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Income Tax Appellate Tribunal, DELHI ‘I-2’ BENCH,
Before: SHRI N.K. BILLAIYA, & MS. SUCHITRA KAMBLE
PER N.K. BILLAIYA, ACCOUNTANT MEMBER,
This appeal by the assessee is preferred against the order dated 12.09.2017 framed u/s 143(3) r.w.s 144C(13) of the Income-tax Act, 1961 [hereinafter referred to as 'the Act' for short] pertaining to A.Y 2013-14.
2. The substantive grievances of the assessee relate to:
(i) Transfer Pricing adjustment; (ii) Valuation of shares; and, (iii) Rectification of mistakes in respect of application of correct rate of Income tax.
3. Vide application dated 19.01.2018, the appellant raised the following additional ground:
“That on the facts and circumstances of the case, the transfer pricing adjustment made qua capital gains arising on sale of shares by the appellant foreign company to another non resident associated enterprise, being violative of the non discrimination clause under Article 25(1) of the India-Italy Tax Treaty [“the Treaty”] calls for being deleted.”
The representatives of both the sides were heard at length, the case records carefully perused and with the assistance of the ld. Counsel, we have considered the documentary evidences brought on record in the form of Paper Book in light of Rule 18(6) of ITAT Rules. Judicial decisions relied upon were carefully perused.
5. The appellant company is a company incorporated under the laws of Italy and is engaged in the business of construction, design and engineering and implementation services to Oil & Gas, Power, Pharmaceuticals and Infrastructure industries.
Technip India Limited is a company incorporated in June 1998 under the Companies Act, 1956, as a joint venture between M/s Southern Petrochemical Industries Corporation Ltd (SPIC) and the appellant. Technip India is engaged in the business of executing lump sum turnkey and lump sum service contracts in the field of refineries, petrochemicals, oil & gas, fertilizers, chemicals & other allied fields. In March 2010, the appellant acquired balance 50% stake of SPIC in Technip India and, accordingly, Technip India became a wholly-owned subsidiary of the appellant company.
During the year under consideration, the appellant entered into a Share Purchase Agreement (SPA) with Technip France SAS (now known as Technip France SA), for transfer of its entire shareholding comprising of 29 lakhs equity shares in Technip India, at an agreed price of Rs. 396.42 per share and, accordingly, Technip India became 100% subsidiary of Technip France.
For the aforementioned share transfer transaction, sale consideration was determined based on fair valuation of shares of Technip India undertaken by an independent valuer. The basis was Discounted Cash Flow (DCF) Methodology.
Since the said transfer of shares entailed transfer of capital assets situated in India, the appellant offered the income arising from sale of such shares to long term capital gains tax in terms of section 45 of the Act.
Return of income was filed on 30.11.2013, declaring total income of Rs. 43,71,22,520/- comprising income of:
(i) Long term capital gains from sale of shares amounting to Rs. 33,31,17,500/- and (ii) Fees for technical services under section 115A(b)(BB) of the Act amounting to Rs. 10,40,05,020/-.
Return was selected for scrutiny assessment proceedings, and accordingly, statutory notices were issued and served upon the assessee.
During the course of the assessment proceedings, the assessing officer made a reference u/s 92CA of the Act to the Transfer Pricing Officer [TPO]. The TPO, vide order dated 26.10.2016, rejected the share valuation report furnished by the assessee and proposed to make an adjustment of Rs. 81,56,35,772/- as under:
Adjustment proposed Amount Weighted average cost of capital (“WACC”) should be 19,36,33,000 14.47% against 18.12% considered by the independent valuer Adjustment on account of goodwill 61,74,00,000 Adjustment on account of difference in exchange rate 46,02,772 Total 81,56,35,772
A draft assessment order was made on 18.11.2016 proposing addition of Rs. 81,56,35,772/-. The assessee raised objections before the DRP but the DRP, vide order dated 07.08.2017, confirmed the addition proposed by the Assessing Officer.
Pursuant to the directions of the DRP, the AO framed final assessment order on 12.09.2017, wherein the income was assessed at Rs. 1,25,27,58,292/- as under:
Adjustment proposed Amount Returned income of the appellant 43,71,22,520 Additions made by the AO in relation to the sale of 81,56,35,772 shares of Technip India to Technip France Total assessed income 1,25,27,58,292
Aggrieved by this, the assessee is before us.
We will first address to the additional ground mentioned elsewhere.
The ld. counsel for the assessee vehemently stated that the transfer pricing provisions under the Act do not apply to a transaction of transfer of shares entered into between two Indian companies. It is the say of the ld. counsel for the assessee that the capital gains arising to an Indian company upon transfer of shares to another Indian company is not subject to the rigors of transfer pricing. In support of his contention, the ld. counsel for the assessee placed reliance on Article 25 of India-Italy DTAA, which contains non-discrimination clause. In support of his contention, strong reliance was placed on the decision of the Hon'ble High Court of Delhi in the case of CIT vs. Herbal Life International P. Ltd.: 384 ITR 276 supported by the decision of the co-ordinate bench in the case of Gupta Overseas [ITA No. 257/Agr/2013.
Shri G.K. Dhall, CIT-DR, strongly objected to the application of Article 25 of India-Italy DTAA. In support of his contention, strong reliance was placed on the OECD Commentary and also on the observations of Philip Baker. It is the say of the ld. DR that the assessee has failed to prove any discrimination on the basis of its nationality alone. The ld. DR further stated that the contention of the assessee that it was discriminated vis a vis residents also does not support its cause, since every Sovereign State reserves its rights to discriminate residents from non-residents. For this proposition, once again support was drawn from the commentary of Philip Baker. In so far as the decision of the Hon'ble Delhi High Court in the case of Herbal Life International Pvt. Ltd and other related judgments relied upon by the ld. counsel for the assessee are concerned, the ld. DR stated that these judgments were delivered in the facts and issues distinguishable from that of the assessee, as in none of these judgments, Article 25(1) of India Italy DTAA relating to discrimination on the basis of nationality was under consideration.
We have heard the rival submissions and have given thoughtful consideration to the orders of the authorities below. We have also carefully perused the India Italy DTAA. Article 25 reads as under:
“1. The nationals of a Contracting State shall not be subjected in the other Contracting State to any taxation or any requirement connected therewith, which is other or more burdensome than the taxation and connected requirements to which nationals of that other State in the same circumstances and under the same conditions are or may be subjected.
The taxation on a permanent establishment which an enterprise of a Contracting State has in the other Contracting State shall not be less favourably levied in that other State than the taxation levied on enterprises of that other State carrying on the same activities in the same circumstances or under the same conditions.
Nothing contained in this Article shall be construed as obliging a Contracting State to grant to persons not resident in that State any personal allowances, reliefs and reductions for taxation purposes which are by law available only to persons who are so resident.
4. Enterprises of a Contracting State, the capital of which is wholly or partly owned or controlled, directly or indirectly, by one or more residents of the other Contracting State, shall not be subjected in the first-mentioned Contracting State to any taxation or any requirement connected therewith which is other or more burdensome than the taxation and connected requirements to which other similar enterprises of that first-mentioned State are or may be subjected in the same circumstances and under the same conditions.
In this Article, the term "taxation" means taxes which are the subject of this Convention.”
Article 3 contains the general definition and in clause J, the term ‘National’ means any individual possessing the nationality of a contracting state and any legal person, partnership or association deriving its status from the law in force in the contracting state.
In the light of the aforementioned definition, let us now dissect Article 25(1). Nationals of a contracting state [i.e. the appellant company] shall not be subjected in other contracting state [i.e. India] to any taxation or any requirement connected therewith, which is there or more burdensome than the taxation and connected requirements to which nationals [i.e. Indian national] of that other state [i.e. India] in the same circumstances and under same conditions are or may be subjected.
In our understanding, under Article 25 of this India Italy DTAA and an Italian national shall not be subjected to in India to any taxation or any requirement connected therewith to which Indian nationals in the same circumstances and under the same conditions are or may be subjected which is more burdensome to Italian national.
This means that if an Indian national [legal person], enters into any international transactions with its Associated Enterprises, will it not be subjected to transfer pricing proceedings? The answer is “YES”. The Indian national will be subjected to transfer pricing proceedings. Therefore, in our considered opinion, the transfer pricing proceedings taken in the case of the appellant company is not at all discriminating and, therefore, do not fall within the purview of Article 25 of the India Italy DTAA as claimed by the appellant. On the given facts and circumstances of the case, we do not find it necessary to discuss the judicial decisions relied upon by the ld. counsel for the assessee as they are totally different from the facts of the case in hand. Thus, the additional ground raised by the assessee is, accordingly, dismissed.
The next objection of the appellant is that the Assessing Officer has no power to substitute actual consideration with notional consideration u/s 45 r.w.s 48 of the Act.
The ld. Counsel drew our attention to the provisions of section 45(1) of the Act and pointed out that section 48 prescribes the mode of computation of capital gains. It is the say of the ld. counsel for the assessee that as per provisions of section 48 of the Act, capital gains is required to be computed on the basis of full value of consideration received or accruing on transfer of the asset. The ld. counsel for the assessee further pointed out that the Courts have unanimously and unambiguously held that the expression “full value of consideration” used in section 48 of the Act refers to the actual consideration received by an assessee from transfer of capital asset and there is no power with the assessing officer to substitute such actual consideration with any notional consideration or fair market value of the asset transferred. In support of this contention, reliance was placed on several judicial decisions of the Hon'ble Supreme Court and the Hon'ble Delhi High Court.
In our considered opinion, on finding that there was an international transaction between the AEs, the Assessing Officer referred the matter to the TPO for determination of Arm’s length Price. In our considered opinion, the Assessing Officer has not substituted actual consideration with notional consideration but has made adjustment as per the report of the TPO after receiving directions from the DRP. Section 92 of the Act provides that any income arising from an international transaction shall be computed having regard to the arm’s length price.
27. Section 92C(4) provides “where an Arm’s length price is determined by the Assessing Officer under sub-section (3), the Assessing Officer may compute the total income having regard to the ALP so determined. This means that after determining the ALP, the total income of the assessee is computed having regard to the ALP. Therefore, it is not a case of substitution of actual consideration with notional consideration but adjustment of ALP as determined by the TPO. This objection also fails.
Now we will address to the merits of the case.
As mentioned elsewhere, the TPO has rejected the share valuation report furnished by the assessee. At the very outset, we have to state that a requirement similar to the one fastened to the appellant is also thrust upon the department by the CBDT vide its Instruction No. 5/2011, for undertaking such valuation. This principle has been upheld by the Hon'ble Supreme Court in the case of CIT vs Bharti Cellular Limited 330 ITR 239. However, we find that the AO/ TPO have not undertaken any such valuation to discharge the aforementioned onus in refuting the claim of the assessee.
Share valuation Certificate from the independent valuer is placed at pages 200 to 208 of the paper book, which is the valuation report of S.S. Kothari Mehta & Co. which has adopted the valuation approach as under:
“We have discussed broadly, the industry trends, operations of the Company, current and future market potential, and the assumptions underlying the financial projections with the management to augment our understanding of the businesses and to incorporate their views in order to arrive at a fair valuation of the Company. We have described below the methodologies generally considered in similar situations, and their application in the instant case:
Net Assets Value Method • Comparable Companies Multiples (“CCM') Method • Discounted Cash Flows (“DCF”) Method” •
Second valuation report is placed at pages 113 to 128 of the paper book, which is why SPA Capital Advisors Ltd., which has also applied discounted cash flow method, determined the fair value as per share at Rs. 371.10. The relevant part of the report is as under:
Discounted Cash Flow Statement Particulars 31-Dec-12 31-Dec-13 31-Dec-14 31-Dec-16 Perpetuity PAT 125,440.24 154,485.27 165,232.56 168,506.04 171,469.49 174,898.88 Add: Depreciation 48,686.28 45,679.14 40,500.30 36,777.34 34,071.48 34,071.48 Changes in Gross Block (41,099.00) (24,360.00) (24,132.00) (24,132.00) (24,132.00) (34,071.48) 16,253.47 (27,377.52) (4,949.11) (3,872.55) (3,798.92) - Changes in Non-cash Working capital - - Changes in deferred tax assets 1,186.81 1,679,36 (1,486.29) Cash Flow 150,467,80 150,106.25 175,165.46 177,278.83 177,6X0.05 989,984.23 Discounting factor @ WACC 0.84 0.70 0.58 0.49 0.41 0.41 Discounted Cash Flow 125,738.93 104,821.69 102,217.93 86,449.33 72,376.66 403,421.69 Sum of cash Flows 895,026.23 371,081.71 Add: Cash as on Dec 31, 2011 Equity Value 1,266,107.95 No of shares (in thousands) 2900.00 Value per share 436.59 Less: Illiquidity discount @ 15% Fair Value per share (after Illiquidity 371,10 Discount)
Thus, it can be seen that the assessee’s valuation is supported by the valuation report of two independent valuers. The share valuation as per the appellant and share valuation as per the TPO can be understood from the following charts:
Particulars 2012 2013 2014 2015 2016 Perpetuity PAT 125.44 154.49 165.23 168.51 171.47 171.47 Add: Depreciation 48.69 45.68 40.50 36.78 34.07 34.07 Add: Deferred Tax 0.00 1.19 -1.49 adjustment 1.68 0.00 Add: (Increase)/ Decrease in WC 16.25 -27.38 -4.95 -3.87 -3.80 0.00 Less: Capital Expenditure -41.10 -24.36 -24.13 -24.13 -24.13 -34.07 Free Cash Flow to Firm trl50.ll i 175.17 177.61 171.47 150.47 / 177.28 WACC 18.12% 0.85 0.72 0.51 ^0.43 0.43 0.61 127.90 108.08 106.85 90.41 76.37 Value of Explicit Period (A) 509.57 [Free cash flow (1+growth rate) / (WACC - growth rate)] * Pv factor for 5th year) = [171.47 (1+0.02) / (18.12% - 2%)]*0.43 = 471.85. Value of Perpetuity (B) 471.85 Total Enterprise Value (C = A+B) 981.41 Growth rate is 2 percent Add: Cash & Cash Equivalents (D) 371.08 Equity Value (E=C+D) 1352.50 ,Less: Illiquidity discount at 202.88 15% (F) Fair Equity value (E-F) 1149.63 a Number of shares 2,900,000 Fair Value per share (INR) 396.42 _______
' . Particulars Remarks Risk Free Rate of Based on reported YTMs of long term government bonds 8.54 (with 10 year maturity) Return Based on performance of the sensex over past 32 years Market Risk Premium i.e. from 1979 to 2011 8.09 Based on reported beta of selected listed companies providing engineering, procurement and construction services to Oil and gas, refinery industries Specific Company Risk ........................... Discounting rate 18.12 Free Cash Flow to Firm Model Particulars 2011-12 2012-13 2013-14 2014-15 2015-16 Free Cash Flow to Firm 150,470,000 150,110,000 175,170,000 177,280,000 177,610,000 Discounting rate 14.50% Period of discount 1 2 3 4 Discounting factor 1.00 0.87 0.76 0.67 0.58 Discounted cash flow 150,470,000 130,595,700 133,129,200 118,777,600 103,013,800 Aggregate of PV of the explicit forecast period (A) 635,986,300 PV of terminal value (B) 470,000,000 Cash and bank balance (’C) 237,274,474 1,343,260,77 Enterprise value (A+B+C) 4 Number of shares 2,900,000 Fair Value per share (INR) 463.19
Remarks Rate Particulars Risk Free Rate of Return 8.54 Rate adopted by the appellant accepted by the TPO Not accepted by the TPO and recomputed based on Market Risk Premium 4.63 performance of the sensex since year of incorporation of the company i.e. from 1998 Rate adopted by the appellant accepted by the TPO. Based on reported beta of selected listed companies Specific Company Risk 1.3 providing engineering, procurement and construction services to Oil and gas, refinery industries 14.47 Discounting rate
Two distinguishing features are vivid from the aforesaid share valuation charts. Firstly, share valuation as per the assessee is Rs. 396.42 whereas that of the TPO is 463.19 and, secondly, the market risk premium adopted by the assessee is 8.09, whereas the same has been taken by the TPO at 4.63.
In so far as afore said valuation per share is concerned, we find that the shares of the appellant company are highly ill-liquid and, therefore, independent valuers have allowed illiquidity discount @ 15%, which comes to 202.88. However, the TPO has not deducted any ill-liquidity discount. In our considered view, the TPO should have allowed rebate for illiquidity since the shares of the appellant company do not have any liquidity in the open market. If the illiquidity discount alone is considered, then the fair value as per the share of the assessee would be more than the fair value per share determined by the TPO.
Further, the TPO has considered the financial data on financial year basis whereas the appellant’s accounting year is the calendar year. Moreover, the TPO has taken the market risk premium of performance of sensex since the year of incorporation of the company i.e. 1998 whereas the independent valuers have taken the market risk premium based on performance of the sensex over past 32 years i.e. 1979 to 2011.
In our considered opinion, the market risk premium measures the extra return that would be demanded by investors for shifting their money from riskless investments to an average risk investment. This excess return compensates investors for taking higher risk by investing in the market. The amount of the premium will vary as the risk in a particular stock, or in the stock market as a whole, changes; high-risk investments are compensated with a higher return. Therefore, the market risk premium is generally computed as return on market index i.e. SENSEX over a long period of time.
We find that market risk premium for various countries is also computed by reputed valuers like Professor Aswath Damodaran. He computes market risk premium from time to time for various countries and posts the same on his website/ in public domain. We find that in the share valuation report, SS Kothari Mehta & Co, Chartered Accountants has considered Market Risk Premium as 8.09%, based on performance of Indian market index over past 32 years, which is largely same as what has been computed and published by Professor Aswath Damodaran on his website is as updated upto January 2012 at 9% and 8.6% as updated up to January 2011.
In our considered opinion, considering the market return over a longer time frame would neutralize the impact of any abnormalities on the market risk premium. Considering the facts of the case in totality, we are of the opinion that the market risk premium at 8.09 % as adopted by the valuer is correct, which makes the discounted rate at 18.12% and if the same is taken, then again also, the fair value per share taken by the assessee will be higher than the fair value per share taken by the TPO.
The next quarrel relates to the adjustment of goodwill of Rs. 61.74 crores.
It seems that the TPO has been carried away with the consolidated balance sheet of the parent company. As mentioned elsewhere, in March 2010, the appellant acquired 50% of the paid-up share capital of Technip India from SPIC for a total consideration of Rs. 80 crores. Technip SA France is the ultimate parent company of the group. In its consolidated financial statements for the year ended 31.12.2010, Technip SA France recognized ‘Goodwill’ of 9.8 million Euros, equivalent to Rs. 61.74 crores. Taking a leaf out of this, the TPO has alleged that goodwill amounting to 9.8 million Euros equivalent to Rs. 617,400,000 has been recognized by Technip SA, France, and, therefore, on sale of 100% of paid up share capital of Technip India by Technip Italy to Technip France, only goodwill of 50% shares has been considered in the share valuation. Accordingly, addition of Rs. 61.74 crores was made by the TPO to amount of sale consideration received by the assessee.
We are of the considered opinion that when the fair value is determined in accordance with the discounted cash flow [DCF] methodology, subsumes values of all kinds of assets of business/ company, whether tangible or intangible, or otherwise, which means that future operating profits of the company are taken into consideration for arriving at a value under the DCF Approach.
In our considered opinion, Goodwill is an intangible asset arising as result of name, reputation, customer loyalty, location, products and other similar factors not separately identified. Goodwill is an apparatus that assists in improving the profitability of a Company, being the base for determination of value under the DCF approach. Therefore, Business Value arrived at under DCF approach subsumes the value attributable to Goodwill. Since DCF valuation methodology inherently captures the entire value of business, therefore, based on valuation principles, there cannot be a separate addition of the value of goodwill.
The AO / TPO have inappropriately added value of one of the assets i.e. goodwill in the DCF calculation without appreciating the fact that cash flows of business already factor the benefits accruing from a combination of all business assets and, therefore, adding the value of goodwill to the enterprise value arrived using DCF methodology amounts to double counting.
In our considered view, the AO/ TPO have failed to appreciate the fundamental difference in adoption of valuation approach by suggesting addition of goodwill in a DCF computation. In a DCF computation, the value of incremental profits (reflection of goodwill) is already factored and therefore, the question of adding a separate amount towards goodwill does not arise. In this regard, it may be noted that page no. 31 of the Technical Guide on share valuation issued by the ICAI reads as under:
“Goodwill is generally inseparable from a business and can fetch a price only if a business is sold on a going concern basis. It is usual for the value of a business as a whole on a going concern basis to differ from the value of its separable net assets. The difference may arise due to presence of goodwill. Goodwill generally does not appear in the accounts of a company except where the company has actually paid for it when purchasing a business. Even where there is a value of goodwill in the accounts, such value does not necessarily represent its fair value.”
Accordingly, goodwill is an integral part of business, regardless of whether the same has been accounted for separately or not. Therefore, any goodwill historically recognized pursuant to an accounting requirement cannot be separately added to the fair value of business determined in accordance with DCF methodology. In the Applicant’s case, goodwill was not even appearing in the financial statements of Technip India and therefore, there is no question of including the same while determining the fair market value under DCF methodology.
Accordingly, fair valuation of Rs. 396.42 per share of Technip India undertaken by an independent Valuation Expert/ Chartered Accountant subsumes fair value of entire business of Technip India including all intangibles, including goodwill. Hence, there is no need to separately add the value of goodwill to the amount of sales consideration.
Last quarrel relates to adjustment on account of difference in exchange rate of Rs. 46,02,772/-.
As per the share purchase agreement placed at pages 217 to 218 of the paper book, the aggregate purchase price for all the shares is taken at 1,14,96,18,000/- equivalent to 16798439.41 Euros. The TPO has erroneously taken the value of share transaction in Euros whereas the transaction has been done in Indian currency. Therefore, the adjustment on account of exchange rate is uncalled for and deserves to be deleted.
Considering the facts of the case in totality, from all possible angles, we are of the considered opinion that the adjustment as mentioned elsewhere, made by the Assessing Officer/TPO deserves to be deleted. Ground No. 2 and 3 with all its sub grounds are allowed and Ground No. 4 is also allowed.
In so far as levy of interest u/s 234B of the Act is concerned, the ld. counsel for the assessee submitted that a similar issue was considered by the co-ordinate bench in the case of Technip UK Ltd [supra]. The relevant findings read as under:
“25. In our understanding of the law, as per the provisions of section 234B of the Act, the assessee who is liable to pay advance tax u/s 208 of the Act will be liable to interest u/s 234B of the Act if he fails to pay such tax or advance tax paid by him falls short of 90% of the assessed tax. As per provisions of section 208 r.w.s 209(1) of the Act, advance tax payable has to be computed after reducing from the estimated tax liability the amount of tax deductible/ collectible at source on income which is included in computing the estimated tax liability. Such balance tax liability is the advance tax payable under section 208 of the Act.
[[[ 26. The Hon'ble Delhi High Court in the case of DIT v. GE Packaged Power Inc. 373 1TR 65, held that no interest under section 234B of the Act can be levied on the assessee-payee on the ground of non-payment of advance tax because the obligation was upon the payer to deduct the tax at source before making remittances to them. The relevant extracts of the decision are reproduced hereunder:
“22. This Court, therefore, holds that Jacobs (supra) applies in such situations; Alcatel Lucent (supra) can be explained as a decision turning upon its facts; its seemingly wide observations, limited to the circumstances of the case. This Court, therefore, holds that the view taken by ITAT was correct; the primary liability of deducting tax (for the period concerned, since the law has undergone a change after the Finance Act, 2012) is that of the payer. The payer will be an assessee in default, on failure to discharge the obligation to deduct tax under Section 201 of the Act.
For the above reasons, this Court finds that no interest is leviable on the respondent assessees under Section 234B, even though they fled returns declaring NIL income at the stage of reassessment. The payers were obliged to determine whether the assessees were liable to tax under Section 195(1), and to what extent, by taking recourse to the mechanism provided in Section 195(2) of the Act. The failure of the payers to do so does not leave the Revenue without remedy; the payer may be regarded an assessee-in-default under Section 201 and the consequences delineated in that provision will visit the payer. The appeal of the Revenue is accordingly dismissed without any order as to costs. "
It may be pointed out that the Finance Act, 2012, w.e.f. 1.4.2012 added proviso below section 209(1)(d) of the Act. But the said proviso is applicable from assessment year 2013-14 and, therefore, prospective in operation.
28. In our understanding, the insertion of the proviso cannot be considered to have retrospective effect so as to expose a non- resident company to levy of interest u/s 234B of the Act for the assessment years prior to assessment year 2013-14. In the light of the above, we direct the Assessing Officer to not charge interest u/s 234B of the Act.”
Since in the present case the income has been received by the appellant after deduction of tax at source, therefore, the aforesaid provision is not applicable. Respectfully following the findings of the co-ordinate bench, we hold that no interest is leviable u/s 234B of the Act.
In the result, the appeal of the assessee in is partly allowed.
The order is pronounced in the open court on 28.02.2019.