Mrsatinder Kumar Dhawan vs Gnctd on 10 June, 2015

Central Information Commission
Mrsatinder Kumar Dhawan vs Gnctd on 10 June, 2015
                                                            

                  CENTRAL INFORMATION COMMISSION
                   (Room No.315, B­Wing, August Kranti Bhawan, Bhikaji Cama Place, New Delhi 110 066)



                   Prof. M. Sridhar Acharyulu (Madabhushi Sridhar)

                                          Information Commissioner


                                           CIC/SA/C/2015/0000095



       Satinder Kumar Dhawan Vs. Delhi State Industrial & Infrastructure 
                                   Development Corportion Ltd



                                          Important Dates and time taken:




  RTI:8­12­2014                         FA:                                       Hearing:08­06­2015

  Complaint: 30­3­2015                  Closed                                    Decision:10­06­2015




  Parties Present:  


      The Complainant is present.  The Public Authority is represented by Mr. Sunil Tyagi, Mr. 

  Thomas Cherian, Mr. B.N.Lal and Mr. M.C.Yadav.   


  FACTS

2.  The Complainant through his RTI application wants to have inspection of records, copy 

of records in respect of 3164 Flats constructed under” Rajeev Gandhi Housing Project”, 

policy  regarding  inspection,   any  other   details   regarding  inspection.   Having  received  no 

reply within prescribed time, appellant filed first appeal. First Appellate Authority directed to 

facilitate   inspection   within   15   days.   Claiming   non   furnishing   of   information,   appellant 

approached the Commission.

CIC/SA/A/2015/000095                                  Page 1
    DECISION: 


3.    Both the parties made their submissions.  The Complainant submitted that he wanted 

information   regarding   3164   Flats   constructed   under”   Rajeev   Gandhi   Housing   Project”, 

policy regarding inspection,   etc.   The respondent authority submitted that they did not 

receive the hearing notice for this appeal and hence they did not come prepared for this 

case.  But they said that consequent upon the FAA order for inspection, they have provided 

inspection to the complainanton 8­12­2014 but he did not get any information as there is no 

policy  regarding   inspection.     As   the   complainant   has   got   the  required   information,   the 

Commission closes the appeal. 

(M Sridhar Acharyulu)
Information Commissioner

Authenticated true copy

 (Babu Lal)
Deputy Registrar

Address of parties

1. The CPIO under the RTI Act, Govt. of Delhi
Delhi State Industrial & Infrastructure Development 
Corporation Limited, Technical Centre Building, 
Wazirpur Industrial Area
DELHI­110052

2. Shri Satinder Kumar Dhawan

C­600, Vikas Puri

CIC/SA/A/2015/000095 Page 2
New Delhi­110018

CIC/SA/A/2015/000095 Page 3

Mala Builders Pvt. Ltd., … vs Assessee on 16 February, 2015

Income Tax Appellate Tribunal – Chandigarh
Mala Builders Pvt. Ltd., … vs Assessee on 16 February, 2015
       IN THE INCOME TAX APPELLATE TRIBUNAL
         CHANDIGARH BENCH 'B', CHANDIGARH

     BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER
        AND SHRI T.R.SOOD, ACCOUNTANT MEMBER


                 ITA Nos.433 to 439 /Chd/2014
             (Assessment Years : 2004-05 to 2010-11)


Mala Builders Pvt. Ltd.,           Vs.                 The A.C.I.T
SCO 98-99, Sub City Centre,                            Central Circle II
Sector 34, Chandigarh.                                 Chandigarh.
PAN: AABCN0099B
(Appellant)                                            (Respondent)

             Appellant     by      :      None
             Respondent by         :      Shri Manjit Singh, DR

             Date of hearing   :                 16.02.2015
             Date of Pronouncement        :      16.02.2015



                                 O R D E R

PER BENCH :

All the appeals by the assessee are directed against the

different orders of the learned Commissioner of Income Tax

(Appeals)(Central), Gurgaon dated 28.2.2014 for the above

assessment years.

2. The record reveals that earlier the notice was served

upon the assessee and the appeals were adjourned on the

request of the learned counsel for assessee. Thereafter the

appeals were again taken up for hearing and the assessee was

notified the date of hearing through registered post. The

registered post did not return back to the office of the
2

Tribunal and, therefore, deemed to be served upon the

assessee in ordinary course. But despite service of notice,

none appeared on behalf of the assessee at the time of hearing

of the appeals. It, therefore, appears that the assessee is no

more interested in prosecuting the appeals. Therefore, the

appeals of the assessee are liable to be dismissed. The laws

aid those who are vigilant, not those who sleep upon their

rights. The principle is embodied as well known dictum,

‘VIGILANTIBUS ET NON DORMIENTIBUS JURA SUBVENIUNT’.

Considering the facts and keeping in view the provisions of

Rule 19(2) of the Appellate Tribunal Rules as were considered

in 38 ITD 320 (Del) in the case of CIT v Multiplan India Ltd.,

we treat these appeals as unadmitted.

3. Similar view has been taken by Hon’ble M.P. High Court

in the case of Estate of Late Tukojirao Holkar v CWAT 223 ITR

480 wherein it has been held as under:-

” I f t h e p a r t y , a t wh o s e i n s t a n c e t h e r e f e r e n c e i s
made, f ails to appear at the hearing, or f ails in
taking steps f or preparation of the paper books
so as to enable hearing of the ref erence, the
c o u r t i s n o t b o u n d t o a n s we r t h e r e f e r e n c e . ”

4. Similarly, Hon’ble Punjab & Haryana High Court in the

case of New Diwan Oil Mills Vs CIT (2008) 296 ITR 495

returned the reference unanswered since the assessee

remained absent and there was not any assistance from the

assessee.

5. Their Lordships of Hon’ble Supreme Court in the case of

CIT v B.N. Bhattarchargee And Another 118 ITR 461 at page
3

477-78 held that the appeal does not mean, mere filing of the

memo of appeal but effectively pursuing the same.

6. So by respectfully following the view taken in the cases

cited (supra), we dismiss the appeals filed by the assessee for

non prosecution.

7. In the result, all the appeals filed by the assessee are

dismissed.

Order pronounced in the open court on this 16th day of

February, 2015.

          Sd/-                                       Sd/-
     (T.R.SOOD)                              (BHAVNESH SAINI)
ACCOUNTANT MEMBER                            JUDICIAL MEMBER

Dated : 16 t h February, 2015

*Rati*

Copy to: The Appellant/The Respondent/The CIT(A)/The CIT/The DR.

Assistant Registrar,
ITAT, Chandigarh

Need To Take Steps To Retrieve Kachatheevu Islet Back From Sri Lanka … on 26 November, 2014

Lok Sabha Debates
Need To Take Steps To Retrieve Kachatheevu Islet Back From Sri Lanka … on 26 November, 2014


an>

Title: Need to take steps to retrieve Kachatheevu Islet back from Sri Lanka and to stop frequent arrest of Tamil fishermen by Sri Lankan Navy personnel.

*SHRI V. ELUMALAI (ARANI): Hon. Deputy Speaker Sir, vanakkam.  I thank Hon. Puratchithalaivi Amma for giving me an opportunity to speak in this august House.  Puratchithalavi Amma had a meeting with Hon. Prime Minister on 03.06.2014 and insisted for retrieving Kachaththeevu Islet back from Sri Lanka and to stop frequent arrest of Tamil fishermen by Sri Lankan Navy personnel.  But time and again Sri Lankan navy and Government of Sri Lanka are involved in arresting Tamil fishermen.  Five Tamil fishermen were arrested in 2011 on charges of drug trafficking and sentenced to death in 2014.  Hon. Puratchithalaivi Amma granted Rs.20 lakh for filing an appeal for cancellation of death sentence of those five fishemen from Tamil Nadu.  Under the intervention of hon. Prime Minister the fishermen on death row were released.  But on 23 November 2014, the very next day after their release, other 14 Tamil fishermen were arrested and are still languishing in Sri Lankan jails.  Kachaththeevu islet was given away by mistake to Sri Lanka through agreements of 1974 and 1976.  As demanded by people’s Chief Minister Puratchithalaivi Amma during the meeting with hon. Prime Minister on 03.06.2014, annulment of these agreement should take place and Kachaththevu islet should be taken back from Sri Lanka.  I urge through this august House to ensure regaining Kachaththeevu islet by Tamil Nadu.       

SHRI RAJIV PRATAP RUDY : Sir, I have to place it on record that the five Indian fishermen who were convicted have been released with the intervention of the Government of India.  I think it is the result of great cooperation between the two nations and the stand taken by our Prime Minister.  It was a great achievement on the part of the country that we could get back those fishermen. I think this point should be flagged for the knowledge of our Members.

 

 

 

 

Mrgirish Prasad Gupta vs Department Of Posts on 17 October, 2014

Central Information Commission
Mrgirish Prasad Gupta vs Department Of Posts on 17 October, 2014
                        CENTRAL INFORMATION COMMISSION
                           Club Building (Near Post Office)
                         Old JNU Campus, New Delhi - 110067
                                Tel: +91-11-26101592

                                                            File No. CIC/BS/A/2013/002477/6209
                                                                               17 October 2014
Relevant Facts

emerging from the Appeal:

Appellant                               :      Mr. Girish Prasad Gupta
                                               Vill: Shokhara-02, Rajendra Path,
                                               Post: Baroni, - 851112
                                               Begusarai, Bihar

Respondent                              :      CPIO & Superintendent of Post Offices
                                               Department of Posts
                                               Begusarai Division
                                               Begusarai, Bihar.

RTI application filed on                :      07/05/2013
PIO replied on                          :      19/08/2013
First appeal filed on                   :      22/07/2013
First Appellate Authority order         :      19/08/2013
Second Appeal dated                     :      17/09/2013

Information sought:-

The appellant has sought the information related to the two-year, three-year and five-year TD
Accounts opened at Sh. Ram Press sub post office Begusarai in the year 2010-11 and 2011-12.
Also wants the complete details related to the same.

Grounds for the Second Appeal:

The CPIO has not provided the desired information.

Relevant Facts emerging during Hearing:

The following were present
Appellant: Mr. Girish Prasad Gupta through VC
Respondent: Mr. Pankaj Kishore Singh CPIO’s representative through VC
The appellant stated that he has not been provided proper information in response to his
RTI application dated 07/05/2013. He further stated that in compliance of the FAA’s order the
respondents have merely informed the number of TD accounts opened but have not given any
other details like the name of the account holder, the amount of deposit etc. The CPIO’s
representative contended that the information relates to third party(s), is personal in nature and
exempt under Section 8(1)(e) & (j) of the RTI Act. He further stated that as per the departmental
rules information relating to customers is confidential and cannot be disclosed to any other
person.

Decision notice:

Accounts of customers maintained at post offices/banks are held under fiduciary
relationship and information relating to such accounts is personal in nature and exempt from

Page 1 of 2
disclosure to third party under Section 8(1)(e) & (j) of the RTI Act unless the seeker of information
is able to show larger public interest to justify the disclosure.

In the matter at hand the appellant has not established that the information sought is for
larger public purpose. Hence, there is no need to interfere with the respondent’s decision.

The matter is closed.

BASANT SETH
Information Commissioner

Authenticated true copy:

(R. L. Gupta)
Dy. Registrar/Designated Officer

Page 2 of 2

Mr.Tushar Maheshwari vs Ministry Of Railways on 28 February, 2014

Central Information Commission
Mr.Tushar Maheshwari vs Ministry Of Railways on 28 February, 2014
                     CENTRAL INFORMATION COMMISSION
                       CLUB BUILDING (NEAR POST OFFICE)
                      OLD JNU CAMPUS, NEW DELHI­110 067
                                     TEL: 011­26179548


                                            Decision No.CIC/AD/A/2012/003432/VS/06314
                                                     Appeal No.CIC/AD/A/2012/003432/VS


                                                                          Dated:      28.02.2014


Appellant:                                 Shri  Tushar Maheshwari,
                                           R/o 1,Shantinagar College Road, 
                                           Opp.  Jadavji Nagar, 
                                           Bhuj­Gujarat.


Respondent:                                Public Information Officer,
                                  Dy. C.C.O., Western Railway,
                                           O/o Chief Commercial Manager,
                                           IIIrd Flr, Station Bldg., 
                                           Churchgate, Mumbai­20.




Date of Hearing:                           28.02.2014


                                           ORDER

RTI application:

1. The   appellant   filed   an   RTI   application   on   28.06.2012   seeking   information 
pertaining to a certain application for refund of claim. 

2. The CPIO responded on 17.07.2012.   The appellant filed his first appeal on 
21.07.012 with the first appellate authority (FAA).  The FAA responded on 09.08.2012 
and upheld the decision of CPIO.   The appellant filed a second appeal on 16.10.2012 
with the Commission.

Hearing: 

3. The appellant  and the respondent  both participated in  the hearing  through 
video conferencing.

4. The appellant referred to his RTI application of 28.06.2012 and stated that he 
had made an application on 29.05.2006 to the respondent for refund of claim but no 
action has been taken by the respondent so far.

5. The respondent stated that the CPIO in his reply to the appellant on 17.7.2012 
has   informed   that   the   subject   case   pertained   to   the   year   2006   and   the   respondent 
organization is keeping the records up to 3 years only.  The respondent stated that as per 
record keeping book of the railways, their commercial department had kept this record 
for only 3 years.   

6. What emerged from the hearing was that the respondent will send a copy of 
the rule of the record keeping book of the railways to the appellant in context of the RTI 
application.

Decision:

7.The respondent is directed to provide to the appellant, within 30 days of this order, a 
copy of the record retention norms along with any other rules pertinent to the RTI 
application.

The appeal is disposed of.   Copy of decision be given free of cost  to  the 
parties.

(Vijai Sharma)
Information Commissioner
Authenticated true copy

(V.K. Sharma)
Designated Officer

Shri.Puskar Lal Ameta vs Department Of Posts on 10 February, 2014

Central Information Commission
Shri.Puskar Lal Ameta vs Department Of Posts on 10 February, 2014
                        CENTRAL INFORMATION COMMISSION
                           Club Building (Near Post Office)
                         Old JNU Campus, New Delhi - 110067
                                Tel: +91-11-26101592

                                                            File No. CIC/BS/A/2013/000224/4529
                                                                              10 February 2014
Relevant Facts

emerging from the Appeal:

Appellant                               :      Mr. Pushkar Lal Ameta
                                               Vill. & Post: Intali,
                                               Tehsil: Mavali,
                                               Udaipur - 313205, Rajasthan

Respondent                              :      CPIO & Superintendent of Post Offices
                                               Department of Posts
                                               Bhilwara Division,
                                               Bhilwara, Rajasthan 311001

RTI application filed on                :      17/03/2012
PIO replied on                          :      25/04/2012
First appeal filed on                   :      10/05/2012
First Appellate Authority order         :      08/06/2012
Second Appeal received on               :      03/01/2013

Information sought:

The appellant through his RTI Application has sought the copies of proof of delivery and AD of 4
parcel/registered post, out of which he wants the certified copy of one delivery receipt of AD No-
584 in his second appeal.

Grounds for the Second Appeal:

The CPIO has not provided the desired information.

Relevant Facts emerging during Hearing:

The following were present
Appellant: Mr. Pushkar Lal Ameta through VC
Respondent: Mr. S L Meena CPIO’s representative through VC
The CPIO’s representative stated that the appellant had requested for proof of delivery of a
parcel and was advised to deposit a fee of Rs.2/- for providing a copy but he has not paid the fee.
The appellant protested stating that the respondents have no right to claim any fee as they had
offered to supply the information after the mandatory period of 30 days was over.

Decision notice:

The CPIO is directed to supply the information requested by the appellant in his RTI
application dated 17/03/2012 immediately. The information should be provided free of cost.

The CPIO, who received the appellant’s RTI application, is warned to exercise due care for
future to ensure that the correct and complete information is furnished timely to the RTI

Page 1 of 2
applicant(s) as per the provisions of the Act failing which penal proceedings under Section 20 may
be initiated in future.

The appeal is disposed of accordingly.

BASANT SETH
Information Commissioner

Authenticated true copy:

(R. L. Gupta)
Dy. Registrar/Designated Officer

Page 2 of 2

Central Bank Of India, vs Smt.Sangeeta Ramesh Patil, on 30 November, 2013

State Consumer Disputes Redressal Commission
Central Bank Of India, vs Smt.Sangeeta Ramesh Patil, on 30 November, 2013
                                  1                            F.A.No. :21/11




                                       Date of filing:11.01.2011
                                       Date of order:30.10.2013

MAHARASHTRA STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MUMBAI, CIRCUIT BENCH AT AURANGABAD.


FIRST APPEAL NO.: 21 OF 2011
IN COMPLAINT CASE NO. : 24 OF 2010
DISTRICT FORUM : DHULE.

Central Bank of India,
Central Office at "Chandramukhi",
Building Nariman Point, Mumbai 400 021 &
Zonal Office at 317, M.G.Road,
Camp Pune, & Branch Office at Village Mukti,
Taluka & Dist. Dhule, through its
Branch Manager Mr.Satish Pitambar Kadam,
Central Bank of India,
Mukti Branch, District Dhule.                  ...APPELLANT


VERSUS


Smt.Sangeeta Ramesh Patil,
R/o Village Mukti,
Tq. & Dist.Dhule.                              ...RESPONDENT.


           Coram :     Mr.S.M.Shembole, Hon`ble Presiding Judicial
                       Member.
                       Mrs.Uma S.Bora, Hon`ble Member.
                       Mr.K.B.Gawali, Hon`ble Member.

           Present :   Adv.Shri.D.B.Dabholkar for appellant.

                        O R A L JUDGMENT
                       (Delivered on 30th October 2013)

Per Mr.S.M.Shembole, Hon`ble Presiding Judicial Member.

1.

This appeal is an exception to the judgment and order dated
29.11.2010 passed by District Consumer Forum Dhule partly allowing
2 F.A.No. :21/11

the consumer complaint No.24/2010 directing appellant/opponent bank
to issue no dues certificate to the respondent/complainant under loan
waiver scheme and further to pay compensation of Rs.1000/- for causing
mental torture and Rs.500/- towards cost of the proceedings.

(For the sake of brevity appellant bank is hereinafter referred as
‘opponent bank’ and respondent as ‘complainant’.)

2. We heard Shri.Dabholkar proxy advocate appearing for appellant
and with his consent decided to dispose of this appeal at the stage of
admission.

3. Brief facts giving rise to this appeal are that:-

Complainant Smt.Janyabai is an agriculturist having agriculture
field admeasuring 2 hector 49R at village Mukti Tq. & Dist.Dhule. In the
month of May 2004 complainant had borrowed loan of Rs.50,000/- from
opponent bank. In the year 2008 Government of Maharashtra launched
Agriculture Loan Waiver Scheme-2008. Under the same scheme the
agriculturist having holding more than 2 hector is entitled to get benefit
of the same scheme only up to 25% or Rs.20,000/- whichever is more.
However, according to the complainant she is entitled to get 100% benefit
of the same scheme and accordingly she applied to the opponent bank
for getting benefit. However, opponent bank informed the complainant
that she is entitled to get benefit of 25% or Rs.20,000/- and accordingly
opponent bank granted the same facility and given exemption for
repayment of loan Rs.20,000/-. Therefore by notice dated 25.6.2009 the
complainant claimed 100% exemption. Opponent bank denied the same
notice giving reply. Therefore complainant has filed consumer complaint
alleging deficiency in service on the part of opponent bank and claimed
100% exemption from repayment of loan and direction to issue no dues
3 F.A.No. :21/11

certificate. She has also claimed compensation Rs.10,000/- and
Rs.5000/- from towards cost of the proceedings.

4. Opponent bank resisted the complaint by its written version
contending inter alia that complainant is entitled to get exemption only
up to Rs.20,000/-. Accordingly that benefit is already given to her.
Therefore there was no any deficiency in service on its part. It has
submitted to dismiss the complaint.

5. On hearing both sides and considering the evidence on record,
District Consumer Forum held that complainant is entitled to get 100%
benefit of the same scheme and therefore opponent bank committed
deficiency in service denying 100% benefit. In keeping with this finding
District Consumer Forum has partly allowed the complaint as noted
above.

6. Feeling aggrieved by that judgment and order opponent bank has
filed this appeal.

7. We heard learned counsel appearing for the appellant, perused the
copy of impugned judgment and order and copies of complaint, written
version and copy of State Government circular pertain to the Agriculture
Loan Waiver Scheme-2008. However, we have had no opportunity to hear
the complainant as she remained absent despite service of notice and
therefore appeal is proceeded exparte against her. Almost all the facts
except the percentage of benefit of the said scheme are not disputed. It is
submitted by learned counsel appearing for the appellant that
complainant is being an agriculturist holding more than 2 Hectors land
is entitled to get benefit of scheme to the extent of 25% or Rs.20,000/-
whichever is more. But she is not at all entitled to get 100% benefit.
However, the complainant has falsely claimed that she is entitled for
4 F.A.No. :21/11

100%. In support of his submission, learned counsel for the appellant
has pointed out from the copy of the said circular that as per circular
agriculturist having agriculture land holding more than 2 hector, is
entitled to get limited benefit as pointed out above. On perusal of circular
and undisputed fact that the complainant is having agriculture land
holding 2 hectors, we find much force in the learned counsel appearing
for appellant.

8. However, on perusal of copy of complaint it reflects that
complainant has averred that she is holding agriculture land
admeasuring less than 2 hector. According to her 32R land belonging to
her is acquired by the Government etc. and therefore she has claimed
that she is having agriculture land holding less than 2 hectors etc. But
on perusal of 7/12 extract it manifests that complainant was holding 2
hector 49R of land and if 32R land is acquired by Government still she is
holding more than 2 hectors land. Therefore contention of complainant
that she is holding less than 2 hector land cannot be sustained. But it
appears from the copy of impugned judgment and order that the District
Consumer Forum without considering all these undisputed facts jumped
to the wrong conclusion that complainant is entitled to get 100% benefit
of the same Government scheme. Such erroneous finding cannot be
sustained.

9. In the result, opponent bank succeeds and appeal deserves to be
allowed. Hence the following order.

O R D E R

1. Appeal is allowed and impugned judgment and order is set
aside.

5 F.A.No. :21/11

2. Consumer complaint stands dismissed.

3. No order as to cost.

4. Copies of the order be sent to both the parties.

   sd/-                            Sd/-                  Sd/-
K.B.Gawali                       Uma S.Bora,       S.M.Shembole,
 Member                           Member     Presiding Judicial Member

Mane
 

Sandvik Asia P. Ltd., Pune vs Assessee on 2 September, 2013

Income Tax Appellate Tribunal – Pune
Sandvik Asia P. Ltd., Pune vs Assessee on 2 September, 2013
              IN THE INCOME TAX APPELLATE TRIBUNAL
                      PUNE BENCHES "A", PUNE

           BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER
             AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER


                           ITA No.2545/PN/2012
                        (Assessment Year : 2008-09)

Sandvik Asia Private Limited
Mumbai-Pune Road, Dapodi,
Pune - 411 012.

PAN : AACCS6638K                                        ....       Appellant

Vs.

Asstt. Commissioner of Income Tax
Circle - 10, Akurdi, Pune.                              ....      Respondent


             Appellant by                 :   Mr. J. D. Mistry
             Respondent by                :   Ms. M. S. Verma

             Date of hearing              :   02-09-2013
             Date of pronouncement        :   27-09-2013


                                    ORDER

PER G. S. PANNU, AM

This appeal by the assessee is directed against the order of the Asstt.

Commissioner of Income Tax, Circle – 10, Pune (in short ‘the Assessing

Officer’) passed under Section 143(3) read with Section 144C(13) of the

Income Tax Act, 1961 (in short “the Act”) dated 30.10.2012, which is in

conformity with the directions given by the Dispute Resolution Panel, Pune (in

short ‘the DRP’) dated 05.09.2012 for the assessment year 2008-09.

2. In this appeal, Grounds of Appeal raised by the assessee read as

under: –

“1. The learned AO erred in passing the impugned order which
was not in accordance with law, the statutory provisions, and which is void
and of no legal effect.

2. The learned AO erred in rejecting the transfer pricing analysis
undertaken by the assessee by aggregating its international transactions.

3. The learned AO erred in rejecting the selection of the TNMM
adopted by the assessee as the most appropriate method in the
2 ITA No.2545/PN/2012
A.Y. 2008-09

circumstances of the case and comparing net profit margins with external
comparables for computing the arms length price of international transactions.

4. The learned AO erred in rejecting the selection of the
TNMM/net profit margins adopted by the assessee without properly giving the
assessee an opportunity of being heard in this regard and also without
assigning valid reasons for the same.

5. The learned AO erred in adopting the cost plus method as the
most appropriate method in the circumstances of the case for computing the
arms length price of international transactions.

6. The learned AO erred in adopting the cost plus method for
computing the arms length price without properly giving the assessee an
opportunity of being heard in this regard and also without assigning valid
reasons for the same.

7. The learned AO erred in making an addition of
Rs.30,70,02,006/- by holding that international transactions of the
Manufacturing – Tools segment were not at arms length.

8. In making addition of Rs.30,70,02,006/- by holding that
international transactions of the Manufacturing – Tools segment were not at
arms length, the learned AO erred in :-

a. rejecting certain segments of Rajasthan Udyog & Tools
Ltd. and Hittco Tools Ltd. which had been used as a comparable by
the assessee,
b. considering a sum of Rs.2.8 crores being ‘loss on
impairment of assets’ as operating expenditure of the assessee.

c. considering the entire segment level profitability of the
assessee despite the fact that the segment comprised transactions
with both associated and non-associated enterprises.

9. The learned AO erred in making an addition of Rs.60,48,143/-

by holding that international transactions of the Manufacturing – Wires
segment were not at arms length.

10. In making addition of Rs.60,48,143/- by holding that
international transactions of the Manufacturing – Wires segment were not at
arms length, the learned AO erred in considering the entire segment level
profitability of the assessee despite the fact that the segment comprised
transactions regarding both wires and heating systems, thereby not comparing
like with like.

11. The learned AO erred in failing to apply the provisions of the
proviso to s. 92C(2) of the Act.

12. The learned AO erred in failing to apply multiple year data for
comparables as applied by the assessee and as mandated by Rule 10B(4) of
the Income-tax Rules, 1962.”

3. In brief, the background of the dispute is that assessee is a company

incorporated under the provisions of the Indian Companies Act, 1956 and its

principal activities comprised manufacturing, trading and regrinding of

tungsten carbide tools, rock processing equipments, thermostatic electrical

bimetal strips, wires, ribbons, heating elements, cold finished tubes/pipes and
3 ITA No.2545/PN/2012
A.Y. 2008-09

manufacturing of hot extruded seamless stainless steel tubes/pipes, etc.. The

business of the company was divided into three segments, which read as

under :-

(i) Tooling-specialises in tools for metal cutting.

(ii) Mining and Construction – focuses on tools and service
for mining and construction contracts with respect to
comprissiong of crushing plants used in mines.

(iii) Materials Technology-Specialises in high value added
products metallic materials.

For the assessment year under consideration, assessee-company filed

a return of income declaring total income of Rs.104,06,33,924/- which was

subject to scrutiny assessment under Section 143(3) read with Section

144C(13) of the Act, wherein by way of order dated 30.10.2012 the total

income has been determined at Rs.134,81,22,200/-. The substantive

difference between the returned and the assessed income is on account of

transfer pricing adjustment while determining the Arm’s Length Price (in short

‘ALP’) of the international transactions carried out by the assessee with its

Associated Enterprises (in short ‘AEs’). The assessee-company had

undertaken certain international transactions with its AEs for which the income

is required to be computed having regard to the ALP, as provided in Section

92(1) of the Act. A reference under Section 92CA(1) of the Act was made by

the Assessing Officer to the Transfer Pricing Officer (i.e. TPO) for computation

of ALP in relation to the international transactions carried out by the assessee.

In terms of the order passed by the TPO under Section 92CA(3) of the Act

dated 28.10.2011, the following adjustments were proposed to the ALP stated

by the assessee :-

Sr No Description of international transaction Proposed adjustment
1 Export of finished goods in respect of 30,70,02,0661
manufacturing of tools division
2 Manufacturing of wire segment 60,48,143/-

                     TOTAL Adjustments proposed                 31,30,50,209
                                       4                   ITA No.2545/PN/2012
                                                                   A.Y. 2008-09



4. The Assessing Officer proposed a draft assessment order under

Section 143(3) read with Section 144C(1) of the Act proposing adjustments to

the value of international transactions as determined by the TPO and against

such draft assessment order assessee preferred objections before the DRP.

The DRP vide its order dated 05.09.2012 affirmed the adjustments to the ALP

of the international transactions as proposed by the TPO. Accordingly, the

Assessing Officer finalized assessment under Section 143(3) read with

Section 144C(3) of the Act dated 30.10.2012 determining the ALP of the

international transactions in conformity with the order of the TPO passed

under Section 92CA(3) of the Act.

5. The dispute before us primarily relates to the adjustments made to the

total income of the assessee on account of re-determining the ALP of the

international transactions over and above the value of such transactions stated

in the account books. With regard to the wire manufacturing segment, the

stated values have been enhanced by a sum of Rs.60,48,143/- and in respect

of the Tools manufacturing segment the adjustment to the stated values has

been made to the extent of Rs.30,70,02,006/-.

6. At the outset, we may dispose of Grounds of Appeal No. 3, 5, 6, 9, & 10

in so far as they relate to the adjustment proposed by the TPO of

Rs.60,48,143/- in respect of international transactions of the manufacturing

wire segment.

7. In this context, the learned counsel for the assessee explained that the

TPO in his order dated 28.10.2011 had proposed an addition of

Rs.60,48,143/- in respect of international transactions of the assessee’s

manufacturing wire segment which was also proposed by the Assessing

Officer in the draft assessment order under Section 143(3) read with Section

144C(1) dated 26.12.2011 and also upheld by the DRP. Further, in para 7.3 of
5 ITA No.2545/PN/2012
A.Y. 2008-09

the final assessment order dated 30.10.2012 the Assessing Officer noted the

said adjustment proposed by the TPO. So, however, it is contended that while

computing the income at the end of the assessment order, the Assessing

Officer has not actually added the said sum in the returned income and no tax

thereon has been demanded. The learned counsel explained that in order to

be cautious and not to be denied an adjudication on technicality, the assessee

still preferred the aforesaid Grounds while filing the appeal before the Tribunal.

8. The above factual matrix brought out by the learned counsel is not

disputed by the learned CIT(DR) and it is pointed out that the adjustment was

discussed in the body of the assessment order but it remained to be

considered in the computation of income, which was merely a mistake

rectifiable under Section 154 of the Act by the Assessing Officer.

9. Be that as it may, it is quite clear that no such addition has been

ultimately made in the computation of income by the Assessing Officer and tax

liability in relation to such adjustment has not been determined against the

assessee. In this background, the only premise that can be drawn is that the

grievances raised in the Grounds of Appeal Nos. 3, 5, 6, 9, & 10 relating to the

addition of Rs.60,48,143/- in respect of international transactions of the

manufacturing wire segment, as proposed by the TPO in his order dated

28.10.2012, do not arise out of the impugned order of the Assessing Officer

passed under Section 143(3) read with Section 144C(13) of the Act dated

30.10.2012. Therefore, the aforesaid Grounds do not require any adjudication

for the present. So, however, we may make it clear that if in future the

Assessing Officer takes steps to give effect to the said addition and determine

tax liability thereof, assessee shall be at liberty to appeal against such

addition, if so advised in law. Therefore, with the aforesaid remarks, we

dismiss the Grounds of Appeal Nos. 3, 5, 6, 9 & 10 in respect of international
6 ITA No.2545/PN/2012
A.Y. 2008-09

transactions of manufacturing wire segment as they do not arise out of

impugned order of the Assessing Officer dated 30.10.2012 (supra).

10. Now, we may take-up the remaining Grounds of Appeal which primarily

deal with the grievance of the assessee with regard to the adjustments made

to the stated value of the international transactions in the Tools manufacturing

segment. In this regard, it is to be noted that the Tools manufacturing segment

of the assessee is engaged in the manufacture of cemented carbide and high

speed steel tools for metalworking applications and tools for mining and

construction. The international transactions pertaining to the Tools

Manufacturing segment comprised of :-

(i) Import of Raw Material, Spares, Consumables, etc.;

      (ii)      Import of promotional material;
      (iii)     Import of fixed assets
      (iv)      Export of Finished Goods'
      (v)       Provision for technical services;
      (vi)      Payment of IT support services fees;
      (vii)     Payment of Management fees; and,
      (ix)      Payment of technical and training fees.



11. In respect of above transactions pertaining to the Tools manufacturing

segment, assessee contended that the principal activity was of manufacturing

of tools. Since the aforestated international transactions formed an integral

and integrated part of its manufacturing tools business, the aforesaid

transactions were considered to be closely linked with the activity of

manufacturing of tools and thus assessee adopted a combined transactions

approach in order to carry out the benchmarking analysis. Accordingly,

assessee applied the Transactional Net Margin Method (TNM method) as the

most appropriate method in order to benchmark the international transactions

of the Tools manufacturing segment. The TPO has accepted the TNM method

of benchmarking, as adopted by the assessee subject to certain variations

which are disputed before us.

7 ITA No.2545/PN/2012

A.Y. 2008-09

12. In so far as the Ground of Appeal No. 1 is concerned the same is

general in nature and requires no adjudication and hence it dismissed.

13. In Ground of Appeal No. 2, the grievance of the assessee is that while

determining the ALP of the international transactions with its AEs, the

Assessing Officer’s jurisdiction is limited to making adjustment in respect of

transactions with AEs alone and not in respect of non-AE transactions

undertaken by the assessee. It is contended that in the present case, the

adjustment determined in respect of Tools manufacturing segment is with

respect to the total sales undertaken by the assessee, including the

transactions with the non-AEs. In this context, the learned counsel submitted

that the aforesaid plea is notwithstanding the primary grievance of the

assessee that the determination of ALP by the Assessing Officer is also

otherwise unjustified. The learned counsel referred to the following

computation of adjustment made by the TPO in para 7.1 of his order :-

           Sr No     Particulars                                             Figures
             1       Total cost of manufacturing of tools segment            547,02,63,000
             2       Operating margin of the assessee (PLI)                  2.01%
             3       Operational margin adopted by TPO                       7.63%
             4       Difference between the PLI                              5.62%
             5       Arm's length profit @ 7.63% on cost                     41,73,81,066
             6       Arm's length profit shown by the assessee               11,03,79,000
             7       95% of the ALP determined (profit)                      36,31,60,213
             8       ALP adjustment (41,73,81,066 (-) 11,03,79,000           30,70,02,066



14. The learned counsel submitted even after assuming that transfer pricing

adjustment was warranted, the TPO has erroneously made adjustment in

respect of all transactions of the assessee’s Tools manufacturing segment and

not limited the adjustment to the transactions with its AEs. In support of his

proposition the learned counsel relied upon the following decisions of the

Tribunal : – (i) IL Jin Electronics India (P) Ltd. vs. ACIT (2010) 36 SOT 227

(Delhi); (ii) Kyungshin Industrial Motherson Limited vs. DCIT, ITA
8 ITA No.2545/PN/2012
A.Y. 2008-09

No.1396(Del)/2009 dated 21.10.2010; and, (iii) Demag Cranes & Components

(India) Pvt. Limited vs. DCIT, ITA No. 120/PN/2011 dated 04.01.2012.

15. On this aspect, the learned CIT(DR) reiterated that the adjustment was

appropriately determined by the lower authorities and pointed out that the

assessee had itself adopted the methodology of comparing the segmental net

margins with those of the comparable cases and therefore adjustment has to

be made to the profit/margins at the entity/segmental level.

16. We have carefully considered the rival submissions. In our considered

opinion, the TPO has clearly misdirected himself in computing the transfer

pricing adjustment in respect of all transactions of the assessee’s Tools

manufacturing segment and not limiting it to the transactions with the AEs.

Pertinently, the entire exercise of conducting a transfer pricing analysis is to

compute ALP of an international transaction alone. Section 92(1) of the Act

prescribes that any income arising from an international transaction shall be

computed having regard to the ALP. Therefore, the objective of the computing

ALP is to determining the income arising from an international transaction.

Therefore, the adjustment that is required to be made is to be limited to the

international transactions with the AEs and not to the entity/segmental level

transactions. Similar view has been expressed by our Coordinate Benches in

the cases of (i) IL Jin Electronics India (P) Ltd. (supra); (ii) Kyungshin Industrial

Motherson Limited (supra); and, (iii) Demag Cranes & Components (India) Pvt.

Limited (supra). Following the aforesaid precedents, we therefore find enough

merit in the plea of the assessee and conclude by directing the Assessing

Officer to re-compute the adjustment, if so warranted, only with regard to the

transactions in the Tools manufacturing segment carried out with the AEs and

not to the entire transactions in the segment which include the transactions

with the non-AEs also. In other words, the addition is to be confined, if

otherwise warranted, to the component of transactions with the AEs alone and
9 ITA No.2545/PN/2012
A.Y. 2008-09

not to the entire segmental results. Thus, on Ground of Appeal No. 2,

assessee succeeds as above.

17. In Ground of Appeal No. 4, the point made out is that in its Transfer

Pricing Study (in short ‘TP Study’) assessee had considered the Profit Level

Indicator (i.e. PLI) as Operating Profit/Operating Revenue. Accordingly, the

PLI of assessee’s Tools manufacturing segment was calculated at 1.98% as

detailed at page 172 of the Paper Book. The learned counsel pointed out that

the PLI adopted by the assessee in its TP Study, being Operating

Profit/Operating Revenue has been altered by the TPO without giving any

opportunity of being heard in this matter. In this context, the learned counsel

referred to the computation of adjustments made to the ALP contained in the

order of the TPO whereby the PLI adopted by the TPO is Operating

Profit/Operating Cost. Learned counsel pointed out that at no stage the TPO

had called upon the assessee to justify the PLI adopted by it in the TP Study

during the course of transfer pricing proceeding.

18. In the above background, the learned counsel submitted that assessee

would be satisfied if the matter is remanded back to the file of the Assessing

Officer/TPO to allow the assessee a reasonable opportunity of being heard on

this aspect and thereafter it may be decided by the said authorities as per law.

Pointing out that such an infirmity was raised before the DRP, a reference was

made to para 5.3 of the DRP order and it is contended that the issue of denial

of natural justice to the assessee has not been appropriately addressed.

19. On the other hand, the learned CIT(DR) appearing for the Revenue has

pointed out that the assessee had raised objections before the DRP and the

PLI adopted in the TP Study has not been accepted by the DRP.
10 ITA No.2545/PN/2012

A.Y. 2008-09

20. We have carefully considered the rival submissions. At the level of

AO/TPO it is quite evident that with regard to the altering of PLI from the

“return of sales”, as adopted by the assessee to the “return on cost” done by

the TPO, no opportunity was allowed to the assessee. In-fact, it is also

pertinent to note from the orders of the TPO/AO that no reasons have

assigned for changing the PLI as used by the assessee in the TP Study. In our

considered opinion, such an approach impinges on the principles of natural

justice and the assessee is rightfully aggrieved. In so far as the opportunity of

raising objections before the DRP is concerned, in our view, the same cannot

take the place of an opportunity that was required to be allowed before the

TPO/AO. The assessee had an opportunity before the DRP is of no

consequence for it is the fairness and reasonableness of furnishing of an

explanation before the TPO/AO which is the issue. In-fact, in a somewhat

similar situation the Hon’ble Supreme Court in the case of Tin Box Company

vs. CIT (2001) 249 ITR 216 (SC) held that once it is established that the

Assessing Officer had not given to the assessee an appropriate opportunity of

being heard, that the assessee had an opportunity before the higher appellate

authorities was really of no consequence, for it was the assessment order that

counted inasmuch as the assessment order was required to be made only

after the assessee had been allowed a reasonable opportunity of being heard.

Considered in the aforesaid light, in the present case it is axiomatic that so far

as the issue of the PLI adopted by the assessee in respect of Tools

manufacturing segment of Operating Profit/Operating Revenue is concerned,

the same has been altered by the TPO without giving the assessee any

opportunity of being heard and therefore in our view the matter ought to be

remanded back to the AO/TPO for consideration afresh. We hold so. Thus, on

this aspect also assessee succeeds.

21. By way of Ground of Appeal Nos. 7 and 8, assessee has assailed the

addition of Rs.30,70,02,006/- made by the Assessing Officer by holding that
11 ITA No.2545/PN/2012
A.Y. 2008-09

international transactions of the Tools manufacturing segment were not at

arm’s length. The appellant-company has assailed the said addition on three

aspects. The first aspect is that the Assessing Officer erred in rejecting the

segmental results of Rajasthan Udyog & Tools Limited and Hittco Tools

Limited, which have been adopted by the assessee as comparable cases. On

the said aspect, plea of the assessee is that out of the five comparables cases

considered by it in its TP Study, Assessing Officer accepted three of them and

excluded two, namely, Rajasthan Udyog & Tools Limited and Hittco Tools

Limited. A common point raised against the exclusion of the two companies

from the list of comparables is that the said companies were adopted by the

assessee as comparables in the TP Study for the earlier two assessment

years of 2006-07 and 2007-08 in respect of Tools manufacturing segment and

the same was accepted by the Revenue in the said years. It was, therefore,

contended that the Assessing Officer erred in rejecting the said concerns from

the list of comparables in this year. Apart from the aforesaid with regard to the

M/s Rajasthan Udyog & Tools Limited, the learned counsel pointed out that

the reasons advanced by the Assessing Officer to reject the same on the

ground of continuous losses and lack of functional comparability was factually

incorrect. With regard to the exclusion of Hittco Tools Limited, the learned

counsel pointed out that the reasons advanced by the Assessing Officer for

the same were also unjustified. The segmental results of the said concern

have been referred in the Paper Book to point out that the concern was

declaring profits and was not a consistently loss-making concern as observed

by the TPO. In sum and substance, the plea of the assessee is that the two

concerns have been unjustly excluded from the list of comparables.

22. The assessee had computed its PLI at 1.98% with respect to its Tools

manufacturing segment. The assessee benchmarked the same against the

arithmetic mean of the average operating margins of the following five

comparables as per which the operating margin of the assessee was higher
12 ITA No.2545/PN/2012
A.Y. 2008-09

and therefore the international transactions between the assessee and its AEs

in respect of the activity of Tools manufacturing segment was considered to be

at an arm’s length from Indian Transfer Pricing perspective. The details of the

five comparable cases selected by assessee is as under :-

                  Name of the company                Average operating margin
                                                     on operating revenue (%)
         Electronica Machine Tools Ltd.                       1.30%
         Hittco Tools Ltd.                                    -7.48%
         Rajasthan Udyog & Tools Limited                     -18.18%
         Rapicut Carbides Ltd.                                8.89%
         Zenith Birla (India) Ltd.                           15.03%

         Arithmetic mean                                      -0.09%


23. However, the Assessing Officer has excluded M/s Rajasthan Udyog &

Tools Limited and Hittco Tools Limited from the list of comparables. As per the

discussion in para 7.1 of the order of the TPO, M/s Rajasthan Udyog & Tools

Limited has been excluded on account of it being in continuous losses and

functionally incomparable. In this context, we find that the Tools manufacturing

segment of the assessee is engaged in the manufacture of cemented carbide

and high speed steel tools for metalworking applications and tools for mining

and construction. M/s Rajasthan Udyog & Tools Limited is engaged in the

manufacturing of diamonds tools, castings and cutting machines stone edge

and spare parts. It has primarily three segments – Diamond Tools and Gang

Saw Blades, Stone Cutting Machines and Diaga Mono Blade Cranes. The

assessee considered the Diamond Tools and Gang Saw Blades segment as

comparable for the purpose of benchmarking of its international transactions in

Tools manufacturing segment. A similar position has been taken by the

assessee in its TP Study for assessment year 2006-07 as well as for

assessment year 2007-08, whereby the Diamond Tools and Gang Saw Blades

segment of the said concern was considered as comparable for purpose of

benchmarking the international transactions carried out in its Tools

manufacturing segment. In the Paper Book filed before us, assessee has

furnished copies of orders passed by the TPO for assessment year 2006-07
13 ITA No.2545/PN/2012
A.Y. 2008-09

and 2007-08 under Section 92CA(3) of the Act dated 30.10.2009 and

29.10.2010 respectively whereby no adjustments with respect to the

international transactions in the Tools manufacturing segment have been

made. In other words, the adoption of segmental result of M/s Rajasthan

Udyog & Tools Limited as a comparable case has been accepted. In the

current year too we find that functional analysis of the said concern made in

the TP Study, copy of which has been placed in the Paper Book, is similar to

what was considered by the assessee in the other two assessment years

2006-07 and 2007-08.

24. The learned CIT(DR) has argued that merely because the said concern

was used as a comparable in the immediately two preceding years cannot be

a reason to adopt the said concern in the instant year also because each year

is independent and comparability of the case is to be tested for each and

every year separately.

25. In our considered opinion, the proposition advanced by the learned

CIT(DR) cannot be faulted because for the purpose of determination of ALP,

an international transaction has to be compared with uncontrolled and

unrelated transactions by using the data relating to the financial year in which

the international transaction has been entered into. In other words, the

contemporaneous information and documents are liable to be considered as

far as possible for the purposes of comparing uncontrolled transactions with

the international transactions sought to be tested. So, however, it is also to be

noted in the present case, that the Revenue has not made out any case as to

in what manner, the Diamond Tools and Gang Saw Blades segment of M/s

Rajasthan Udyog & Tools Limited is carrying out different activities then those

carried out in assessment years 2006-07 and 2007-08. The aforesaid aspect

becomes important because factually speaking in the assessment years

2006-07 and 2007-08, the said concern’s Diamond Tools and Gang Saw
14 ITA No.2545/PN/2012
A.Y. 2008-09

Blades segment has been accepted as functionally comparable to assessee’s

Tools manufacturing segment. From the impugned orders of the lower

authorities, we do not find any such distinction being brought out. On the basis

of the material on record, it is evident that the assertion of the TPO that the

said concern is functionally incomparable is a mere bald assertion devoid of

factual support. Therefore, the action of the TPO in excluding the said

concern, in our view, is not well founded and is liable to be set-aside.

26. Another reason advanced by the TPO to reject the said comparable is

that the said concern is in continuous losses. On this aspect, we find that as

per the data contained in the TP Study for assessment year 2006-07, copy of

which has been placed in the Paper Book, the Diamond Tools and Gand Saw

Blades segment of the said concern was declaring profits in 2004, 2005 and

2006 also. However, it is only for the year under consideration that the

relevant segment of the said concern has been declared a loss. Therefore, it

cannot be factually tenable to hold that the relevant segment of the said

concern has been continuously making losses, as sought to be made out by

the TPO. For both the above reasons advanced by the TPO we have not

found any factual support and therefore we direct the Assessing Officer to

include the results of the Diamond Tools and Gang Saw Blades segment of

M/s Rajasthan Udyog & Tools Limited as comparable for the purposes of

carrying out the benchmarking analysis of the international transactions

pertaining to Tools manufacturing segment of the assessee.

27. The other dispute is with regard to the exclusion of M/s Hittco Tools

Limited from the list of comparables. The said concern is said to be engaged

in the manufacturing of drill bits and for the said reason assessee treated it as

a comparable for the purposes of transfer pricing analysis of its Tools

manufacturing segment. The learned counsel pointed out that initially

assessee had made an error while stating the operating margins of the said
15 ITA No.2545/PN/2012
A.Y. 2008-09

concern but it rectified its mistake in the course of proceedings before the

TPO. The learned counsel submitted that the said concern was making profits

in assessment year 2006-07 and it is not a case where it was making losses

continuously. The learned counsel pointed out that even for the assessment

year under consideration, assessee corrected the error by making an

appropriate adjustment to the figure of profit of M/s Hittco Tools Limited so as

to exclude the extraordinary profits on account of write-back of loans waived

by banks. It was therefore, contended that the said concern has been rejected

on mere surmises without appreciating the correct factual position. It was

further contended that even in the assessment year 2006-07 and 2007-08 the

said concern has been taken as a comparable case and the same has not

been disputed by the Assessing Officer/TPO.

28. On this aspect, the learned CIT(DR) has referred to the discussion

made by the TPO in the impugned order and has pointed out that assessee

had himself submitted the profit margin of the said concern differently on

different occasions. Apart therefrom it is sought to be made out that the said

concern is also stated by the TPO to be functionally incomparable.

29. We considered the rival stands and find that no cogent reasons have

been advanced by the TPO to exclude the said concern from the list of

comparables. Ostensibly, the said concern was accepted as functionally

comparable in assessment years 2006-07 and 2007-08 and there is no

material to depart from the said proposition especially when no case has been

made out that in the instant assessment year that the activities of the said

concern have undergone any change. The other point made by the TPO to the

effect that the said concern is consistently loss making is also not borne out of

the record. It is only in 2004 and 2005 that the said concern had losses but it

had profits in 2006 and also for the subsequent years ending on 31.03.2010

and 31.03.2011 the said concern is making profits, as per the material placed
16 ITA No.2545/PN/2012
A.Y. 2008-09

in the Paper Book. Therefore, it cannot be said that the said concern is

consistently loss-making and accordingly, we do not find enough reasons to

sustain the action of the TPO in excluding the said concern from the list of

comparable.

30. Another aspect made out by the assessee is that the TPO did not allow

the plea of the assessee to remove an extraordinary debit made in its Profit

and Loss account of Rs.2.8 crores while computing the operating margin for

determining the PLI. The assessee claimed that this amount has been written-

off from the value of assets of its Titex Division, which had the effect of

debiting additional depreciation to the Profit and Loss account resulting in

reduction of profits. As per the appellant, it is an extraordinary and non-

recurring charge and represents a one time debit in Profit and Loss account to

reflect the abnormal reduction in the value of the assets of Titex Division.

Thus, the said “Impairment Loss” was required to be removed so as to

compute the normal profits.

31. At the outset, it is submitted that if such extraordinary “impairment loss”

is reduced from the cost and the profit margin is enhanced, the PLI of Tools

manufacturing segment would be enhanced and in comparison to the average

mean of the PLI’s of the comparable cases as determined by the TPO it would

be higher and therefore no adjustment would be required to be made for

determination of ALP of the international transactions in the Tools

management segment.

32. At the time of hearing before us, the learned counsel pointed out that

even if one of the comparables from the companies rejected by the TPO i.e.

M/s Rajasthan Udyod & Tools Limited or M/s Hittco Tools Limited is accepted

as comparable and every other aspect of the TPO and the DRP order is

accepted i.e. change in the manner of determination of PLI is accepted and
17 ITA No.2545/PN/2012
A.Y. 2008-09

the “impairment loss” is considered as part of operating expenditure and no

other adjustment favourable to the assessee is made even then no transfer

pricing adjustment can be made in respect of Tools manufacturing segment,

since the operating margins of the assessee would fall within the + margins

permitted by Section 92C of the Act and a working in support of the aforesaid

plea has also been furnished during the course of hearing. In terms of the said

working, which is reproduced below, the PLI of assessee’s Tools management

segment of 1.98% is higher than the arithmetic mean of comparable margins,

thus the international transactions between the assessee and the AEs in

respect of Tools management segment can be considered to be at arm’s

length price from the Indian Transfer pricing perspective :-

SANDVIK ASIA PRIVATE LIMITED
A.Y. 2008-09
Operating Profit/Sales – PLI Operating Profit/Total Cost – PLI
Hittco Rajasthan Hittco Rajasthan
Tools is Udyog Tools is Udyog
Comparables % OP/Sales added added % OP/Cost added added
Electronica 0.04 0.04 0.04 0.05 0.05 0.05
Machine Tools
Ltd.

Hittco    Tools         -18.95    -18.95                    -15.93      -15.93
Ltd.
Rajasthan               -63.25                 -63.25       -38.75                     -38.75
Udyog         &
Tools Limited
Rapicut                 10.60      10.60         1060        11.85      11.85          11.85
carbides Ltd.
Zenith     Birla          9.92       9.92        9.92        11.01      11.01          11.01
(India) Ltd.
       Average          -12.33       0.04      -10.67        -6.35       1.75           -3.96



33. The aforesaid plea of the assessee has not been factually faulted by

the Revenue before us. Since we have already upheld assessee’s plea to

include the two companies i.e. M/s. Rajasthan Udyog & Tools Limited and M/s

Hittco Tools Limited as comparables in order to benchmark its international

transaction transactions of the Tools manufacturing segment, the other aspect

of excluding the debit of Rs.2.8 crores representing ‘Impairment Loss’ in order

to calculate the PLI of the assessee is not being adjudicated as the same is

rendered academic. Thus, Grounds of Appeal No. 7 & 8 are allowed to above

extent.

18 ITA No.2545/PN/2012

A.Y. 2008-09

34. In so far as the Grounds of Appeal Nos. 11 and 12 are concerned

relating to the application of the proviso of Section 92C of the Act and non-use

of multiple years data of the comparables as canvassed by the assessee are

concerned, the learned counsel pointed out that in case of the decision on the

plea of the assessee contained in Grounds of Appeal Nos. 2, 4, 7 & 8 is taken

in favour of the assessee or the matter is set-aside in view of the violation of

principle of natural justice, the aforesaid two Grounds will become infructuous

and would not require any adjudication. For the aforesaid reasons, the

aforesaid Grounds are treated as infructuous and are accordingly disposee-

off.

35. Thus, in conclusion, we direct the Assessing Officer to re-compute the

ALP of the international transactions in respect of the Tools manufacturing

segment as per our above discussion.

36. In the result, appeal of the assessee is partly allowed.

Order pronounced in the open Court on 27 th September, 2013.

                Sd/-                                            Sd/-
        (R.S. PADVEKAR)                                (G.S. PANNU)
       JUDICIAL MEMBER                             ACCOUNTANT MEMBER

Pune, Dated: 27 th September, 2013
Sujeet

Copy of the order is forwarded to: -
         1)     The Assessee;
         2)     The Department;
         3)     The DRP, Pune;
         4)     The DR, "A" Bench, I.T.A.T., Pune;
         5)     Guard File.

                                                                    By Order
//True Copy//


                                                          Sr. Private Secretary
                                                              I.T.A.T., Pune
 

Mr.Manoj Jain vs Cbec on 26 August, 2013

Central Information Commission
Mr.Manoj Jain vs Cbec on 26 August, 2013
                CENTRAL INFORMATION COMMISSION
                 Room No. 308, B-Wing, August Kranti Bhawan, Bhikaji Cama Place, New Delhi-110066


                           File No. CIC/SS/A/2013/000371/LS

   Appellant                          :         Manoj Jain

   Respondent              :          Commissioner of Customs (General), Mumbai

   Date of hearing          :         26.8.2013

   Date of decision         :         26.8.2013

   FACTS

Heard today dated 26.8.2013. Appellant present. The
public authority is not represented, despite notice.

2. During the hearing, the appellant requests for disclosure of
information only on one para of his RTI application dated 16.7.2012. The said
para is extracted below:-

“Reason(s) for not relieving Shri Arvind Kumar Singh, presently posted as
Additional Commissioner of Customs (General), Mumbai in terms of CBEC
order No. 97/2012 dated the 7th June, 2012 issued vide F. No. A-
2012/02/2012-Addl.”

3. During the hearing, it transpires that Shri Arvind Kumar
Singh has since been relieved from his post from Mumbai. Hence, the appellant
wishes to withdraw the appeal. Hence, dismissed as withdrawn.

Sd/-

(M.L. Sharma)
Central Information Commissioner

Authenticated true copy. Additional copies of orders shall be supplied against
application and payment of the charges, prescribed under the Act, to the CPIO of
this Commission.

(K L Das)
Dy. Registrar
Address of parties

1. Shri S. P. Pradhan
Dy. Commissioner of Customs and CPIO,
O/o the Commissioner5 of Customs (General),
RTI Cell, New Custom House, Ballard Estate,
Mumbai – 400001

2. Shri Manoj Jain
Flat – 285, Block-29, Type-3 Qtrs.
CGS Colony, Ekta Vihar, Sec-25,
CBD Belapur, Navi Mumbai – 14

Manager, Uti Bank Limited vs Dr. R.C. Gupta And Others on 22 August, 2013

State Consumer Disputes Redressal Commission
Manager, Uti Bank Limited vs Dr. R.C. Gupta And Others on 22 August, 2013
 STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
                         DEHRADUN

                    FIRST APPEAL NO. 35 / 2011

Manager, UTI Bank Limited
(Now Axis Bank Limited)
having its Branch at Kanchenjunga Building
Upper Ground Floor, 18, Barakhamba Road
New Delhi and now Axis Bank Limited
Statesmen Building, 148, Barakhamba Road,
New Delhi
                                    ......Appellant / Opposite Party No. 1

                                 Versus

1.    Dr. R.C. Gupta
      Reader, Department of Botany
      Kumaun University Campus
      Almora

2.    Mrs. Shashi Gupta
      C/o Dr. R.C. Gupta
      52, Siree, Lala Bazar
      Almora
                              ......Respondent Nos. 1 and 2 / Complainants

3.    Sh. Ravinder Kumar Agarwal
      Chief Representative, UTI
      Ashoka Hotel Building
      Lala Bazar, Almora
                             ......Respondent No. 3 / Opposite Party No. 2

Sh. S.M. Joshi, Learned Counsel for the Appellant
None for Respondent Nos. 1 and 2
Sh. Pradeep Bartwal, Learned Counsel for Respondent No. 3

Coram: Hon'ble Mr. Justice B.C. Kandpal, President
       Mr. C.C. Pant,                    Member
       Mrs. Kusum Lata Sharma,           Member

Dated: 22/08/2013

                                ORDER

(Per: Justice B.C. Kandpal, President):

This is an appeal under Section 15 of the Consumer Protection
Act, 1986 against the order dated 18.12.2010 passed by the District
2

Forum, Almora in consumer complaint No. 66 of 2001, whereby the
District Forum has allowed the consumer complaint and directed the
opposite party No. 1 – appellant before this Commission to pay sum
of Rs. 12,600/- to the respondent Nos. 1 and 2 – complainants
together with interest @15% p.a. from 28.09.1998 till payment.

2. Briefly stated, the facts of the case as mentioned in the
consumer complaint, are that the complainants applied for shares of
UTI Bank Limited and submitted the demand drafts of the required
amount to UTI Bank Limited through respondent No. 3 – Sh.
Ravinder Kumar Agarwal, but the complainants did not receive the
share certificates. On inquiry, it was found that the demand drafts
sent by the complainants were attached with some other application
form. The complainants had written the serial number of their
application and their names on the overleaf of the bank drafts, so that
the same could not be misused. Alleging deficiency in service on the
part of the opposite parties, the complainants filed a consumer
complaint before the District Forum, Almora.

3. The appellant filed written statement before the District Forum
and pleaded that the complainants wrongly submitted their application
through respondent No. 3 – Sh. Ravinder Kumar Agarwal and there
was no such procedure mentioned in the offer document; that Sh.
Ravinder Kumar Agarwal was not their authorised agent; that there
has been neglect on the part of the complainants; that the application
form was not properly submitted and that there is no deficiency in
service on their part.

4. The respondent No. 3 filed written statement before the District
Forum and pleaded that the consideration amount of the shares was
3

received by UTI Bank Limited and that there has not been any
deficiency in service on his part.

5. The District Forum, on an appreciation of the material on
record, allowed the consumer complaint vide impugned order dated
18.12.2010 in the above terms. Aggrieved by the said order, the
appellant has filed this appeal.

6. None appeared on behalf of respondent Nos. 1 and 2. We have
heard the learned counsel for the appellant and respondent No. 3 and
have also perused the record.

7. The main ground taken by the appellant is that Sh. Ravinder
Kumar Agarwal was not their authorised agent and that the
complainants should not have handed over their application to him. It
is an admitted fact that the application forms and the demand drafts of
the required amount were received by the appellant and the same were
encashed by the appellant. The appellant has also admitted that
overleaf the demand drafts, the application number and the name of
the applicants were also mentioned. If Sh. Ravinder Kumar Agarwal
was not the authorised agent of the appellant, then why the application
forms were accepted and the amount of the demand drafts was
realized by the appellant. The District Forum has rightly held that if
Sh. Ravinder Kumar Agarwal was not the agent of the bank, then the
applications forms forwarded through him, should not have been
accepted and the consideration amount of the shares should not have
been realized by the bank by encashing the demand drafts. We also
endorse the said view of the District Forum.

8. So far as the territorial jurisdiction of the District Forum,
Almora in the matter is concerned, the District Forum has rightly held
4

that the part of cause of action has arisen in favour of the
complainants at Almora and, as such, the consumer complaint was
maintainable before the District Forum, Almora.

9. It was also argued that the complainants do not fall under the
category of “consumer”. We do not find any force in the said
submission raised on behalf of the appellant, for the reason that the
complainants have paid the amount for purchase of shares, which
were not allotted to them and nor the amount was refunded. Thus, the
complainants fall under the category of “consumer” and their
consumer complaint was maintainable.

10. The District Forum has considered all the aspects of the matter
and has passed a reasoned order, which does not call for any
interference, except on the count that the rate of interest awarded by
the District Forum @15% p.a. is on the higher side. In our considered
opinion, the same need to be reduced to 7% p.a. This way, the appeal
is to be partly allowed and the order impugned is to be modified
accordingly.

11. For the reasons aforesaid, appeal is partly allowed. Order
impugned dated 18.12.2010 of the District Forum is modified to the
extent that the rate of interest is reduced from 15% p.a. to 7% p.a.
Rest of the impugned order passed by the District Forum is confirmed.
No order as to costs.

(SMT. KUSUM LATA SHARMA) (C.C. PANT) (JUSTICE B.C. KANDPAL)
K