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Deputy Commissioner of Income-tax, Circle-3 (1) , New Delhi Versus Bio Rad Laboratories (India) (P.) Ltd.

Transfer pricing adjustment - mandatory comparability analysis - Held that:- Transfer Pricing Officer has also adopted transactional net margin method (TNMM) as the most appropriate method and selected 7 comparables without carrying out FAR analysis of those comparables with the assessee. Therefore there is basic flaw in the transfer pricing mechanism adopted by the ld. Transfer Pricing Officer. Moreover, he has also not given an opportunity to the assessee to comment on the comparables selected .....

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e authority is erroneous as it relied on the stayed judgment. The Hon'ble Karnataka High Court vide its order dated 16.02.2009 has stayed the operation of the judgment on which the first appellate authority has relied upon. Though the Hon'ble High Court admitted the several questions of the law but stayed the whole of the judgment of the coordinate bench. Hence, we reject the contention the ld. AR that the decision of the coordinate bench is stayed to the limited extent. In view of above facts i .....

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ty in the order of the ld CIT(A) in allowing the claim of deduction of the depreciation to the assessee as assessee owns the assets and also uses it for the purposes of its business. The revenue's another aspect of this ground is that ld CIT(A) has admitted the affidavit of the assessee before him. We have perused the order of the ld CIT(A) wherein the affidavit only says that the assessee has not received any rent or installment on account of these machines. We reject the argument of the revenu .....

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Ltd [2010 (8) TMI 58 - DELHI HIGH COURT ] - Decided against revenue - Disallowance of seminar expenses - Held that:- CIT(A) has held that these are the expenses for the marketing of new products launched by the assessee in the same line of business. They are routine in nature and further the decision of Hon'ble Supreme Court in case of Madras Industrial Investment Corpn. Ltd. v. CIT [1997 (4) TMI 5 - SUPREME Court ] does not apply to the facts of the case. We do not find any infirmity in the .....

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A). - Decided against revenue - IT APPEAL NOS. 3284,3330 (DELHI) OF 2010, 412 & 4712 (DELHI) OF 2011, 2466 (DELHI) OF 2012 AND 1266 (DELHI) OF 2013 - Dated:- 19-9-2016 - I.C. SUDHIR, JUDICIAL MEMBER AND PRASHANT MAHARISHI, ACCOUNTANT MEMBER For The Appellant : Amit Raj, Sr. DR Vishal Kalra, Adv., Amit Bablani, CA, Ms. Khyal Dadwal, Adv. and Sahil Gupta, CA for the Respondent. ORDER Prashant Maharishi, Accountant Member - These are the appeals filed by the revenue against the order of the ld. CIT .....

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as to establish the application of the profit split method. 2. Whether in the facts and circumstances of the case, the Ld. CIT(A) has erred in applying the judgment of M/s Philips Software, M/s Sony India and the premises of circular 12 and 14 of 2001 in this. 3. Whether on the facts and circumstances of the case, the Ld. CIT(A) has erred in making subjective observations without examining the issues proving to the contrary relating to selection of comparables, usage of contemporaneous data and .....

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ocal market. In life science group assessee receives commission on direct sales made by the associates enterprises in Indian Market. The assessee provides after sales support services of equipment sold in the Indian Market for both the segments by its service engineers. 4. For the AY the assessee filed its return of income declaring income of ₹ 7604070/- on 30.10.2002. The ld. Assessing Officer made a reference to the ld. Transfer Pricing Officer to determine arm's length price of the .....

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Method based on the functions performed and risk undertaken and ascertained profit split ratio of 22.33 : to 8.71 ( AE : Assessee) and therefore, 30% of the residual profit was allocated to the assessee and 70% to the holding company. It was contended that the functions of the assessee are only of sales office of gathering market information, presenting the products particulars to the customers and coordinating in obtaining purchase orders. Therefore, it does not have any commercial risk involv .....

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e considered by the assessee only for the purposes of distribution function of clinic diagnostic unit and no expenses were allocated to the life science division. Therefore, according to the ld. Transfer Pricing Officer the transaction is benchmarked comparing the profit of AE with the receipt of commission without looking at the real profit of the life science segment of the assessee. Therefore, he rejected the bench marking analysis of the assessee of commission income. According the ld. Trans .....

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stment of ₹ 5509135/- was proposed. Based on this the ld. Assessing Officer incorporated the same in his final assessment order. Over and above this ld. Assessing Officer disallowed depreciation on computers claimed by the assessee @ 60% which is allowable to the assessee according to the ld. Assessing Officer @ 25% only and therefore, addition on account of depreciation was computed at ₹ 49053/-. Consequently, order u/s 143(3) of the Income Tax Act was passed by the ld. Assessing Of .....

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e transfer pricing adjustment. He further held that depreciation @ 25% is allowable on UPS, scanner and printers and @ 60% depreciation is allowable on computers only therefore, he dismissed the appeal of the assessee on this ground. Therefore revenue is in appeal before us against the deletion of transfer pricing adjustments deleted by ld. CIT (A). 7. The ground Nos. 1 to 3 of the appeal of the revenue was with respect to the transfer pricing issues and also applicability of circular Nos. 12 an .....

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es are identical to the market support services hence it is appropriate for benchmarking of commission income. He further submitted that the decision of Bangalore Bench of tribunal in case of Philips Software Centre (P.) Ltd. (supra) has been stayed by Karnataka High Court and therefore the decision of the ld CIT(A) relying on that decision is erroneous. 8. Against this the ld Authorised representative submitted that the ld Assessing Officer has not recorded his satisfaction which is mandatory b .....

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ction of ld AO which has been accepted by the revenue. For the purpose of justifying the PSM he submitted a chart which was placed at page No. 75 of the PB submitting that the approach adopted by the assessee is correct. He further referred to page No. 73 of the PB to show the FAR analysis between parent and subsidiary and submitted that the assessee assumes no commercial risk and also do not undertake any responsibility of development, manufacturing distribution warranty and storage and financi .....

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and therefore, the order of the ld. Transfer Pricing Officer required to be set aside. 9. We have carefully considered the rival contentions and also perused the relevant material placed before us. The ld. First appellate authority has decided this issue as under : '5.8 I have carefully gone through the Assessment order and the various submissions of the appellant. In fact the Assessing Officer/Transfer Pricing Officer were given copies of the submissions made by the appellant so any objecti .....

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d by the company to earn commission income based on the turnover of the two segments of business of the appellant without taking into consideration other factors like functionality, working capital requirements and risk analysis is invalid in law and needs to be struck down. The TPO has completely ignored all the documents and information placed before him in support of their claim for bifurcation of expenses. The appellant places reliance on the order the case of Philips Software Centre Pvt. Lt .....

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nt whereas the conditions of section 92C(3) clearly stipulate that the AO may proceed to determine the ALP if he is of the opinion that certain conditions have been satisfied. Reliance is placed on the circular No. 12/2001 dated 23/8/2001 issued by the CBDT, wherein the following has been mentioned is binding on the AO. "it should be made clear to the concerned Assessing Officers that where an international transaction has been put to scrutiny, the Assessing Officer can have recourse to sub .....

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tion 92C that has been invoked by them to reject the ALP, thereby rendering their calculations bad in law. (iii) Transfer Pricing Officer in his order in his discussion under the head commission received- Life Sciences division has wrongly mentioned that: "the assessee has admitted that similar products are being sold under both the segments and the same have been compared under CUP method followed by the assessee, it will be incorrect to assume that the entire general administration, marke .....

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erprise with the gross receipt of commission without examining the real profit of the segment prima facie are wrong. In case by real profit it is to be understood that inter-segmental expenses are to be considered, then the observations are mis-conceived. In fact no such provision has been contemplated and thus not prescribed in law. The appellant has strictly followed the rule while computing the income from commission on the basis of profit split method. In fact it was explained that the profi .....

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delines it was the assessee's judgment as to which method was most appropriate to his business. The appellant further explained, that since data of comparable companies was not available TNMM method was not suitable in this case. (v) The appellant strongly objects to the observations on the last page of the Remand report "that the assessees company was duly confronted with the above stipulation and was requested to file objections if any in this regard." As stated earlier by the as .....

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ctional analysis), had profiled the risk undertaken and also the assets employed in the business and TPO while going through had ignored this aspect. The TPO broadly classified the appellant as "market support activity" and searched to chose comparables from the prowess database. The appellant has argued that FAR analysis is very important keystone of any transfer pricing and proper comparable cannot be chosen without going in to the FAR analysis. In any FAR analysis the inputs are the .....

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employed in the respective business. All business work on the concept of return of investments and therefore a business employing large capital will invariably have higher return and vice a versa. In the absence of such an analysis, it would not fair to state that a proper, complete and accurate analysis was done and conclusion arrived. 5.13 As regard risk, the appellant further contended that it is imperative to identify the risk assumed by each entity in a transaction - risk related to market, .....

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arable companies the TPO had erred and therefore his conclusion were also erroneous. 5.14 I have considered the submissions of the appellant, the TPO has contended that proposal of prospered addition in respect of a mean net margin of 7.99% over cost in respect of commission business was made to the appellant. However the page-2 Para-3 speaks contrary to the assertion of TPO. The AO has recorded the denial of the appellant of any such proposal of addition. In such a situation the AO before proce .....

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engineer could attend them effectively with lesser travel and administration cost. Whereas in CSD attributable instruments, since they are scattered to small cities and places they require large force of service engineers to attend and also regular follow up. Thus there is no correlation with the value of sales, number of engineer and allocation of expenses. The unit should be seen as one and any division on this account may lead to erroneous result. 5.16 So far the comparable distribution and .....

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the appellant. Market research and marketing are terms of such wide implication that they have to be further analyzed. Similarly market research is further classified in to many more sub-functions like customer analysis, choice modeling, competition analysis, risk analysis, product research, advertising research, market mix modeling etc. Comparables performing different sub-functions will have different financial performance indicators. Similarly it can not be assumed that the two entities in si .....

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ere the operations of two or more associate enterprises are highly integrated, making it difficult to evaluate their transactions on an individual basis and the existence of valuable and unique intangibles makes it impossible to establish the proper level of comparability with uncontrolled transactions to apply a one-sided method. I hold that the TPO did not give any convincing reason for rejecting the method applied by the appellant. 5.19 After going through the submissions of the appellant, it .....

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he method adopted by the appellant. 2. Not ensuring that the companies selected by him as comparable are actually comparable using all the benchmarks specified in the above mentioned rules. 3. By not confronting the appellant with the data available with him to reject their method and apply his method. 4. By not giving the list of companies chosen and financial data in respect of them used by him to arrive at the rate for application of TNMM method to the appellant. 5.20 The comparables used by .....

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company. 5.21 The appellant has presented a copy of the ITAT order in the case of Philips Software v ACIT (ITAT Bangalore) in the paperbook submitted before me. There are various conclusions in this order which are applicable in the instant case and have been discussed in detail below: (i) Circular No. 14/2001 issued by the CBDT which is binding on the TPO states that The AO/TPO have to satisfy and communicate to the taxpayer which one of the four conditions prescribed in s. 92C (3) are satisfie .....

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a comparability analysis it is essential that (a) the data should relate to the financial year and (b) be contemporaneous i.e. exist on the specified date. If one of the conditions is not fulfilled, the data should not be included for comparison." 5.22 In the present case the Learned TPO has not shown whether the data of the companies selected by him are contemporaneous or not. In fact except for mentioning the percentage of net margin over cost no other details have been provided. No info .....

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urpose of computing, framing the assessment and making the transfer pricing adjustment. " The Learned TPO has not pointed out any defects/ deficiencies in the TP study conducted by the appellant and therefore he has erred in making his own computations. (iv) The ITAT in the above mentioned case stated that "Adjustment needs to be made to the margins of the comparables to eliminate differences on account of different functions, assets and risks and in particular for (a) differences in r .....

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ated party transaction vis-a-vis sales and not just profit since profit of an enterprise is influenced by large number of other factors. The facts and circumstances surrounding the company in question that should determine its status as a comparable and not its financial result. The cumulative effect of all factors has to be considered. In the present case the TPO has not made any effort to calculate the effect of various factors influencing the business of the selected companies and hence the e .....

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be apportioned amongst the transacting parties based on the FAR analysis with respect to the services. As per para No. 8.1 of the Transfer Pricing study report there are no contractual agreements between the parties and all the terms and conditions are verbal. The commission being paid by the associated enterprises to the assessee is 10% on concluded sales in India. Based on this a FAR analysis was conducted and it was stated that no commercial risk with respect to the trading operation are assu .....

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mmission business was 27.76%. On the allocation of the number of employees it was found by him that there were 55 employees out of which 11 employees were on account of commission income and 20 employees for distribution business and therefore the contention of the assessee was that only 20% of the salary is required to be allocated to the segment. On the basis of allocation of other expenditure the redrawn segmental accounts submitted by the assessee demonstrated a net loss of ₹ 4059069/- .....

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e ld. first appellate authority has held in para No. 5.22 that ld. Transfer Pricing Officer has not pointed out any defect or deficiency in the TP study conducted by the appellant. According to us this observation is erroneous as ld. TPO has stated that comparison of margin of 10 % on sales is not proper when in commission business on segmental analysis it is found that it has incurred considerable loss. Further, the ld. Transfer Pricing Officer has also adopted transactional net margin method ( .....

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mentioned any of the four conditions prescribed u/s 92C(3) of the Act rendering his order void. During the course of hearing the ld. DR has submitted that Hon'ble Karnataka High Court has stayed the above judgment and therefore, the decision of the first appellate authority is erroneous as it relied on the stayed judgment. The Hon'ble Karnataka High Court vide its order dated 16.02.2009 has stayed the operation of the judgment on which the first appellate authority has relied upon. Thou .....

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be set aside. Hence, we set aside all the four grounds of the appeal to the file of the ld. TPO to determine ALP of international Transactions after giving assessee a proper opportunity of hearing. In view of this the appeal of the revenue is allowed with above direction. 11. In the result the appeal of the revenue in ITA No. 2384/Del/2013 for AY 2002-03 is allowed for statistical purposes. ITA No. 3330/Del/2010 Assessment Year 2003-04 12. The revenue has raised the following grounds of appeal .....

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e premise of Circular 12 and 14 of 2001 in this. (c) the Ld. CIT(A) has erred in making subjective observations without examining the issues proving to the contrary relating to selection of comparables. usage of contemporaneous data and the application of the mean margin of the comparables. 2. The Ld. CIT(A) has erred in law and on facts in deleting addition of ₹ 5715977/-on account of depreciation on rental assets. The Ld. CIT(A) failed to appreciate the features of Rule 46A which require .....

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o. 1 of the appeal of the revenue for AY 2002-03 found them to be similar. We have already decided ground No. 1 appeal of the revenue for AY 2002-03 wherein we have set aside the above ground to the file of ld TPO with direction. Similarly, we also set aside this ground of appeal to the file of ld TPO with similar direction. In the result ground No. 1 of the appeal of the revenue is allowed accordingly. 15. Ground No.2 of the appeal of the revenue is against deletion of addition of ₹ 57159 .....

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appellant and further these assets are used for the purposes of the business and hence assessee claims depreciation on these assets. The ld. Assessing Officer disallowed the depreciation for the reason that the assessee is not using those assets for the purposes of the business as self use and at the end of the agreement the title of the assets passes to the hirer. Therefore, the depreciation was disallowed. On appeal before the ld. CIT(A) the claim of the assessee was allowed. The ld. CIT(A) no .....

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d also placing reliance on the decision of Hon'ble Supreme Court in case of ICDS Ltd. v. CIT 350 ITR 527. The ld. Authorised Representative further relied upon the decision of coordinate bench in ITA No. 482/Del/2009 AY 2004-05 dated 18.02.2010. 18. We have carefully considered the rival contentions. The coordinate bench has considered the identical issue wherein depreciation was allowed on machineries which are installed at the manufacturing premises of another company from whom assessee pu .....

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s used in Section 32 of the I.T. Act, 1961. The Hon'ble Supreme Court has held that the said term means that the machinery & plant is used for the purpose of enabling the owner to carry on the business and earn profit in the business. With this meaning in mind if the facts in the present case are seen, it is noticed that the assessee is in the business of trading in packed fruit juices. As per the assessee's product supply agreement entered into by the assessee with Dynamix right fro .....

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t juices are to be sourced from the sources and as per the specification approved by the assessee. Thus, a perusal of the product supply agreement shows that Dynamix is manufacturing the fruit juices for and on behalf of the assessee. Dynamix has no say in the method of manufacture, product mix, sourcing of raw material quality of raw material, method of packing, design of packing etc. It is not a case where Dynamix manufacture fruit juices and the assessee is a dealer for the fruit juice manufa .....

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n the machinery which would remain the liability in the hands of Dynamix if the assessee back out the agreement. It is noticed that the assessee as per the request of Dynamix has provided the machinery for the purpose of manufacturing the products under the Product Supply Agreement. A perusal of the agreement also shows that it is clearly understood that the machinery would belong to the assessee and not the Dynamix and Dynamix had no charge or claim over the machinery. Even the servicing, maint .....

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for the purpose of manufacturing the product of the assessee it would have to be held that the machinery has been used for the purpose of the business of the assessee and consequently the assessee would be entitled for claiming the depreciation. 6. In respect of the depreciation in regard to the Visi Refrigerators, it is noticed that these refrigerators have been installed at the premises of the dealers of the products dealt with by the assessee. Obviously, the product dealt in by the assessee .....

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refrigerators have been put to use as these refrigerators are at the premises of the dealers of the product of the assessee and consequently the assessee would be entitled to the claim of depreciation. 7. In the appeal of the revenue in I.T.A. No. 810/Del/2009 identical issue has been raised and it is noticed that the CIT(A) has relied upon his decision for the Assessment Year 2004-05 for deleting the disallowance of depreciation. As we have held that the decision of the Ld. CIT(A) to the issue .....

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affidavit of the assessee before him. We have perused the order of the ld CIT(A) wherein the affidavit only says that the assessee has not received any rent or installment on account of these machines. We reject the argument of the revenue as the information in the form audited financial statement is available on record as assessee has not shown any rental income in its profit and loss account and further in its fixed assets schedule it has shown the rental assets. In view of this ground No. 2 o .....

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77; 6488,415/- made on account of depreciation on rented assets. 3. On the facts and in the circumstances of the case and in law, the learned CIT(Appeals) has erred in deleting the addition of ₹ 3,03,209/- made by disallowing the excess depreciation claimed on computer peripherals. 4. On the facts and in the circumstances of the case and in law, the learned CIT(Appeals) has erred in deleting the addition of ₹ 6,11,626/- made by capitalizing the seminar expenses. 5. On the facts and i .....

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account of depreciation on rented assets. 23. The parties before us submitted that this ground is identical to ground No. 2 of the appeal of the revenue for AY 2003-04. They also submitted that their arguments on this ground remain the same which were advanced by them in appeal of the revenue for AY 2003- 04. 24. We have carefully considered the rival contentions and perused the ground of appeal and are convinced that it is identical to ground No. 2 of the appeal of the revenue for the AY 2003- .....

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assessee of depreciation @ 60% on such assets following the decision of the Hon'ble Delhi High Court in CIT v. BSES Rajdhani Power Ltd. [IT Appeal No. 1266 of 2010, dated 31-8-2010] and therefore we do not find any infirmity in the order of the ld CIT(A). Ground No. 3 of the appeal of the revenue is dismissed. 27. Ground No. 4 of the appeal is on the issue of seminar expenses. The assessee has incurred ₹ 916540/- for the launch of new products D-10 systems. The ld Assessing Officer al .....

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They are routine in nature and further the decision of Hon'ble Supreme Court in case of Madras Industrial Investment Corpn. Ltd. v. CIT [1997] 225 ITR 802 does not apply to the facts of the case. We do not find any infirmity in the order of the ld. CIT(A) and therefore, we dismiss ground No. 4 of the appeal of the revenue. 30. Ground No. 5 of the appeal of the revenue is on account of expenditure on display stand. During the year the above sum was incurred for display stand in seminar. The l .....

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trated that expenses were incurred for display panel, banner stand and other kinds of display literature. He therefore held that looking to the nature of the expenditure and durability and longitivity of these items such expenditure is revenue in nature. We find no infirmity in the order of the ld. CIT(A). Hence, ground No. 5 of the appeal of the revenue is dismissed. 32. Ground No. 6 of the revenue is against deletion of ₹ 5993211/- on account of transfer pricing adjustments. 33. The part .....

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TPO with similar direction. In the result ground No. 6 of the appeal of the revenue is allowed with above direction. 35. In the result the appeal of the revenue is partly allowed for statistical purposes. ITA No. 2466/Del/2012 AY 2005-06 36. The revenue has raised the following grounds of appeal for Assessment Year 2005-06 in ITA No. 2466/Del/2012 as under:- "1. In the facts and circumstances of the case, the Ld. CIT(A) has erred in law and on facts in directing AO to recalculate the depre .....

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8377; 1,67,40,9887- on account of Arm's Length Price." 37. The first ground of appeal of the revenue is against allowance of depreciation on rental assets. 38. The parties before us submitted that this ground is identical to ground No. 2 of the appeal of the revenue for AY 2003-04. They also submitted that their arguments on this ground remain the same which were advanced by them in appeal of the revenue for AY 2003- 04. 39. We have carefully considered the rival contentions and perused .....

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imed depreciation on computer peripherals like printers, scanner and UPS @ 60% whereas the ld AO allowed it @25%. Ld CIT(A) has allowed the claim of the assessee of depreciation @ 60% on such assets following the decision of the Hon'ble Delhi High Court in BSES Rajdhani Power Ltd. (supra) and therefore we do not find any infirmity in the order of the ld. CIT(A). Ground No. 2 of the appeal of the revenue is dismissed. 42. Ground No. 3 of the appeal is against deletion of disallowance of marke .....

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iness. They are routine in nature and further the decision of Hon'ble Supreme Court in case of Madras Industrial Investment Corpn. Ltd. (supra) do not apply to the facts of the case. We do not find any infirmity in the order of the ld. CIT(A) and therefore, we dismiss ground No. 3 of the appeal of the revenue. 46. Ground No. 4 of the appeal of the revenue is against the transfer pricing adjustment of ₹ 16740988/- deleted by the ld. CIT(A). 47. The parties before us submitted that this .....

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he result ground No. 4 of the appeal of the revenue is allowed with above direction. 49. In the result appeal of the revenue is partly allowed for statistical purposes. ITA No. 490/Del/2011 AY 2006-07 50. The revenue has raised the following grounds of appeal for Assessment Year 2006-07 in ITA No. 490/Del/2011 as under:- "1. In the facts and circumstances of the case, the Ld. CIT(A) has erred in law and on facts in deleting addition of ₹ 80,06,721/- on account of disallowance of depre .....

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nd accessories." 51. The ground No. 1 of the appeal of the revenue is on depreciation of rental assets of ₹ 8006721/-. 52. The parties before us submitted that this ground is identical to ground No. 2 of the appeal of the revenue for AY 2003-04. They also submitted that their arguments on this ground remain the same which were advanced by them in appeal of the revenue for AY 2003- 04. 53. We have carefully considered the rival contentions and perused the ground of appeal and are convi .....

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ipherals like printers, scanner and UPS @ 60% whereas the ld. AO allowed it @ 25%. Ld CIT(A) has allowed the claim of the assessee of depreciation @ 60% on such assets following the decision of the Hon'ble Delhi High Court in BSES Rajdhani Power Ltd. (supra) and therefore we do not find any infirmity in the order of the ld CIT(A). Ground No. 2 of the appeal of the revenue is dismissed. 56. In the result the appeal of the revenue is dismissed. ITA No. 3526/Del/2012 AY 2007-08 57. The revenue .....

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ies before us submitted that this ground is identical to ground No. 2 of the appeal of the revenue for AY 2003-04. They also submitted that their arguments on this ground remain the same which were advanced by them in appeal of the revenue for AY 2003-04. 60. We have carefully considered the rival contentions and perused the ground of appeal and are convinced that it is identical to ground No. 2 of the appeal of the revenue for the AY 2003-04. We while deciding that ground has dismissed the grou .....

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of the assessee of depreciation @ 60% on such assets following the decision of the Hon'ble Delhi High Court in BSES Rajdhani Power Ltd. (supra) and therefore we do not find any infirmity in the order of the ld CIT(A). Ground No. 2 of the appeal of the revenue is dismissed. 63. In the result the appeal of the revenue is dismissed. ITA No. 1266/Del/2013 AY 2008-09 64. The revenue has raised the following grounds of appeal for Assessment Year 2008-09 in ITA No. 1266/Del/2013 as under:- "1 .....

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