rejected matrix and therefore it should not be considered. PCB is electronic product and as per the notification of Department of Electronics & information technology of the Government of India has mandated the 15 items for the compulsory registration which are as below:- Electronic Games Laptop/Notebook/Tablet Plasma/LCD/LED television Optical Disc Player Microwave oven Visual display unit and video monitor Printers and plotters Scanners Wireless .....

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d telecommunication equipment and parts o Wholesale of circuit, switchboard, motherboard, chip, electronic components, parts or IC. It was submitted that the aforesaid selection of comparable companies in the same line was accepted by the then Ld. TPO during the course of hearing in the assessment year 2009-10. Accordingly the assessee prayed for the principal of consistency. 5.3 The assessee during assessment proceedings has also submitted the current year annual reports of 20 comparable compan .....

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ested party should be the one that has less complex functional analysis. In the instant case the assessee is a full fledged manufacturer and therefore it has more complex functions rather than the AE as it has less risks and its function is limited to distribution activity. The AO in the AY 2009-10 and 2010-11 has accepted the AE as tested party for carrying out foreign bench marking in relation to the aforesaid international transactions. 6. In the instant case the AE is entitled only for distr .....

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order to determine the arm s length prices of the following: Sales made by the assessee directly to third party customers (INR259811 Thousand) Sales made by the assessee to third party customers outside India through AT&S Austria functioning as distributor of the assessee (INR 1975519 Thousand) [Total sales INR 2235330 Thousand = INR 259811 Thousand + INR 1975519 Thousand] Thus, the benchmarking approach proposed by you in the aforesaid notice considering assessee as tested party leads to a .....

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ed materials which was routed through AE but the assessee submitted month-wise schedule. 2. The assessee failed to recover the direct cost associated with the production of PCB. There was gross loss @ 17.08%. 3. The assessee in the present case is acting more a contract manufacturer as its activities are majorly controlled by its AE as per cost allocation agreement. 4. The question why the assessee is selling at a price which is sufficient enough to recover the direct cost. It is also not known .....

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s the AE was treated the tested and FAR analysis of the comparable companies selected are not available. 6.1 The TPO has also not accepted the financial of the distribution segment of AE as it was not the part of annual report of the AE and it was prepared for the management only for the purpose of tax audit in India. The TPO also observed with certain defects in the financial information submitted by the assessee which are enumerated on page 73 of the assessment order. The TPO also not accepted .....

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owing Indian Accounting standards so those companies cannot be compared. With regard to the consistency of the assessee method accepted in the earlier years, the TPO held that the in case of income tax proceedings res judicata does not apply and these are year specific. The approach in the current year is better than the erroneous approach in the earlier year therefore it cannot act as estoppel on carrying out the correct analysis. Finally the TPO has rejected the AE as tested party and treated .....

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selected as the 'tested party' and accordingly margin earned by AE (segmental accounts certified by independent auditor submitted to the TPO) were compared with the distribution margins earned by various distribution companies in Europe in respect of which financial information was available in Amadeus database. The Amadeus database is administered by a globally reputed independent market research company and database provider named 'Bureau Van Dijk'. 7.1 The assessee further su .....

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sistency enunciated by the Hon'ble Supreme Court in the matter of Radhasoami Satsang v. CIT reported in 193 ITR 321. It was also submitted that AE had borne all risks of non-payment by customers who purchased the PCBs manufactured by the assessee. The assessee had borne all risks associated with the marketability of the PCBs and all the risks associated with product defects or non-conformities that existed at the time of delivery by the assessee to the warehouse of A T&S Austria. Hence, .....

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ty and warranty. All credit risk lies with foreign AE. It is responsible for getting the product manufactured from its group company having right kind of technology for the product under consideration. The foreign AE is having substantial intangibles. On the other hand, the assessee is responsible for manufacturing the product as asked for by its foreign AE. It is assured of pre-determined sale price and is not liable to end customer [or warranty etc. Though the assessee may not be in a position .....

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f taking the assessee as tested party. Various decisions of higher appellate authorities are fact specific and lay down that tested party should be such that which could be benchmarked in a more reasoned manner. The functional and risk analysis of the assessee as discussed supra is such that it not difficult to find suitable comparables from Indian database. Therefore, approach of the TPO cannot be said to be perverse or prejudicial to the assessee, The panel therefore holds that the assessee sh .....

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y indicates that something is wrong with sale price. It is also to be noted that about 89% of sales of the assessee is to the foreign AE and there is almost full capacity utilization. Why the foreign AE is selling the product at such cost which does not cover even the cost of production of the assessee. TPO is not required to examine the deal between foreign AE and foreign customers. The mandate of PO is examine international transaction which is between the assessee and its foreign AE. Here in .....

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Tiberwal Electronics Ltd. operate mainly in domestic market which is not comparable to European market where the assessee operates. The panel is of the view that TPO should have applied export income filter so as to enhance comparability analysis. The panel considers 50% export income filter to be appropriate and therefore these companies shall not be good comparables. Regarding Centrum Electronics Ltd., the assessee submitted that it has two segments, product and service. Further, a scheme of .....

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s judicial decisions that information collected by TPO cannot be used at back of the assessee. Therefore, this comparable is to be dropped. Regarding Fineline Circuit (L) Ltd., the assessee submitted that it operates in a bigger market. This objection of the assessee does not sound good as the assessee is also not a small player. Hence, this comparable is to be retained. Regarding Hind Rectifier Ltd., the assessee submitted that it deals in diverse products and hence functionally different. The .....

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1 to 982. The ld. AR before us submitted that the assessee functioned as manufacturer and supplier of printed circuit boards (hereinafter referred to as 'PCBs) during the year ended 31st March, 2011. This fact is recorded in Form No. 3CEB (page no. 778 of the paper book) for the previous year relevant to the assessment year 2011-12. The assessee exported finished goods valued INR 197,55,19,000/- to AT&S AG (Austria, Europe) during the financial year ended 31st March, 2011 for further sa .....

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see to AT&S AG for export of PCBs after deduction there from distribution commission and preliminary warranty guarantee payable by the assessee to AT&S AG at agreed rates under the Distribution Agreement (agreement being enclosed in page no. 728 of the paper book). As per the Distribution Agreement entered into by the appellant with AT&S AG, distribution commission @ 6% of gross distributor's price was payable by the appellant to AT&S AG for receiving distribution services in .....

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the appellant by AT&S AG to independent customers. It was also submitted that the total amount of deduction made by AT&S AG for preliminary warranty guarantee exceeded the actual warranty expenses incurred by AT&S AG during the relevant financial year and the excess deduction was returned by AT&S AG to the appellant as recorded in Form No. 3CEB. The distribution commission and preliminary warranty guarantee were thus netted off against sales in the books of the appellant and duly .....

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paper book] and subsequently to the DRP [enclosed in page no. 243 to 246 (computation) and 201 to 231 (copies of back-toback invoices on sample basis) of the paper book] during the course of respective proceedings. Your Honors may please note that neither the DRP nor the TPO disputed the aforesaid facts in their respective orders. 9. The ld. AR has furnished here in below some important clauses of the 'Distribution Agreement' in order to substantiate that the appellant functioned as a fu .....

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e refer to page no. 730 of the paper book), the appellant was responsible for the management and insurance of all shipments, including, without limitation, shipping costs, marine insurance and customs duties until such time as shipments were delivered to the warehouses of AT&S AG. From and after the time such shipments were delivered to the warehouses of AT&S AG, it was the responsibility of AT&S AG for its management and insurance of any inventory. Thus, the appellant was exposed to .....

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the appellant to the warehouses of AT&S AG. In view of this, AT&S AG retained preliminary warranty guarantee @2% of gross distributor's price out of the acn.ai warranty expenses as recorded in Form No. 3CEB. • Credit Risk: Since the international transaction involving export of PCBs by the appellant to AT&S AG constituted 'Sales' and title of the PCBs was passed on to AT&S AG from the appellant when the PCBs were delivered by the appellant to the warehouses of A .....

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oods by the appellant to AT&S AG is at the arm's length principle as per the Indian Transfer Pricing Regulation under the CUP Method. In the instant case, AT&S AG earned income from the international transaction involving payment of distribution commission by the appellant to AT&S AG in return for distribution services received by the appellant from AT&S AG under the 'Distribution Agreement' during the relevant financial year. In view of the above it can be concluded .....

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R' of full-fledged manufacture and supply of PCBs. It may please be noted that for the assessment year 2011-12, the TPO raised the issues which had already been approved and settled at rest by the Income Tax Department in respect of the assessment year 2009-10 and 2010-11. In this connection, attention may please be invited to the decision given by the Hon'ble Supreme Court of India in the matter of Radhasoami Satsang v Commissioner of Income Tax reported in 193 ITR 321 (SC) wherein the .....

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e at all appropriate to allow the position to be changed in a subsequent year. On these reasonings, in the absence of any material change justifying the Revenue to take a different view of the matter - and, if there was no change, it was in support of the assessee - we do not think the question should have been reopened and contrary to what had been decided by the Commissioner of Income-tax in the earlier proceedings, a different and contradictory stand should have been taken. "Parties are .....

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the adjustment of INR 69,30,53,3971/- directed by the DRP and made by the AO in the final assessment order has no valid basis in view of various decisions rendered by the Hon'ble Tribunals of our country, wherein the Hon'ble Tribunals have Honoured the 'principle of consistency' enunciated by the Hon'ble Supreme Court of India and directed bench marking of an international transaction on 'transaction-by-transaction' basis. The Hon'ble Tribunals in various decisio .....

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ld be accepted. Alternatively the AR also submitted that in case the assessee is treated as the tested party then CUP method should be applied for the determination of ALP. As the price charged by the assessee is same as the price charged by the AE from its customers then the same price should be taken as ALP in the instant case. Finally it was humbly prayed to delete the aforesaid adjustment and to provide full relief to the assessee. 10. On the other hand the ld. DR submitted that the Indian p .....

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ted party is the one to which a 57 transfer pricing method can be applied in the most reliable manner and for which the most reliable comparables can be found, i.e. it will most often be the one that has the less complex functional analysis. 3.19 This can be illustrated as follows. Assume that company A manufactures two types of products, P1 and P2, that it sells to company B, an associated enterprise in another country. Assume that A is found to manufacture P1 products using valuable, unique in .....

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P2 transaction, B only performs simple functions and does not make any valuable, unique contribution in relation to the transaction. The tested party for the P2 transaction would most often be B. 10.1 The ld. DR also relied in the order of Hon ble Delhi High Court in the case of Sony Ericsson & others [TS-96-HC-2015(DEL)-TP] Therefore, it is highly imperative that while applying relevant methodologies in selection of most appropriate method , undertaking aggregate v. transaction-by-transacti .....

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attendant circumstances, risk management strategies, data on comparables and the market (in terms of the geographic location; the size of the markets; the extent of competition in the markets and the relative competitive positions of the buyers and sellers, etc.) and other economic conditions, at the time of audit to substantiate the various claims / averments and pass the litmus test . Such an approach would go a long way to avert protracted litigation and gain certainty in an ever-evolving fi .....

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xample, transaction for import of raw material for manufacturing may not be aggregated with distribution activity due to absence of the close linkage. The High Court held that it would be inappropriate to proceed with Arm s Length Price determination with a pre-conceived supposition that each transaction must be analysed separately. The High Court also observed that in case the tested party is engaged in single line of business, there is no prohibition in applying Transactional Net Margin Method .....

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sistency. 5. Selection of independent companies under the TNMM at the entity level. In this regard, counter arguments against the above submissions of the appellant are given as under :- 1. Application of CUP method: At the outset, it is brought to the notice of the Hon'ble Bench that the appellant itself has adopted TNNM method in its transfer pricing study. The appellant has come up for the first time before the Hon'ble ITAT to apply CUP method for determining the arm's length pric .....

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eparate transaction (Sale) by the TPO as well as DRP, the appellant now, before the Hon'ble Tribunal pleaded to bench mark the export transaction separately under the CUP method. 1.1 In this regard the appellant has relied on the decision of the Hon'ble Mumbai Tribunal in the matter of Mattel Toys (I) (P) Ltd. vs. Deputy Commissioner of Income Tax, Circle-6(3) reported in [20131 34 taxmann.com 203 (Mumbai Trib.) .Further, the appellant has relied on various judicial decisions in its writ .....

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hods. Reliance is placed in this regard on the following decisions: - Aztec Software & Technologies Services Ltd. vs. Asstt. CIT [2009] 107 ITO 141/162 Taxman 179 (Bang.)(SB) - UCB India (P) Ltd. v. Asstt CIT [2009130 SOT 95 (Mum.) - Gharda Chemicals Ltd. v. Dy. CIT [2070135 SOT 406(Mum.) - Intervet India (P) Ltd. v. Asstt CIT [2070139 SOT 93 (Mum.) - Asstt. CIT v. Dufon Laboratories [2070139 SOT 59 (Mum.) 2.7.76. Reliance in this regard is also placed on the decision of Hon 'ble Mumbai .....

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hat particular case, the CUP method is to be preferred. The reason is simple. When associated enterprises enter into a transaction at such conditions in commercial and financial terms, which are different from commercial and financial terms imposed in comparable transaction between independent enterprises, the differences in these two sets of conditions in financial and commercial terms are attributed to inter relationship between the associated enterprises, and it is this impact of interrelatio .....

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ia (P) Ltd. v. Dy. CIT reported in [20 IlJ 10 taxmann.com 249, inter alia held that: "7. In the case of Serdia Pharmaceuticals India (P) Limited, it has been held that CUP method is a preferred method and it leads to more reliable results vis-a-vis the results obtained by applying transaction profit method. In the case of SNF (Australia) Pty. Limited, it has been held that the "focus is on the market in which products are acquired." The ratio of this case is applicable mutatis-mut .....

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th the AE. However, the external CUP method disregards the price charged or paid by the appellant to or from its unrelated parties and contemplates the comparison of the price so charged from or paid to its AE with some external dependent reliable price data under similar circumstances of transactions with AE. Ordinarily the Internal CUP method should be preferred over external Cup method as it neutralizes several distinguishing factors, such as the local factors and the economies available or u .....

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omparison has to be made with respect to product, function, risks and identical circumstances, market conditions and contractual terms. The foremost requirement under CUP method is high degree of comparability between products. 1.3 It is important to consider the relevant portion of Rule 10B(1), 10B(2) and Rule 10B(3) of the Rules in harmonious manner which states that for application of the CUP method it is essential to follow the following steps: - i. Identify price charged under uncontrolled .....

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il. iii. Adjust the price charged under uncontrolled transactions for difference on account of above referred comparability parameters. The above would be essential as the uncontrolled transaction will be akin to international transaction only if reasonably accurate adjustments can be made to eliminate the material effects of such differences. iv. Finally, if it is not possible to make reasonably accurate adjustments to eliminate the material effects of such differences or there exist difference .....

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y cannot be compared with the price at which the same product is sold in another country because of the impact on account of geographical differences i.e. country specific demand/ supply factors, market conditions, regulations and government orders in force, level of competition, availability of substitute products, consumer purchasing power, etc. which have a bearing on the price. ii. Difference in Credit risk The Appellant faces minimal credit risk on sale of finished products to its AEs, beca .....

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t on sales made to its AEs, from the date of the airway bill. Whereas, the credit period offered to third parties is 45 days from the date of airway bill invoice. The aforesaid differences also have an impact on the pricing at which the products are sold by the Appellant to its AEs/ third parties. iv. Difference in Sales volume Quantity sold to the AE is almost 88 percent of total sales and the quantity sold to the third party constitute minimal. v. Marketing function It is important to note tha .....

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ments to iron out the differences between the two transactions (i.e. sales to AEs and sales to third parties), and hence the CUP method was not considered as the most appropriate method by the appellant. 1.5 Further, the Hon'ble Pune Bench of ITAT in the case of Amphenol Interconnect India Private Limited v. DCIT (ITA No. 1548/PN/2011) has upheld that- CUP cannot be considered as the most appropriate method where there are differences, and reliable and accurate adjustments cannot be made to .....

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comparison cannot be made at all. Further, in Appellant's case also, 88% of the transaction has been accepted at ALP by choosing TNMM as the most appropriate method and hence, there is no reason to apply CUP method for bench marking part of the export transaction. 1.7 The decisive factor, on the basis of which comparability is to be judged, is the state of 'conditions prevailing in the markets in which the respective transactions to the parties operate I. Unless market conditions, in whi .....

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location and size of market (b) overall economic development and level of competition in the market; and (c) whether the market are wholesale or retail. The true test, therefore, is whether the market in which uncontrolled transactions have taken place are materially different than the market in which controlled transactions have taken place. In a situation in which there are indeed material differences, including, of course, for the reason of geographical location and size of markets, those un .....

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base that a taxpayer realizes from a controlled transaction - Costs - Sales - Assets - other relevant base • Most frequently used method - In India, due to lack of availability of comparable uncontrolled prices and gross margin data required for application of the comparable uncontrolled price method / cost plus method / resale price method • Level of Comparability - Broad level of product comparability - High level of functional comparability 1.8.2 The UN TP manual offers the followin .....

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pares net margins by using certain ratios (PIs) to express, new profit as a % of a given base which commonly includes operating cost, operating income, total assets, operating income, total assets, operating expenses, etc. TNMM is similar to RPM and CPM to the extent that it involves a comparison of margins earned in a controlled situation with margins earned from comparable uncontrolled situations. However, TNMM differs from RPM and CPM to the extent that it involves comparison of margins at ne .....

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ested party.) d. It is not necessary to restate the books and records for all participants on a common basis or to allocate costs as is the case with PSM. e. The differences in functions performed between enterprises are often reflected in variation in operating expenses. Consequently, enterprises may have wide range of gross profit margins but it may still earn broadly similar level of net pro-its, f. Because TNMM is applied to the less complex party, it can be used even though one of the relat .....

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TNMM is applicable to either side of the controlled transaction (i.e. related party manufacturer or the distributor). The case laws relied upon by the appellant also state that the ultimate aim of the transfer pricing is to examine whether the price or margin arising from international transaction with related party is at ALP or not. The various judicial decisions relied upon by the appellant hold that the most appropriate method shall be adopted. In the instant case, since, profit derived by t .....

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L-790-ITAT-MUM) is misplaced. In the case of Gharda Chemicals Ltd. V. DCIT (Mum) (2009-TIOL-790-ITAT-MUM) the issue was application of international CUP or external CUP method in determining the price of the goods and not the profit or margin on the exports of goods Foreign AE. 2. Transactions by Transactions approach: It is better to appreciate the concept by the transaction by transaction basis or bundled approach. Section 92C(1) of the Income Tax Act, 1961 (the Act) requires that arm's le .....

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nes 'transaction' to include a number of "closely linked transactions". 2.1. Therefore, on combined reading of the aforementioned provision, it is discernible that ALP is essentially to be determined on transaction-by- transaction approach for each international transaction; and for that purpose, a transaction in singular may also include plural for closely linked transactions. 2.2 In this regard the Indian Courts and Tribunal and analyzed and discussed the concept of the bundl .....

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e of evaluation these have to be aggregated. 2.2.2 .The aggregation and clubbing of closely linked transactions is permitted under Indian transfer pricing legislation. Section 92C(1) of the Income Tax Act, 1961 speaks about "nature of transaction or class of transaction". Further the terms "transaction" itself is defined in Rule 10A(d) of the Income Tax Rules, 1962 to include a number of "closely linked transactions". 2.2.3 The OECD transfer pricing guidelines .Para .....

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me with the Indian regulation. The High Court observed that expression "class of transaction", "functions performed by the parties" under section 92C( 1) of the Act, illustrate that the word "transaction" includes a bundle or group of connected transactions. Clubbing of closely linked, which include continuous transactions, may be permissible under the Act and the taxpayer can aggregate the controlled transactions if the transactions meet the specified common portfo .....

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ing the price of the final product. Therefore, the transaction between the service provider and its clients is to provide software development services and is not to provide man hour services. This transaction involves number of transactions which are so closely linked or continuous in nature and arising from the continuous transaction of supply of services that the price of one transaction cannot be determined independently without having been influenced on the price of the other closely linked .....

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bing and aggregating the transaction is based on the premise that such transactions influenced by each other and particularly determining the price and profit involved in the transactions then such transactions can safely by regarded as closely linked transactions. The OECD guidelines have referred a portfolio approach as business strategy consisting of tax payers bundling certain transaction for the purpose of earning an appropriate return across portfolio rather than a single product. The trib .....

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and warranty payments in connection with export of PCBs to AE as distinct transactions and would like to determine the price by transaction by transaction basis. It is pertinent to mention here that the appellant has to pay commission and warranty to AE purely on account of export transaction without the goods being exported the appellant has no occasion to make payment of commission and warranty. The payments of commission and warranty are inextricably related to export transaction. In other w .....

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Tata Motors European Technical Centre Plc. V. Assistant Director of Income Tax reported in (2014) 52 Taxman. Com 411 (Mumbai - Tribunal). (ii) General Motors Indian (P) Ltd. Vs. Deputy Commission of Income Tax / Assistant Commissioner of Income Tax reported in [2013] 37 Taxman . Com. 403 (Ahmedabad - Tribunal) (iii) Development Consultants (P) Ltd. Vs. Deputy Commissioner of Income Tax reported in [2008] 23 SOT 455 (KOL). 3.1. In Tata Motors case services for rendered by UK (Foreign AE to Indian .....

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e of the appellant. In the above judicial decisions, it has been held that (i) 'The tested party may be a local or foreign entity i.e. one party to the controlled transaction. (ii) 'The selection of tested party has to be consistent with the functional analysis of the controlled transaction (i.e. transaction-by-transaction approach.) (iii) The tested party is the least complex party to the controlled transaction in respect of which relevant data for comparison are available in public dom .....

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on of Mumbai Tribunal in the case by onward technologies Ltd (2013)35 taxman.com 584 (Mum) is more relevant to the facts of the present case. For the convenience of understanding the brief facts or above case are reproduced as under: 1. Assessee is parent company 0; Onward Technologies Inc., USA and Onward Technologies Gmbh, Germany. 2. Onward group is global provider of Engineering software Development services and solutions to end users. 3. During the relevant previous year, assessee rendered .....

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arty, adopted TNMM as appropriate method and did TP study by comparing NP profit margin of foreign AE with six foreign companies doing similar activities. 6. TPO held that price determined by assessee in providing IT enables services is not in accordance with 92C( 1) & 92C(2) and rejected assessee TP study. The issue before Tribunal was can Foreign AE be taken as Tested party for TP study held Foreign AE cannot be taken as tested party by explaining TP law in India as under: (a) Section 92( .....

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tion to cost incurred or sale effected or assets employed or having regard to any other relevant base. (d) The modus operandi of determining ALP of an international transaction under this method is that firstly, the profit rate earned by the assessee from a transaction with its AE is determined (say, profit A), which is then compared with the rate of profit of comparable cases (say, profit B) for ascertaining as to whether profit A is at arm I s length vis-a-vis the profit. (e) However, in so fa .....

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s. So, it is the profit actually realized by the Indian assessee from the transaction with its foreign AE which is compared with that of the comparables. There can be no question of substituting the profit realized by the Indian enterprise from its foreign AE with the profit realized by the foreign AE from the ultimate customers for the purposes of determining the ALP of the international transaction of the Indian enterprise with its foreign AE. 2.3. Further in the following case also the tribun .....

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ed party. While arriving at its conclusion, IT AT categorically held that under transactional net margin method ("TNMM"), it is the net margin earned by the Indian assessee and not it's foreign AE which is compared with that of the comparable companies. The IT AT interpreted the meaning of word 'enterprise' used in Rule 1 OB( 1 )(e) of the Income tax rules, 1962 ("Rules") (which describes the manner of application of TNMM) as 'Indian entity'. The Hon'b .....

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ty may be sustained. Further as observed by the DRP in its order at page No. 9 Para 6.2, the findings of the DRP are reproduced as under. 6.2. The panel has examined FAR analysis of the assessee and its foreign AE. It is seen that foreign AE is gathering business by obtaining orders from potential customers abroad. It is negotiating sale pride with customers and is liable to customer regarding product quality and warranty. All credit risk lies with foreign AE. It is responsible for getting the p .....

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onsidering function and risk analysis as above, it can be said that the assessee is more close to contract manufacturer. In no way, it can be inferred that foreign AE is doing less complex activities. The assessee is just manufacturing the product as guided / directed by its foreign AE. The assessee is not holding any significant intangibles. Therefore, the panel does not find fault with approach of TPO of taking the assessee as tested party. Various decisions of higher appellate authorities are .....

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ished complete annual reports of its foreign AE and other comparables taken by it in its TP study report in the absence of which benchmarking foreign shall not be practical. The distribution segmental data of AT&S Austria as furnished by the assessee is not audited one. TPO has also worked out on page 71 para 25 of his order that the assessee had not been able to recover its direct cost of manufacturing which clearly indicates that something is wrong with sale price. It is also to be noted t .....

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the assessee to its foreign AE. 4. Rule of consistency: i. Firstly, the rule of consistency is applicable only with respect to any method of accounting treatment. ii. Secondly, as the subject of transfer pricing is evolving day by day, rule of consistency may not be strictly applicable. iii. Thirdly, the TPOin his order has discussed on the issue of consistence by referring to the comments made by Hon' ble Justice P. N. Bhagavati (Page No. 193 to Paper Book). iv. Lastly, the appellant cannot .....

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bles. The findings of the DRP may be considered as the arguments against the submission of appellant with respect to the comparables. 6. Conclusion: 1. The most appropriate method for determining ALP of international transaction entered into by the appellant with AE is TNMM method in view of the reasons mentioned above. 2. As per the facts of the case the TPO rightly selected the appellant as tested party as against Foreign AE and applied TNNM method. The above view of the TPO is supported by th .....

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so discussed in his order on non applicability of rule of consistency. 5. On the issue of comparables .the order of DRP has considered the arguments of the appellant and the directions of DRP hold good. Finally, The ld. DR supported the order the lower authorities. 11. We have heard the rival contentions of both the parties and perused the materials available on record. From the foregoing discussion we find that the TPO has made an upward adjustment for ₹ 69,30,53,397/- of the goods export .....

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logies Limited Vs DCIT 35 taxmann.com 584 wherein it was held as under : A conjoint reading of the above provisions indicates that firstly, a transaction between two or more associated enterprises is called an international transaction; secondly, any income from such international transaction is required to be determined at ALP; thirdly, the ALP in respect of such international transaction should be determined by one of the prescribed methods, which also include the TNMM. Under this method, the .....

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on under this method is that firstly, the profit rate earned by the assessee from a transaction with its AE is determined (say, profit A), which is then compared with the rate of profit of comparable cases (say, profit B) for ascertaining as to whether profit A is at arm's length vis-à-vis the profit B. If it is not, then the transfer pricing adjustment is made having regard to the difference between the rates of profit A and profit B. The rate of profit of comparable cases (profit B) .....

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rule 10B. The natural corollary which, thus, follows is that under no situation can the calculation of 'profit A' be substituted with anything other than from the international transaction, that is, a transaction between the associated enterprises. So, it is the profit actually realized by the Indian assessee from the transaction with its foreign AE which is compared with that of the comparables. There can be no question of substituting the profit realized by the Indian enterprise from i .....

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ion between the Indian and foreign AE at arm's length. The contention of the ld. AR in considering the profit of the foreign AE as 'profit A' for the purposes of comparison with profit of comparables, being 'profit B', to determine the ALP of transaction between the assessee and its foreign AE, misses the wood from the tree by making the substantive section 92 otiose and the definition of 'internal transaction' u/s 92B and rule 10B redundant. This is patently an unacc .....

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in the case of Cybertech Systems & software limited Vs. ACIT (33 taxmann.com 371) wherein the assessee had tried to justify the arm s length value of the transaction on the ground that the overseas AE had been incurring losses on the margin retained from the assessee. On appeal, the Tribunal rejected the assessee s argument that such transactions have to be considered at arm s length on ground that there is no shifting of profits. The Tribunal categorically held that the assessee i.e., the .....

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AP which is different from Indian GAAP. Accordingly the method of accounting, allocation of costs, recognition of revenue etc. differ for making the comparison. In the instant case we need to determine the ALP of the transaction between the assessee and AE for the export of the PCB. Therefore the tested party will be the Indian Party. In view of above we find no reason to interfere in the order of DRP. Hence the assessee has rightly been treated as tested party. With regard to the TNMM method ad .....

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lation to an international transaction [or a specified domestic transaction] shall be determined by any of the following methods, being the most appropriate method, in the following manner, namely :- (a) comparable uncontrolled price method, by which,- (i) The price charged or paid for property transferred or services provided in a comparable uncontrolled transaction, or a number of such transactions, is identified; (ii) Such price is adjusted to account for differences, if any, between the inte .....

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led transaction has not been defined in the Act and the Rule. As per clause of rule 10A of the Rules, an uncontrolled transaction means a transaction between enterprises other than associated enterprises, whether resident or non-resident. The term 'comparable uncontrolled transaction' has been defined in the OECD Transfer Pricing Guidelines for Multinational Enterprises and Tax Administration, July 2010 (hereinafter referred to as the 'OECD Guidelines), which inter-alia reads as unde .....

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er alia defines the CUP Method as follows: Comparable uncontrolled price (CUP) method A transfer pricing method that compares the price for property or services transferred in a controlled transaction to the price charged for property or services transferred in a comparable uncontrolled transaction in comparable circumstances. " 11.1 We also find support from the decision of the Hon'ble Mumbai Tribunal in the matter of DCIT vs. Isagro (Asia) Agrochemicals (P.) Ltd reported in [2013] 31 .....

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charged or paid to the AEs is at ALP or not It is more so when such comparable uncontrolled transactions is internal. When similar goods as traded with AEs constituting international transactions are traded with Non-AEs, it always proper to consider the price of goods traded with non- AEs, for benchmarking price of good traded with AEs. In our considered opinion the Id. CIT(A) was justified in upholding the preference of CUP method over TNMM. " In the instant case, the transactions involvin .....

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ices at which PCBs were sold by AE to independent customers. Thus the international transaction involving sale of finished goods by the assessee to AE adheres to the arm's length principle embodied in the Indian Transfer Pricing Regulation under the CUP Method. Besides the above the assessee has submitted back to back invoices and on which no adverse comment has been passed by the lower authorities on its genuineness. It was also observed that the financial distribution segment report of AE .....

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,10,0001- with regard to the commission and preliminary warranty guarantee. Transfer Pricing Study was silent about the method for benchmarking the gross prices receivable by the appellant from AE for export of PCBs. But the DRP identified the aforesaid export as a separate transaction ('Sale') and confirmed the application of the TNMM at the entity level. However, we find that the DRP should have applied the method which is the most appropriate and in the instant we have already held th .....

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it cannot resort to change its method at an assessment or appellate stage. In our opinion, such a contention cannot be upheld because if it is found on the facts of the case that a particular method will not result into proper determination of the ALP, the TPO or the appellate authorities can very well hold that why a particular method can be applied for getting proper determination of ALP or the assessee can demonstrate a particular method to justify its ALP. Thus, even if the assessee had adop .....

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determination of approximate ALP is the key factor for which most appropriate method is to be followed. Therefore, if at any stage of the proceedings, it is found that by adopting one of the prescribed methods other than chosen earlier, the most appropriate ALP can be determined, the assessment authorities as well as the appellate Courts should take into consideration such a plea before them provided, it is demonstrated as to how a change in the method will produce better or more appropriate AL .....

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related party is at arm's length price (in short, 'ALP) or not. Accordingly, even if an assessee has adopted TNMM as the most appropriate method in the transfer pricing report, then also it is not precluded from raising the contentions/objections before the assessment authorities and the appellant Courts that such a method was not an appropriate method and is not resulting into proper determination of ALP and some other method should be resorted. In view of the principle enunciated by t .....

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d vs. ACIT reported in [2013] 36 taxmann.com 41 (Delhi - Trib.), wherein the Hon'ble Tribunal inter alia held that: 6.5 The CUP method provides the most direct comparison for the purpose of determining the arm's length price of international transactions and is to be preferred over the other profit based methods. Reliance is placed in this regard on the following decisions: - Aztec Software & Technologies Services Ltd. v. Asstt. CIT [2007] 107 ITD 141/162 Taxman 119 (Bang.) (SB) - UC .....

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e priority of applications of methods for the determination of ALP, has held as under: "64... as long as CUP method can be reasonably applied in determining the arm's length price of an international transaction in a particular fact situation, and unless another method is proven to be more reliable a method vis-a-vis the fact situation of that particular case, the CUP method is to be preferred. The reason is simple. When associated enterprises enter into a transaction at such conditions .....

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the impact of interrelationship between AEs on the price at which the transactions have been entered into by such AEs. " Relying on the decision of Serdia Pharmaceuticals India (P.) Ltd. (supra), the Hon'ble Delhi Tribunal in the case of Clear Plus India (P.) Ltd. v. Dy. CIT reported in [2011] 10 taxmann.com 249, interalia held that: "7 .... In the case of Serdia Pharmaceuticals India (P) Limited, it has been held that CUP method is a preferred method and it leads to more reliable .....

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arables. The relevant extract of the judgment is furnished here in below: "Internal CUP method envisages comparing the uncontrolled transactions of the appellant itself with other unrelated parties so as to determine the ALP with the AE. However the External CUP method disregards the price charged or paid by the appellant to or from its unrelated parties and contemplates the comparison of the price so charged from or paid to its AE with some external independent reliable price data under si .....

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etermining the arm's length price of international transactions and is to be preferred over the other profit based methods. Accordingly in the instant case internal CUP method should be preferred over the external CUP method. Hence, we hold that in the instant case, the CUP Method (internal) is the most appropriate method in determining the arm's length price of the international transaction involving export of PCBs by the assessee to AE and accordingly, delete the adjustment of INR 69,3 .....

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ue of inventories. 14. The assessee was making the provisions for diminution in the value of inventories on year to year basis by debiting the profit & loss account. The assessee was consistently disallowing the amount of said provision debited in the profit & loss account in the computation of income. However for the year under consideration the opening balance of the provision for diminution in the value of inventories was INR 6,60,23,000/- and the closing balance of the provisions was .....

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no provision under the income tax Act to make any change in the return of income by way of application without filing the revised return. 15. Aggrieved assessee preferred an appeal to DRP who has upheld the order of the AO by observing as under : DRP has duly examined the issue. It is seen that the assessee ha s not filed any revised return with respect to its claim of non-taxability of provision added to taxable income in ROI. Accordingly, relying upon ratio of decision of Hon'ble Supreme .....

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the closing balance of the provision. The said principles have been accepted by the AD in all the prior years. In the assessment year under consideration, Your Honors may please note that the opening balance of the provision for diminution in the value of inventories was INR 6,60,23,0001/- while the closing balance of the provisions was INR 6,52,75,0001/- thereby leading to an excess provision of INR 7,53,519/- being created during the year which was otherwise entitled to deduction from the comp .....

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al contentions of both the parties and perused the material available on record. In the instant case, the assessee inadvertently added back the negative balance of the opening and closing provisions made for diminution in the value of inventories in the return filed which should have otherwise reduced from the total income of the appellant. Later on, realizing the inadvertent mistake, the assessee filed a written submission before the AO dated 2nd March, 2015 praying before the AO to allow the d .....

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n, we rely in the decision of the Hon'ble Calcutta High Court rendered in the case of CIT vs. Bhaskar Mitter reported in 73 Taxman 437 (Cal) wherein the Hon'ble Court has held as under: "The revenue authorities in our view cannot be heard to say that merely because the assessee has returned a figure which is higher that the annual value determined in accordance with the correct legal principles, such higher amount and not the correct amount should be lawfully assessed. An assessee i .....

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