DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-7(1)(1), BANGALORE vs. M/S. UE DEVELOPMENT INDIA PVT LTD, BANGALORE

O R D E R

Per Shri A.K. Garodia, Accountant Member

by the revenue are as under. “1. The order of the learned CIT (A) is opposed to law and facts of the case. 2. "Whether on the facts and in the circumstances of the case, the CIT(A) is right in law in holding that in mirror transactions, ALP adjustments cannot be done, i.e., if one transaction is treated as at Arm's length, no adjustment can be done on the other related corresponding transaction of the AE without appreciating that this stand is against the provisions of section 92(3) of the I. T Act, 1961"?

3. For this and other grounds that may be urged at the time of hearing, it is prayed that the order of the CIT(A) in so far as it relates to the above grounds may he reversed and that of the Assessing Officer may be restored.

4. The appellant craves leave to add, alter, amend and/or delete any of the grounds mentioned above.”

3. The ld. DR of revenue supported the assessment order whereas the ld. AR of assessee supported the order of ld. CIT(A). He also submitted that it is noted by ld. CIT(A) in para 5 of his order that the appeal of the revenue against the order of ld. CIT(A) for Assessment Year 2009-10 was dismissed Page 2 of 4 by the Tribunal in IT(TP)A No. 347/Bang/2014 dated 05.05.2017 relying on the earlier decision in the case of the assessee for Assessment Years 2004- 05 to 2007-08 dated 30.08.2013. He submitted that the relevant Tribunal order are available on pages 165 to 181 being the Tribunal order in assessee’s own case for Assessment Years 2004-05 to 2007-08 in IT(TP)A Nos. 1104/Bang/2011, 284 to 286/Bang/2012 dated 30.08.2013 and subsequent orders are also available on pages 182 to 195 for Assessment Year 2008-09, pages 196 to 203 for Assessment Year 2009-10. He submitted that the facts of the present year are similar and hence, the order of ld. CIT(A) should be confirmed. It was also submitted by him that in to 55/2014 all dated 12.07.2018, Hon'ble Karnataka High Court has confirmed all the four Tribunal orders in assessee’s own case for Assessment Years 2004-05 to 2007 – 08 and he submitted a copy of these four judgments.

by the assessee are allowed as indicated above."

6. The facts in the case for the current year remain similar as earlier years. The appellant has also filed a copy of the assessment order under section 143(3) dated 15-03-2013 in the case of the AE, United Engineers (Malaysia) Berhard for AY 2010-11 where no adjustment has been made by the AO. Under the above facts and circumstances, respectfully following the decisions of the ITAT (supra) in the case of the appellant, the TP adjustment effected by the AO/TPO is struck down.”

5. From the above paras reproduced from the order of ld. CIT(A), it is seen that his decision is on the basis of earlier Tribunal orders in assessee’s own case for Assessment Years 2004-05 to 2009-10. No difference in facts could be pointed out by ld. DR of revenue in the present year. The Tribunal order in Page 3 of 4 assessee’s own case for Assessment Years 2004-05 to 2007-08 is approved by the Hon'ble Karnataka High Court in its four judgments in to 55/2014 all dated 12.07.2018. Before us, the ld. DR of revenue had placed reliance on the Tribunal order rendered in the case of Filtrex Technologies (P.) Ltd. Vs. ACIT as reported in [2018] 93 taxmann.com 301 (Bangalore – Trib.). He submitted a copy of this Tribunal order and it was pointed out before us that in para 16 of this Tribunal order, the Tribunal has noted about the various Tribunal orders rendered in the case of UE Development India (P.) Ltd. Vs. DCIT in IT(TP)A No. 1104/Bang/2011 and IT(TP)A Nos. 284 to 286/Bang/2012 for Assessment Years 2007-08 and 2004-05 to 2006-07. After this, in para 29 of the Tribunal order, the Tribunal has restored the matter back to the file of TPO for fresh decision. On perusal of this tribunal order rendered in the case of Filtrex Technologies (P.) Ltd. vs. ACIT (Supra), it is seen that in that case, the tribunal has decided the issue by following a judgment of Hon’ble Delhi High Court rendered in the case of CIT vs. Cushman & Wakefield India (P) Ltd. as reported in 46 Taxman.com 317 and the order of Special Bench of the tribunal rendered in the case of Instrumentarium Corporation Ltd. Vs ADIT as reported in 71 Taxman.com 193 but in the present case, the Tribunal order in assessee’s own case for A. Ys. 2004 – 05 to 2007 – 08 has been approved by the Hon'ble Karnataka High Court as per its four Judgments all dated 12.07.2018 which is after the date of this Tribunal order i.e. 11.04.2018 and in view of this fact that ld. DR of revenue could not point out any difference in facts in present year and in these four years for which the tribunal order is approved by Hon'ble Karnataka High Court, we decline to interfere in the order of ld. CIT(A) by respectfully following these four judgments of Hon’ble Karnataka High Court in assessee’s own case for Assessment Years 2004-05 to 2007-08.