TMI Blog2017 (12) TMI 1860X X X X Extracts X X X X X X X X Extracts X X X X ..... airs. The court cannot come to the rescue of an assessee who keeps changing counsel from time to time in order to gain time. We do not approve of this kind of practice of frequent change of counsel. When the application for admission of additional evidence was rejected, the assessee again started pleading adjournment of the case. In any case, once the issue is duly covered against assessee, there was no occasion for the bench to adjourn the matter and further it is not befitting the stature of the counsel, to seek for adjournment in a covered matter. It is a classic example of shifting of profit base outside the country. The appellant has also not controverted the findings of the TPO that it adopted a colourable device to shift the tax base of this country. When the other transactions are accepted to be at arm s length under the TNMM method, the TPO is not justified in adopting the CUP method for the purpose of benchmarking the transaction of payment of management and marketing support services fee, is not correct in asmuchas the TPO had not examined the other transactions under the TNMM method. Deduction u/s 10A - AO in reducing the tele-communication expenses incurr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es fees paid and the services rendered by the Associated enterprises of the Appellant. 5. The Learned AO and the Learned DRP erred in disregarding the contemporaneous planning study and the benchmarking analysis submitted by the Appellant without prejudice in substantiation of the management marketing support services fees. 6. The Learned AO and the Learned DRP erred in ignoring the fact that the Learned TPO has transgressed the powers provided u/s 92CA of the Act. Others 7. That the learned AO erred in not allowing deduction under section 10A of the Act of the entire profits of the undertaking registered with the Software Technology Park of India. 8. (i) That on the facts and in the circumstances of the case, the Learned AO erred in reducing the tele-communication expenses incurred in India amounting to Rs 4,899,396 from 'export turnover' while computing deduction under section 10A of the Act as 'expenditure attributable to delivery of software outside India' under Explanation 2(iv) to Section 10A of the Income-tax Act, 1961 ('the Act'). (ii) That the Learned AO has erred in not allowing the reduction of telecommunica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Purchase of VCE Kits completely knocked down condition 271,70,67,143 7. Services provided 42,89,95,417 8. Services availed 2,28,31,374 9. IT charges received 16,28,28,614 10. Payment for services 91,78,096 11. Service income 51,96,167 12. Reimbursement of expenses received 1,51,87,481 13. Reimbursement of expenses paid 20,233 14. Royalty 6,26,72,000 15. Purchase of printed matter 16. Management fee (Mfg distribution) 37,89,35,000 17. Technical Fee paid 9,30,00,000 The aforesaid inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement services would have been rendered to various other Volvo group entities. In this regard, please also justify how two independent parties would have quantified the services. 2.4 In respect of each type of expense under the management services rendered, the basis of such quantification of service or cost involved. Because, no independent party would like to pay for a service without knowing the cost of such service or without knowing the cost at which such service is rendered in the market. No independent company would pay management fee without actually knowing the basis for apportionment and also so huge amount of Rs. 37,89,35,000/- which is about 14% of profit (before management fee) is paid as management fee. 2.5 Whether management fee is paid by any of the concern or subsidiary of Volvo Group any where in the world. If yes, copies of the agreements for management fee and also the basis on which such payments are paid. 2.6 Whether management fee is paid by any independent concern or entity in any other country through which Volvo Group carries on similar business as that of you. If yes, copies of the agreements for management, fee and also the basis on which such p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any factual information on the actual amount spent by the AE. The TPO had summarized his comments on the explanation furnished by the appellant as under:- 1. The reply nowhere contains the information asked by the TPO specifically the amount spent by VTC towards management fee and how much of it apportioned to India. 2. The AE treats non-Swedish entities as service providers whereas the taxpayer is a manufacture as well as distributor of commercial vehicles of Volvo in India. This admitted even in the functional analysis done by the taxpayer in its TP report. 3. The VTC says that the taxpayer is guaranteed an arm's length profitability is not true. As the taxpayer is carrying on significant manufacturing and distribution functions attached with consonants risk, how can the return can be guaranteed. 4. The AE says that the arm's length result is usually based on certain range of Return on Capital Employed ( ROCE ) for manufacturing and Berry Ratio (`Gross Profit/ Value Added Expenses') for distribution functions. Other services are remunerated on a Cost Plus Mark-up (`Operating Profit/ Total Cost') basis. As per the Volvo Group transfer pricing system, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... marketing activities, customer relationship support, usage of trademark, brand and guidelines and background material for all kind of activities related to such services. It also states that it is not necessarily VTC that has provided these services, they might just as well have been provided by another Volvo Group company in Sweden or as a Service Provider to Volvo Sweden. It should be mentioned that AB Volvo, the parent company in the Volvo Group has the overall responsibility of building the Volvo trade-mark and brand and much of the costs related hereto is borne by AB Volvo. The AE again mixes the purpose for which the management service is received. It does not know which group member provided such services. Hence, the invoice raised by the VTC can be treated as only a paper and nothing beyond as either the taxpayer or the AE did not show how such expenses are incurred only for India and not for the rest of the country. 6. Finally the TPO had given the following reasons for treating the arm s length price [ALP] of the transaction of payment of management fee at Rs. Nil. :- 1. The taxpayer did not pay any management fee in the financial year 2003-04, but started paying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence of tax as the taxpayer has paid only 10%, when compared to the tax rate of 40% (30% tax + 10% dividend tax) if the same was shown as profits and remitted as dividend. 11. The imports from AEs constitute major consumption of raw material / purchases indicating that the AEs are already compensated enough in the form of purchase price and also compensated for the value addition in India by way of royalty paid based on the technology received from AE. 12. The taxpayer did not prove the arm's length nature of management fee paid to Volvo Truck Corporation. Thus the arm's length price of management fee paid is treated as Rs. Nil due to inadequacy of the taxpayer's argument and the entire payment of management fee of Rs. 37,89,35,000/- is treated as an adjustment U/s 92CA. 7. In respect of the payment of royalty and payment of technical services, the TPO held it to be at arm s length. He treated the arm s length price of the payment of management fee of Rs.37,89,35,000 at Nil as no evidence was filed in support of the rendering of services and it was not demonstrated any tangible and substantial commercial benefit was derived by such huge payment of manage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the reports provide valuable input to the appellant. He submitted that in respect of customer relationship support, the following services are provided by its AE:- a) The products manufactured by the appellant are used in the construction and mining industry. Such products are required to be customized/modified depending upon the kind of mining activity carried on by the customer viz., coal mining, granite mining etc. The associated enterprise understands the requirements of the customer and supports the appellant in identifying the customization requirements as well as carrying out the requisite modification to meet the needs of the customer. b) The marketing team of the associated enterprise assists the appellant in identifying new products which may be launched in India depending upon the needs of the Indian industry and potential customers. As a result of the support provided by the associated enterprise, the appellant successfully launched the I-shift technology in India which leads to improved fuel mileage of the products resulting in increased revenue for the appellant. c) The associated enterprise conceptualized and developed a mobile office in the form of a truck ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ys, films on brands and product and general communication portal. e) The associated enterprise also provides and shares the product and market strategies and plans with the personnel of the appellant, thereby providing an insight into the Volvo global business operations. Knowledge of other market experiences is also shared by the associated enterprise with the appellant. The associated enterprise has also undertaken customer profiling for the appellant by means of launch under Area Asia. 14. The ld. Counsel for the assessee further submitted that during the course of proceedings before the TPO, copies of invoices raised by the AE towards management and marketing support services fee are furnished and also the details of nature of services rendered by the AE are also provided. It is further contended that the basis of quantification of services or cost involved is also submitted. He further contended that the TPO had failed to consider the evidence and explanation filed by the appellant as proof of provision of services by the A and had wrongly come to the conclusion that the appellant had failed to place on record the evidence in support of services rendered by the AE. He f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fees in the subsequent years. Reliance in this regard was placed on judgment of the Hon ble Supreme Court in the case of Shahzada Nand and Sons v. CIT (1977) CTR (SC) 246 and CIT v. Laxmi Cement Distributors (P) Ltd., (1976) CTR (Guj) 338 / 104 ITR 711 (Guj). It was further contended that the TPO was not justified to benchmark the payment of management fees on a stand alone basis when the TNMM was applied as the most appropriate method. 16. On the other hand, the ld. DR has submitted that the transaction of payment of management and marketing support services fees is a sham transaction as the assessee company had failed to prove the receipt of services from its AE and the issue involved in the appeal is covered by the earlier decision of the coordinate Bench in assessee s own case for the AY 2005-06. He further submitted that the additional evidence sought to be filed cannot be admitted as there is no explanation in the application for admission of additional evidence as to why the same could not be filed before the lower authorities. 17. We have heard the rival submissions and perused the material on record. The issue in the present appeal is whether the TPO/AO was justified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strategy that culminates every four years in the Volvo Ocean Race. Such global brand building exercise helps VIPL to project a global image in India. 4.5.5 Several brand surveys as well as customer satisfaction surveys, Volvo attitude survey are undertaken by Volvo Group and the results of the same are shared with VIPL. These provide valuable inputs to VIPL in terms of positioning its products to the requisite customers. Thus, through all the above initiatives Volvo Group provides VIPL with the required brand identity, value and culture in India. 4.5.6 As knowledge sharing initiative, Volvo Group has hosted intranet website containing information on contacts handling, marketing communication, results of Volvo Global surveys, films on brands and product and general communication portal. All the above help the personnel at VIPL feel as part of the Global Volvo team and focus on their functions better. 4.5.7 Volvo Group also provides and shares the product and market strategies and plans with personnel at VIPL, thereby providing an insight for them into the Volvo global business operations. Knowledge of other market experiences is also shared. Volvo Group has undertaken Cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n is that appellant had failed to produce any evidence regarding expenditure incurred by the AE on behalf of the appellant. This ground cannot be a relevant consideration for determination of ALP at Nil in the light of the decision of the Hon ble Punjab Haryana High Court in the case of KnorrBremse India (P.) Ltd. v. ACIT, 380 ITR 307 (P H). The relevant part of the judgment is as under:- 48. The TPO also held that no independent enterprise would pay out a portion of its profit big or small before it knows the cost incurred by the service provider. The TPO held that the assessee had failed to follow this basic tenet of independent behaviour. 49. A purchaser of goods or of services is not concerned with the price at which its vendor of goods or supplier of services in turn acquired the same. This, at the highest, would be a factor while negotiating the purchase of goods or the acquisition of services. Even if the vendor or supplier acquired the assets or the know-how as a gift, it would be irrelevant as far as the onward sale thereof is concerned. The purchaser determines the price it is willing to pay for the goods or services independent of what the same cost its vendor/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat in the absence of any evidence in support of rendering of services by the AE, the TPO is justified in adopting the ALP of such management fee at Nil . Reliance in this regard is placed on the following decisions:- i) Decision of the coordinate Bench of the Tribunal in the assessee s own case for the AY 2005-06 reported in [2017] 77 taxmann.com 207 (Bangalore Trib.). The relevant paragraphs are extracted hereunder: 11. No doubt, now it is settled proposition of law that it is beyond scope and powers of AO/TPO to question the necessity of incurring any expenditure. The Hon'ble Delhi High Court in the case of EKL Appliance Ltd. (supra) held that TPO cannot determine the ALP at Nil by holding that there was no need to incur any expenditure. The above decision was followed by the several coordinate benches of the Tribunal, some by them are as follows: i. Dresser-Rand India (P.) v. Addl. CIT [2011] 13 traxmann.com 82/[2012] 53 SOT 173 (Mum.) ii. Ericsson India (P.) Ltd. v. Dy. CIT [2012] 25 taxmann.com 472 (Delhi) iii. AWB India (P.) Ltd. v. ACIT [IT Appeal No. 4454 of 2011] (Delhi); iv. SC Enviro Agro India Ltd. v. Dy. CIT [2013] 34 taxmann.com 127/143 ITD ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndered by AE. Furthermore the finding of the TPO that the invoice was raised much after the closure of the accounting year and the payment of management fee in nothing but siphoning of the profits from India with the intention of avoiding tax are serious enough to doubt the genuineness of transactions. The appellant had made no effort to controvert the findings of the TPO. Therefore, in our considered opinion the TPO/AO is justified in adopting ALP at Nil. 13. Now we shall deal with the alternative submission of the learned counsel for the appellant that the transaction of management and support fee should be bundled with other transactions and bench marked by adopting TNMM cannot be accepted for the reason that bundling of transactions is permissible only when the transactions are closely related to each other and reliance in this regard can be placed on the decision of Delhi High Court in the case of Sony Ericsson Mobile Communications India Pvt. Ltd. v. CIT [2015] 374 ITR 118/231 Taxman 113/55 taxmann.com 240 and Punjab Haryana High Court in the case Knorr Bremse India (P) Ltd. v. Asstt. CIT [2016] 380 ITR 307/236 Taxman 318/[2015] 63 taxmann.com 186. It is not the case of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... business circles but it is not for the Court to decide which of them should have been employed when the Court is deciding a question under Section 12(2) of the Income Tax Act . It was further held in this case that it is not necessary to show that the expenditure was a profitable one or that in fact any profit was earned . In CIT v. Walchand Co. etc., (1967) 65 ITR 381, it was held by the Supreme Court that in applying the test of commercial expediency for determining whether the expenditure was wholly and exclusively laid out for the purpose of business, reasonableness of the expenditure has to be judged from the point of view of the businessman and not of the Revenue. It was further observed that the rule that expenditure can only be justified if there is corresponding increase in the profits was erroneous. It has been classically observed by Lord Thankerton in Hughes v. Bank of New Zealand, [1938] 6 ITR 636 that expenditure in the course of the trade which is unremunerative is none the less a proper deduction if wholly and exclusively made for the purposes of trade. It does not require the presence of a receipt on the credit side to justify the deduction of an expense . The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... necessary or prudent for the assessee to have incurred the same or that in the view of the Revenue the expenditure was unremunerative or that in view of the continued losses suffered by the assessee in his business, he could have fared better had he not incurred such expenditure. These are irrelevant considerations for the purpose of Rule 10B. Whether or not to enter into the transaction is for the assessee to decide. The quantum of expenditure can no doubt be examined by the TPO as per law but in judging the allowability thereof as business expenditure, he has no authority to disallow the entire expenditure or a part thereof on the ground that the assessee has suffered continuous losses. The financial health of assessee can never be a criterion to judge allowability of an expense; there is certainly no authority for that. What the TPO has done in the present case is to hold that the assessee ought not to have entered into the agreement to pay royalty/brand fee, because it has been suffering losses continuously. So long as the expenditure or payment has been demonstrated to have been incurred or laid out for the purposes of business, it is no concern of the TPO to disallow the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a proper outgoing by way of expenditure must be debited irrespective of whether there is receipt of income or not. That is the plain requirement of proper accounting and the interpretation of Section 57(iii) cannot be different. The deduction of the expenditure cannot, in the circumstances, be held to be conditional upon the making or earning of the income. It is noteworthy that the above observations were made in the context of Section 57(iii) of the Act where the language is somewhat narrower than the language employed in Section 37(1) of the Act. This fact is recognised in the judgment itself. The fact that the language employed in Section 37(1) of the Act is broader than Section 57(iii) of the Act makes the position stronger. 20. In the case of Sassoon J. David Co. Pvt. Ltd. v. CIT, (1979) 118 ITR 261 (SC), the Supreme Court referred to the legislative history and noted that when the Income Tax Bill of 1961 was introduced, Section 37(1) required that the expenditure should have been incurred wholly, necessarily and exclusively for the purposes of business in order to merit deduction. Pursuant to public protest, the word necessarily was omitted from the section. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... benches of the Tribunal in several cases. Some of them are: i. Dresser-Rand India (P.) (supra) ii. Ericsson India (P.) Ltd. v. Dy. CIT [2012] 25 taxmann.com 472 (Delhi) iii. AWB India (P.) Ltd. v. ACIT [IT Appeal No. 4454 of 2011] (Delhi - ITAT); AY 2007-08 iv. SC Enviro Agro India Ltd. v. Dy. CIT [2013] 34 taxmann.com 127/143 ITD 195 (Mum. - Trib.) v. Abhishek Auto Industries Ltd. v. Dy. CIT [2011] 9 taxmann.com 27 (Delhi) vi. McCann Erickson India (P.) Ltd. (supra) vii. DSM Anti-Infectives India Ltd. v. Addl. CIT [2014] 50 taxmann.com 239 (Chd. - Trib.) viii. TNS India (P.) Ltd. (supra) ix. Atotech India Ltd. v. Asstt. CIT [2014] 148 ITD 670/42 taxmann.com 468 (Delhi - Trib.) x. Nippon Leakless Talbros v. ACIT [IT Appeal No. 5931 (Delhi) of 2012] - AY 2008-09 xi. Nippon Le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xpended wholly and exclusively for the purpose of business. 11. A Co-ordinate Bench Tribunal of Delhi in the case of Kanu Kitchen Kulture (P.) Ltd. v. DCIT (2013) 28 ITR (T) 49 (Del. - Trib.) held that whether the assessee failed to demonstrate the services rendered by the commission agent, the commission was disallowed. The relevant paras of the judgment are reproduced below; 22. Thus the assessee as utterly failed to demonstrate the nature and extent of service rendered by the agent and availed of by the assessee for its business of modular kitchen. In this scenario what appears on record is merely book entries coupled with TDS the amount which will be claimed as a refund by the recipient being a loss making concern. In our considered view the assessee has produced only skeletal paper work of the arrangement without any iota of evidence about actual business services rendered. 23. The assessee's claim for allowing similar commission payment in subsequent year caries no merit inasmuch as the learned DR has rightly pleaded that each and every year of assessment is separate and independent unit and principles of resjudicata do not apply. The assessment for the assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at source and he had failed to examine whether the services are actually rendered by the commission agents or not. Therefore, we are unable to sustain the order of the learned CIT (A) and hold that the commission payments in question are not allowable keeping in view the ratio laid down in the cases cited supra. The assessee company had miserably failed to demonstrate the actual services rendered by the agents to whom the commission payments were made, despite ample opportunity granted by this Tribunal to furnish evidence in support of service rendered by commission agent.' 10. In light of the ratio laid down in the cases cited supra we hold that the condition of rendition of services should be satisfied by the assessee so as to allow the same as expenditure. In the present case, assessee-company had not produced any evidence in support of rendering of services before the TPO. It is only before us, by way of additional evidence, assessee-company has filed some material, in support of the actual services rendered by the AE. The CIT (A) had no occasion to examine this evidence as it was claimed that this evidence was filed for the first time before us. Therefore, the CIT (A), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of management and marketing support services fees at Rs.Nil is that there was no evidence in support of rendering of services by the AE and the failure to substantiate real nature of services actually rendered by the AE . In the light of the above settled position of law and placing reliance on the decisions cites supra, we hold that the TPO was justified in determining the ALP of transaction of marketing and management support fees at nil . 22. Before us during the course of hearing of the appeal, the ld. Counsel for the assessee, Mr. Naresh Jain from M/s. Vaish Associates, filed an application for admission of additional evidence in terms of Rule 29 of the Income-tax (Appellate Tribunal) Rules, 1963 [ the ITAT Rules ]. 23. At the outset, it is also incumbent to deal with the conduct of the ld. Counsel arguing for the appellant and also the chequered history of this case for better appreciation of the misconduct of the ld. Counsel who argued before us. It is clear that it is a matter of 2010. The appeal was registered in this Tribunal on 01.12.2010 and the hearing was fixed for the first time on 30.10.2014 and till 07.04.2015, one Mr. Chavali Narayan, CA, represented t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al finding of the TPO was that the appellant had only described the nature of services, but never attempted to file any evidence in support of rendering of services. It is trite law that admission of additional evidence by the Tribunal is at the sole discretion of the Tribunal. The provisions of Rule 29 of the ITAT Rules govern the admission of additional evidence before the Tribunal. The said Rule reads as under:- [Production of additional evidence before the Tribunal. 29. The parties to the appeal shall not be entitled to produce additional evidence either oral or documentary before the Tribunal, but if the Tribunal requires any document to be produced or any witness to be examined or any affidavit to be filed to enable it to pass orders or for any other substantial cause, or, if the income-tax authorities have decided the case without giving sufficient opportunity to the assessee to adduce evidence either on points specified by them or not specified by them, the Tribunal, for reasons to be recorded, may allow such document to be produced or witness to be examined or affidavit to be filed or may allow such evidence to be adduced.] 24. On a plain reading of the ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mission of additional evidence led by one of the parties to the appeal, after recording due reasons for doing so. 26. In the present case, from a perusal of the application filed before the Tribunal for admission of additional evidence, there is no averment as to why the assessee could not furnish this evidence before the lower authorities i.e., either before the AO or before the DRP. Furthermore, there is also no averment as to how the additional evidence filed before us has a bearing on the issue before us. In other words, the appellant had not made any efforts to demonstrate before us that this evidence will prove to the hilt the actual rendition of the services by the AE to the appellant in terms of clause 4.5 of the master agreement. In the aforesaid circumstances, we have no option but to reject the application for admission of additional evidence. Accordingly, we pronounced in the open court dismissing the application for admission of additional evidence. 27. At this juncture, again the ld. Counsel for the assessee, Mr. Naresh Jain, had made a repeated request for adjournment of the case. We find no reason for the ld. Counsel for the assessee to seek adjournment of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nn.com 239 (Chd. - Trib.) viii. TNS India (P.) Ltd. v. Asstt. CIT [2014] 48 taxmann.com 128/[2015] 152 ITD 123 (Hyd. - Trib.) ix. Atotech India Ltd. v. Asstt. CIT [2014] 148 ITD 670/42 taxmann.com 468 (Delhi - Trib.) x. Nippon Leakless Talbros v. ACIT [IT Appeal No. 5931 (Delhi) of 2012] xi. Nippon Leakless Talbros v. ACIT [IT(TP) Appeal No. 475 (Delhi) of 2015] xii. Hughes Systique India (P.) Ltd. v. Asstt. CIT [2013] 36 taxmann.com 41 (Delhi - Trib.) xiii. Knorr-Bremse India (P.) Ltd. v. Asstt. CIT [2013] 56 SOT 349/[2012] 27 taxmann.com 16 (Delhi - Trib.) xiv. Thyssen Krupp Industries India (P.) Ltd. v. Asstt. CIT [2013] 55 SOT 497/[2012] 27 taxmann.com 334 (Mum. - Trib.) xv. LG Polymers India (P.) Ltd. v. Addl. CIT [2011] 48 SOT 269/15 taxmann.com 79 (Visakha). 12. Thus in the light of the above legal position, the ALP of services of AE cannot be determined at Nil by questioning the necessity of benefits of expenditure incurred. But the matter does not end there. The onus lies on the assessee to prove that the services are actually rendered by the AE. But the assessee had failed to discharge this onus lying upon it despite being asked to do so by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in its own case for the earlier assessment year, we find no reason for the ld. Counsel for the assessee to seek adjournment of the case, especially in the matters of very old matters i.e., 2010. It is for the assessee to arrange for its own affairs. The court cannot come to the rescue of an assessee who keeps changing counsel from time to time in order to gain time. We do not approve of this kind of practice of frequent change of counsel. 29. When the application for admission of additional evidence was rejected, the ld. Counsel for the assessee again started pleading adjournment of the case. In any case, once the issue is duly covered against assessee, there was no occasion for the bench to adjourn the matter and further it is not befitting the stature of the counsel, to seek for adjournment in a covered matter. 30. As held earlier, the issue is squarely covered by the decision of the Tribunal in the earlier year and it is a classic example of shifting of profit base outside the country. The appellant has also not controverted the findings of the TPO that it adopted a colourable device to shift the tax base of this country. 31. As regards the other contentions that when ..... X X X X Extracts X X X X X X X X Extracts X X X X
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