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Income Tax Appellate Tribunal, “K” Bench, Mumbai
Before: Shri G. Manjunatha & Shri Ravish Sood
O R D E R
PER RAVISH SOOD, JM
The present appeal filed by the assessee is directed against the order passed by the A.O under Sec.143(3) r.w.s 144C(13) of the Income Tax Act, 1961 (for short „I.T. Act‟), dated 31.01.2017 for A.Y. 2012-13. The assessee assailing the order passed by the A.O has raised before us the following grounds of appeal: A. Re.:Computation of Income in accordance with normal provisions of the Income-tax Act, 1961
1. Re.: Disallowance of u/s. 14A of the Income-tax Act, 1961: 1:1 The Assessing Officer the Dispute Resolution Panel has erred in making a disallowance u/s. 14A of the Income-tax Act, 1961. 1: 2 The Appellant submits that considering the facts and circumstances of its case and the law prevailing on the subject no disallowance u/s. 14A P a g e | 2 IT (TP)A. No. 2258/Mum/2017 A.Y. 2012-13 Firstsource Solutions Limited Vs. The Deputy Commissioner of Income Tax, Circle-12(2)(1) of the Income-tax Act, 1961 was called for and the stand taken by the Assessing Officer/the Dispute Resolution Panel in this connection is misconceived, incorrect, erroneous and illegal. 1:3 The Appellant submits that the Assessing Off icer be directed to delete the disallowance u/s. 14A made by him and to re-compute its total income and tax thereon accordingly. 1:4 Without prejudice to the foregoing and in the alternative, the Appellant submits that in case it be held that a disallowance u/s. 14A is warranted then the disallowance should be restricted to Rs.1,22,050/- suo-moto made by the Appellant. 2:0 Re.: Computation of deduction u/s. 10AA of the Income-tax Act, 1961: 2:1 The Assessing Officer/the Dispute Resolution Panel has erred in computing the deduction u/s. 10AA by setting off the losses of STP/ non-STP units by erroneously relying upon the CBDT Circular dated 16 July 2013. 2:2 The Appellant submits that considering the facts and circumstances of its case and the law prevailing on the subject it is entitled to a deduction u/s. 10AA for each of its qualifying undertakings as claimed in its return of income and the stand taken by the Assessing Officer/the Dispute Resolution Panel in this connection is misconceived, incorrect, erroneous and illegal. 2:3 The Appellant submits that the Assessing Officer be directed to grant deduction u/s. 10AA for each of its qualifying undertakings as claimed in the return of income and / re-compute its total income and tax thereon accordingly. 3:0 Re.: Credit for tax deducted at source amounting to Rs. 21,13,229/- granted short: 3:1 The Assessing Officer erred in granting the Appellant credit for tax deducted at source short by Rs.21,13,229/- while computing the Appellant's tax liability for the year under consideration. 3 :2 The Appellant submits that considering the facts and circumstances of its case and the law prevailing on the subject it is entitled to full credit for tax deducted at source from its income as claimed by it and the stand taken by the Assessing Officer in this respect is misconceived, incorrect, erroneous and illegal. 3:3 The Appellant submits that the Assessing Officer be directed to grant full credit for tax deducted at source and to re-compute its tax liability accordingly. 4:0 Re.: Levy of interest u/s. 234D of the Income-tax Act, 1961: 4:1 The Assessing Officer has erred in levying interest u/s. 234D of the Income-tax Act, 1961 on the Appellant. 4:2 The Appellant submits that considering the facts and circumstances of its case and the law prevailing on the subject no interest is leviable u/s. 234D the stand taken by the Assessing Officer in this respect is misconceived, incorrect, erroneous and illegal. 4:3 The Appellant submits that the Assessing Officer be directed to delete the interest u/s. 234D levied on it and to re-compute its tax liability accordingly. B. Re.: Computation of ‘Book Profits’ in accordance with section 115JB of the Income-tax Act, 1961 P a g e | 3 IT (TP)A. No. 2258/Mum/2017 A.Y. 2012-13 Firstsource Solutions Limited Vs. The Deputy Commissioner of Income Tax, Circle-12(2)(1)
5:0 Re.: Disallowance u/s. 14A of the Income-tax Act, 1961 while computing the book profits u/s. 115JB of the Income-tax Act, 1961 5:1 The Assessing Officer/the Dispute Resolution Panel has erred in increasing the 'Book Profits' for the purposes of section 115JB of the Income-tax Act, 1961 by an amount of Rs. 20,51,901/- being the disallowance u/s. 14A of the Income-tax Act, 1961 r.w.r. 8D of the Income-tax Rules, 1962. 5:2 The Appellant submits that considering the facts and circumstances of its case and the law prevailing on the subject no disallowance u/s. 14A of the Income-tax Act, 1961 was called for and the stand taken by the Assessing Officer/the Dispute Resolution Panel in this connection is misconceived, incorrect, erroneous and illegal. 5:3 The Appellant submits that the Assessing Off icer be directed to delete the disallowance u/s. 14A made to the ‘Book Profits’ and to re-compute its total income and tax thereon accordingly. C. Re.: Transfer Pricing Grounds: 6:0 Re.: General Ground: 6:1 On the facts and circumstances of the case, the learned Transfer Pricing Officer ('TPO') and the learned Assessing Officer ('AO') under the directions of the Hon'ble Dispute Resolution Panel ('DRP') erred in levying adjustment of Rs.5,34,18,750/- on account of Guarantee Commission to the Appellant's total income based on the provisions of Chapter X of the Income-tax Act, 1961 ('the Act'). 6:2 The learned TPO/AO have erred in fact and in law in not providing any reasons to show that the conditions mentioned in clauses (a) to (d) of Section 92C(3) of the Act were satisfied before making an adjustment to the income of the Appellant. 7:0 Adjustment on account of Guarantee Commission received from Associated Enterprises ('AEs'): Rs 5,34,18,750/-: 7:1 On the facts and in the circumstances of the case and in law, the learned TPO erred in recommending adjustment for the Guarantee given by the Appellant in respect for loan taken by AE by adopting guarantee commission at 1.50% as against 0.5% charged by the Appellant from its AE and the Hon'ble DRP further erred in confirming the adjustment. 7:2 On the facts and in the circumstances of the case and in law, the Hon'ble DRP based on their own surmises and conjectures disregarded the detailed scientific benchmarking analysis carried out by the Appellant in respect of the arm's length corporate guarantee commission charged by the Appellant to its AEs. 7:3 On the facts and in the circumstances of the case and in law, the learned TPO/AO erred and the Hon'ble DRP f urther erred in conf irming the use of non- contemporaneous data which is in violation of Rule 10D(1) of the Income-tax Rules, 1962 ('the Rules'). 7:4 On the facts and circumstances of the case and in law, the learned TPO/AO erred and the Hon'ble DRP further erred in relying on the naked quotes of various banks while benchmarking the international transaction pertaining to guarantee commission without undertaking any FAR analysis in respect of the transaction, which itself is not in accordance with the provisions of law. 7:5 On the facts and circumstances of the case and in law, the learned TPO/AO erred and the Hon'ble DRP further erred in disregarding that there is a difference between the Bank Guarantee and Corporate Guarantee.
P a g e | 4 IT (TP)A. No. 2258/Mum/2017 A.Y. 2012-13 Firstsource Solutions Limited Vs. The Deputy Commissioner of Income Tax, Circle-12(2)(1) 7:6 On the facts and circumstances of the case and in law, the learned TPO/AO erred and the Hon'ble DRP further erred in taking as their benchmark the corporate guarantee rates charged by the banks for providing guarantee to its domestic customers for loans taken in India. Also the rate of corporate guarantee of 1.5% which has been taken as the arm's length rate by the learned TPO by way of estimation and has been decided in an arbitrary manner without giving a reason for choosing the above rate and the Hon'ble DRP erred in confirming the same. 7:7 Without prejudice to the above, the TPO had wrongly imputed 1.5% as the rate of guarantee commission to be charged by the Appellant as against the 1.25% show- caused by him in the order sheet noting dated 25 January 2016. 7:8 On facts and circumstances of the case and in law, the learned TPO/AO erred and the Hon'ble DRP further erred in confirming the adjustment without considering the economic and commercial benefit accruing to the Indian entity for determination of arm's length price. 7:9 On the facts and circumstances of the case and in law, the learned TPO/AO erred and the Hon'ble DRP further erred in disregarding the fact that the provision of guarantee is a shareholders activity by the Appellant with a view to protect the interest of the parent company. Despite this fact the Appellant has charged commission at the rate of 0.50% and therefore the same should be considered to be at Arm's length from Indian transfer pricing perspective. 8:0 Re.: Penalty Proceedings under section 271(1)(c) of the Act: 8:1 On the facts and in the circumstances of the case, the AO has legally erred in initiating penalty proceedings under section 271(1)(c) of the Act. 9:0 Re.: General: 9:1 The Appellant craves leave to add, alter, amend, substitute and/or modify in any manner whatsoever modify all or any of the foregoing grounds of appeal at or before the hearing of the appeal.”
2. Briefly stated, the assessee company which is engaged in the business of Contact Centre and Transaction Processing Services had e-filed its return of income for A.Y. 2012-13 on 30.11.2012, declaring loss of Rs.6,19,82,739/- under the normal provisions and „book profit‟ of Rs.62,23,89,680/- under Sec.115JB of the I.T Act. Subsequently, the assessee filed a revised return of income on 03.12.2012, declaring loss of Rs.6,19,82,739/-. The return of income filed by the assessee was processed as such under Sec. 143(1) of the I.T Act. Thereafter, the case of the assessee was selected for scrutiny assessment under Sec. 143(2).
3. The A.O pursuant to the directions of the Dispute Resolution Panel-1, Mumbai (for short „DRP‟) under Sec. 144C(5), dated P a g e | 5 IT (TP)A. No. 2258/Mum/2017 A.Y. 2012-13 Firstsource Solutions Limited Vs. The Deputy Commissioner of Income Tax, Circle-12(2)(1) 16.12.2016, framed the assessment under Sec.143(3) r.w.s. 144C(1), dated 31.03.2016 after making the following additions/disallowances and modifications to the returned income:
Sr. No. Particulars Amount 1. Disallowance under Sec. 14A Rs. 20,51,901/- (as against disallowance of Rs.1,22,050/- shown by the assessee) 2. Disallowance from deduction claimed by the Rs.6,19,82,739/- assessee under Sec. 10AA by computing the same after setting off the losses of STP/non- STP units.
Apart there from, the A.O considered the disallowance under Sec.14A for the purpose of computing the „book profit‟ of the assessee company under Sec.115JB. Further, the claim of the assessee for credit of TDS of Rs.21,13,229/- was also declined by the A.O. On the basis of his aforesaid deliberations the A.O worked out the income of the assessee under the normal provisions at Rs.5,54,70,650/- and its „books profit‟ under Sec.115JB at Rs. 62,44,41,581/-.
Aggrieved, the assessee has assailed the assessment framed by the A.O under Sec.143(3) r.w.s 144C(13) in appeal before us. The ld. Authorized Representative (for short „A.R‟) for the assessee at the very outset of the hearing of the appeal assailed the disallowance made by the A.O u/s 14A of the I.T Act. It was submitted by the ld. A.R that as the assessee during the year under consideration had not earned any exempt income, thus no disallowance could have been made under Sec.14A. In support of his aforesaid contention the ld. A.R relied on the recent orders of the Hon‟ble Supreme Court in the case of CIT (Central)-1 Vs. Chettinad Logistics (P) Ltd. (2018) 257 taxman 2 (SC) and PCIT-18 Vs. M/s Oil Industry Development Board. [SLP (Civil) Diary No. 2755/2019] (arising out of impugned final judgment and order dated 16.02.2018 in passed by the High Court of Delhi), dated 08.02.2019. The ld. A.R drawing support from the aforesaid judicial pronouncements submitted that it has been held P a g e | 6 IT (TP)A. No. 2258/Mum/2017 A.Y. 2012-13 Firstsource Solutions Limited Vs. The Deputy Commissioner of Income Tax, Circle-12(2)(1) by the Hon‟ble Apex Court that Sec.14A cannot be invoked where no exempt income was earned by the assessee in the relevant assessment year. It was submitted by the ld. A.R that as the assessee had not earned any exempt income during the year under consideration viz. A.Y. 2012-13, thus no disallowance under Sec.14A was called for in its hands. Insofar the part disallowance of deduction under Sec. 10AA by the A.O was concerned, it was averred by the ld. A.R that the issue was squarely covered by the judgment of the Hon‟ble Supreme Court in the case of CIT vs. Yokogama India Ltd. (2017) 391 ITR 274 (SC). It was submitted by him that in the said order it was held by the Hon‟ble Apex Court that deduction under Sec.10A shall be allowed qua unit wise instead of aggregating profit/losses of all units. Further, the ld. A.R submitted that the issue was also covered by the consolidated order of the Tribunal passed in the assesses own case for A.Y. 2004- 05 and A.Y. 2005-06 i.e M/s Firstsource Solution Ltd. Vs. DCIT 6(2) (ITA 4752/Mum/2009, and ITA No. 2658/Mum /2011). The ld. A.R in order to drive home his aforesaid contention took us trough the relevant extracts of the consolidated order of the Tribunal for the aforementioned years. Apart there from, the ld. A.R also relied on the judgment of the Hon‟ble High Court of Bombay in the case of CIT Vs. Black & Beatch Consulting Pvt. Ltd. (2012) 348 ITR 72 (Bom). It was submitted by the ld. A.R that the A.O loosing sight of the aforesaid settled position of law had erred in restricting the assesses entitlement towards deduction under Sec.10AA by setting off the losses of STP/Non-STP units by erroneously relying upon the CBDT Circular dated 16.07.2013. Further, the ld A.R submitted that as the A.O had erred in not granting full credit of TDS as was claimed by the assessee in its return of income, therefore, a necessary direction to the said effect may be given. As regards levy of interest under Sec.234D that was assailed by P a g e | 7 IT (TP)A. No. 2258/Mum/2017 A.Y. 2012-13 Firstsource Solutions Limited Vs. The Deputy Commissioner of Income Tax, Circle-12(2)(1) the assessee before us, it was submitted by the ld. A.R that the same would be consequential to the adjudication of the substantive issues. Insofar the increasing of the „book profit‟ by the amount of disallowance u/s 14A by the A.O/DRP for the purpose of computing the tax liability u/s 115JB was concerned, it was submitted by the ld. A.R that the said issue was squarely covered in favour of the assessee by the decision of the „Special Bench‟ of the ITAT, Delhi in the case of ACIT Vs. Vireet Investment Pvt. ltd. (2017) 188 TTJ 1 (Del) (SB). As regards the Transfer Pricing Adjustments made by the A.O/TPO under the directions of the DRP on account of „guarantee commission‟ as had been assailed by the assessee in the present appeal, it was submitted by the ld. A.R that as the assessee had gone for an “Advance Pricing Agreement” (for short „APA‟) which had been finalised on 08.01.2019, as per which the guarantee commission had been settled @ 0.73% and the assessee had already offered the incremental amount to tax in terms of the modified return of income filed pursuant to signing of the APA, hence the ground of appeal
No. 6 would be rendered as infructuous.
5. Per contra, the ld. Departmental Representative (for short „D.R‟) relied on the orders of the lower authorities.
6. We have heard the authorized representatives for both the parties, perused the orders of the lower authorities and the material as well as judgments placed on our record. We find that the A.O had worked the disallowance under Sec.14A r.w. Rule 8D at Rs.21,73,951/-, as against the disallowance of Rs.1,22,050/- that was suo motto offered by the assessee in its return of income. Resultantly, the A.O had made an addition of Rs. 20,51,901/- under Sec.14A r.w. Rule 8D to the returned income of the assessee. Admittedly, the assessee during the year under consideration had not earned any P a g e | 8 IT (TP)A. No. 2258/Mum/2017 A.Y. 2012-13 Firstsource Solutions Limited Vs. The Deputy Commissioner of Income Tax, Circle-12(2)(1) exempt income. The said fact is discernible from the submission that was filed by the assessee vide its letter dated 11.03.2016 with the A.O during the course of the assessment proceedings, which we find has not been controverted by the revenue. We find substantial force in the contention advanced by the ld. A.R that in case no exempt income is earned by the assessee during the relevant assessment year, then no disallowance by invoking the provisions of Sec. 14A is liable to be made in its hands. Our aforesaid view is fortified by the judgment of Hon‟ble High Court of Madras in the case of CIT, Circle-1 Chennai Vs. Chettinad Logistics (P) Ltd. (2017) 248 taxmann.com 56 (Mad), wherein it was concluded that where no exempt dividend income was earned by the assessee in the relevant assessment year, then no disallowance by invoking Sec. 14A was called for in its hands. The aforesaid order of the High Court had thereafter recently been upheld by the Hon‟ble Supreme Court while dismissing the „Special Leave Petition‟ (for short „SLP‟) of the revenue in the case of CIT (Civil-1) Vs. Chettinad Logistics Pvt. Ltd. (2018) 95 taxmann.com 250. Apart there from, a similar view has also ben taken by the Hon‟ble Apex Court while dismissing the SLP of the revenue in the case of PCIT-18 Vs. M/s Oil Industry Development Board. [SLP (Civil) Diary No. 2755/2019] (arising out of impugned final judgment and order dated 16.02.2018 in passed by the High Court of Delhi), dated 08.02.2019. As the issue that no disallowance under Sec.14A can be made in case the assessed had not earned any exempt income during the year is no more res integra pursuant to the aforesaid judgments of the Hon‟ble Apex Court, therefore, we are persuaded to subscribe to the contention advanced by the ld. A.R that as the assessee had not earned any exempt dividend income during the year under consideration, thus no disallowance under Sec.14A could have been made in its hands. We thus in terms of our aforesaid P a g e | 9 IT (TP)A. No. 2258/Mum/2017 A.Y. 2012-13 Firstsource Solutions Limited Vs. The Deputy Commissioner of Income Tax, Circle-12(2)(1) observations delete the disallowance made by the A.O under Sec.14A of the I.T Act. The Ground of appeal No. 1 is allowed.
7. We shall now advert to the part disallowance by the A.O of the assesses claim of deduction under Sec.10AA of the I.T Act. As per the facts discernible from the orders of the lower authorities, it stands revealed that the assessee had claimed deduction under Sec.10AA in respect of the eligible units at Rs. 48,13,86,995/-, as against its business income of Rs.32,52,00,938/-. Insofar the difference of Rs.15,61,86,050/- i.e excess of the claim of deduction under Sec.10AA as against the total business income was concerned, the same was partly „set off‟ by the assessee against the Short Term Capital Gain (for short „STCG‟) of Rs.9,42,03,318/-, while for the balance loss of Rs. 6,19,82,738/- was carried forward to the subsequent assessment year. The A.O after deliberating on the claim of deduction raised by the assessee under Sec.10AA held a conviction that the same was to be allowed after aggregating the income and loss of various units, irrespective of the fact as to whether the same were eligible or not for the deduction under the other heads. As a result thereof, the A.O backed by his aforesaid conviction quantified the assesses entitlement towards deduction under Sec.10AA, as under:
Business income before deduction U/s 10AA (as per Rs.32,52,00,938/- computation) Short term capital gain Rs. 9,42,03,318/- Total income considered for Sec.10AA Rs.41,94,04,256/- Deduction u/s. 10AA out of total claim of Rs.41,94,04,256/- Rs.48,13,86,995/- which is allowed to the extent of income available.
In the result, the excess disallowance claimed by the assessee under Sec.10AA amounting to Rs.6,19,82,739/- [Rs.48,13,86,995/- (-)
P a g e | 10 IT (TP)A. No. 2258/Mum/2017 A.Y. 2012-13 Firstsource Solutions Limited Vs. The Deputy Commissioner of Income Tax, Circle-12(2)(1) Rs.41,94,04,256/-] was disallowed by the A.O and added back to the total income of the assessee.
The assessee has assailed the aforesaid restriction of its entitlement towards claim of deduction under Sec. 10AA by the A.O. It is the contention of the ld. A.R that as per the mandate of law deduction under Sec.10AA is to be allowed qua unit wise instead of aggregating profit/losses of all units. As observed by us hereinabove, the ld. A.R in order to buttress his aforesaid contention has drawn support from the judgment of the Hon‟ble Supreme Court in the case of CIT Vs. Yokogawa India Ltd. (2017) 391 ITR 274 (SC). We have deliberated at length on the issue under consideration and find substantial force in the contention advanced by the ld. A.R before us. In fact, the issue under consideration had came up for adjudication before a coordinate bench of the Tribunal i.e ITAT “F” Bench, Mumbai in the assesses own case i.e Firstsource Solution Ltd. Vs. DCIT 6(2)/ACIT-5(2), Mumbai (ITA No. 4752/Mum/2009, and ITA No. 2658/Mum/2011) for A.Y 2004-05 & A.Y. 2005-06. The Tribunal after giving a thoughtful consideration to the issue as to whether the profits on STP units were to be adjusted against the loss of non-STP units, had after relying on the judgment of the Hon‟ble High Court of Bombay in the case of CIT Vs. Black & Beatch Consulting Pvt. Ltd. (2012) 348 ITR 72 (Bom) and that of the Hon‟ble Supreme Court in the case of CIT Vs. Yokogawa India Ltd. (2017) 391 ITR 274(SC) had directed the A.O to allow the deduction under Sec.10A of the I.T Act without setting off of loss from non-STP units. In our considered view as the provisions of Sec.10AA are pari materia to those envisaged in Sec.10A, therefore, the view taken by Tribunal in the assesses own case for the aforementioned preceding years i.e A.Y. 2004-05 and A.Y. 2005-06 squarely covers the issue under consideration in favour of the assessee. Apart there from, we P a g e | 11 IT (TP)A. No. 2258/Mum/2017 A.Y. 2012-13 Firstsource Solutions Limited Vs. The Deputy Commissioner of Income Tax, Circle-12(2)(1) find that the contention advanced by the assessee before us that the profits of STP units are not liable for adjustment against the loss of non-STP units for the purpose of quantifying the claim of deduction under Sec.10AA is also supported by the view taken by the Hon‟ble High Court of Bombay in the case of CIT Vs. Black & Veatch Consulting Pvt. Ltd. (2012) 348 ITR 72 (Bom). We thus in terms of our aforesaid observations are of the considered view that the lower authorities had erred in disallowing part of the assesses claim of deduction under Sec.10AA by wrongly aggregating the income and loss of various units while quantifying its entitlement towards deduction under Sec.10AA of the I.T Act. In terms of our aforesaid observations, we vacate the disallowance under Sec.10AA of Rs. 6,19,82,739/- made by the A.O. The Ground of appeal
No. 2 is allowed.
9. Insofar the claim of the assessee that the A.O had erred in not granting the full credit of tax deducted at source as was claimed by the assessee in its return of income is concerned, we find that the assessee is stated to have also filed a rectification application dated 14.02.2017 with the A.O, requesting him to rectify the error apparent on record as regards allowing of short credit of TDS. We are of the considered view that the said claim of the assessee as regards the failure on the part of the A.O to allow credit of TDS of Rs.21,13,229/- would require verification on facts. Be that as it may, in all fairness we direct the A.O to look into the said claim of the assessee, and in case if the same is found to be in order, then allow the credit for the deficit amount TDS. We thus in terms of our aforesaid observations restore the issue as regards allowing of short credit of TDS to the file of the A.O. The Ground of Appeal No. 3 raised by the assessee is allowed for statistical purposes.
P a g e | 12 IT (TP)A. No. 2258/Mum/2017 A.Y. 2012-13 Firstsource Solutions Limited Vs. The Deputy Commissioner of Income Tax, Circle-12(2)(1) 10. We shall now advert to the contention advanced by the ld. A.R as regards the increasing of the „book profit‟ by the amount of disallowance worked out under Sec.14A r.w. Rule 8D, as had been assailed before us. We find ourselves to be in agreement with the ld. A.R that the disallowance worked out under Sec. 14A is not to be considered while computing the „book profit‟ under Sec.115JB of the I.T Act. In fact, the said issue is squarely covered in favour of the assessee by the decision of the „Special bench‟ of the ITAT, Delhi in the case of ACIT vs. Vireet Investments (P) Ltd. (2017) 188 TTJ 1 (Del) (SB). We thus are of the considered view that the A.O had erred in increasing the „book profit‟ under Sec.115JB by the amount of the disallowance worked out in the hands of the assessee under Sec.14A r.w. Rule 8D. In terms of our aforesaid observations we vacate the observations of the lower authorities in context of the issue under consideration. The Ground of appeal
No. 5 is allowed.
11. We shall now advert to the transfer pricing adjustment of Rs. 5,34,18,750/-made by the A.O/TPO on account of “guarantee commission”. As observed by us hereinabove, the assessee had gone for an “Advance Pricing Agreement” (for short „APA‟) which had been finalised on 08.01.2019. As per the APA the „guarantee commission‟ had been settled @ 0.73% and the assessee is stated to have already offered the incremental amount to tax in terms of the modified return of income filed pursuant to signing of the APA. As submitted by the ld. A.R, in the backdrop of the aforesaid facts the grounds of appeal no. 6 and 7 raised by the assessee before us in context of the TP adjustment on account of „guarantee commission‟ would no more survive and would resultantly be rendered as infructuous. The Grounds of appeal No. 6 and 7 raised by the assessee before us are dismissed as having been rendered as infructuous.