THOMAS COOK (INDIA) LTD,MUMBAI vs. DCIT 1(3)(2), MUMBAI

Sr. Name of the Company OP/TC as OP/TC as OP/TC using Business Description No. Per TP Using net sales study data for FY 2010-11 F.Y.2010-11 1 Crown Tours Ltd. 2.00% 0.96% 3.11% The company is involved in tourism related activities and is the IATA Travel agent 2 Tamarind Tour Pvt. 2.89% -0.26% -1.96% The company is involved in Ltd., tour management activities 3 Balmer Lawrie & 3.20% 3.65% 3.65% The segment is involved in Co.Ltd., the provision of travel Travel & Tours agency services. 4 Trade Wings Ltd., - 13.74% 17.68% 17.68% The segment is involved in the M/s.Thomas Cook (India) Ltd., Travel & Tour provision of travel, tourism and related services 5 Indo Asia Leisure 4.90% 2.24% 9.43% The company is involved in the provision of hospitality services and derives its revenue from tour receipts, room tariff, restaurant sales, hotel operations etc., 6 Pearl International 6.19% 7.14% 7.14% The company is involved in Tours and the provision of tourism and Travel Limited travel related services 5.42% 5.24% 6.60%

M/s.Thomas Cook (India) Ltd., discussion. For the other two new comparables namely, M/s Indo Asia Leisure and M/s Pearl International Tours and Travels Ltd., (which were not in the comparability list in the earlier years), the ld. DRP gave independent reason for the rejection of the comparables. Before us, Mr. Pardiwala submitted that now the Tribunal in the earlier year has accepted the said four comparables in the comparability list and if same are taken as the comparables, then assessee‟s margin vis-à-vis margin of comparables would be within the tolerance range of +/-5%. In that case the two new comparables may not be adjudicated as it will become purely academic. The learned CIT DR strongly relied upon the order of the DRP and submitted that the detailed reasons have been given by the DRP for rejecting these comparables chosen by the assessee.

M/s.Thomas Cook (India) Ltd., observation and the findings of the Tribunal in this regard reads as under:-

7.3. We find that the assessee was engaged in travel industry primarily providing travel and tour services, that the travel and related segment activities of the assessee included two IT.s- handling of inbound tourists and handling of out bound tourists, that both the transactions were aggregated for the purpose of bench -marking analysis, that the assessee-company was selected as tested part, that TNMM was adopted as most appropriate method, that the profit level indicator (PLI) used was operating profit/operating cost (OP/TC),that it had selected four comparables to prove the arm's length of the IT.s., that the operating margin of the assessee was 10.76% as against the margin of 4.39% of the comparables, that the updated margin was found to be within the +- 5% range, that while making the adjustment the TPO had rejected three comparables namely CTL,TTPL and BLCL, that after rejecting the three comparables he had recomputed the operating margin of balance one comparable i.e. TWL@ 45.06%, that while making the adjustment the TPO reduced bad debt expenses from operating cost on the ground that same was abnormal in nature, that he increased the margin of the comparable to 45.06% and benchmarked the same against assessee's operating margin of 11.52% after reducing bad debt expenses of the assessee, that he made an adjustment of Rs.12.08 Crores, that the DRP confirmed the rejection of comparables and dismissed other arguments. We are aware that the principles of res-judicata do not apply to the income tax proceedings. But, the rule of consistency applies. Without assigning valid reason for rejecting the earlier years' stand, the TPO should not have rejected the comparables that were found valid comparables in previous years. Without bringing on record the salient features of the year under consideration as compared to the facts of the earlier years, the departmental authorities cannot take an opposite view. It brings uncertainty in the assessment proceedings. In our opinion, stand taken in the earlier years should not be disturbed in the subsequent years until and unless new facts emerge and the same are confronted to the assessee. Here, we would like to refer to the case of Galileo Nederland BV,(367ITR319),of the Hon'ble Delhi High Court wherein it has been held that decision on an issue or question taken in earlier years though not binding should be followed and not ignored unless there are good and sufficient reasons to take a different view, that said principle was based upon rules of certainty and that a decision taken after due application of mind should be followed consistently as this lead to certainty, unless M/s.Thomas Cook (India) Ltd., there were valid and good reasons for deviating and not accepting earlier decision. The Hon'ble Bombay High Court in the case of Aroni Commercials Ltd.(362 ITR 403) has held as under: "Though the principle of res judicata is not applicable to tax matters as each year is separate and distinct, nevertheless where facts are identical from year to year, there has to be uniformity and in treatment." In the case under consideration we find that the TPO/DRP has not proved that there was a change in the facts, as compared to earlier years and even if they existed same were not brought on record. In short, the TPO/DRP has failed to prove the justification for deviating from the decision taken earlier. We find that the TPO and the DRP had taken a view that bad debts should be excluded as an extra ordinary item while calculating margin, that accordingly the final margin was altered. But, they have not addressed the basic and fundamental issue as to whether the item was of operating nature. The TPO had not demonstrated the non-operating nature of the bad debts. Therefore in our opinion the rationale for eliminating bad debts and reworking of PLI was unjustified. The issue of inclusion/exclusion of bad debts for the purposes of computation of margin has already been deliberated upon by the Tribunal on more than one occasion. While deciding the appeal of the case of M/s. Kenexa Technologies Pvt. Ltd. Hyderabad,(ITA/243/Hyd/2014,dt.14.11. 2014),the Tribunal has held as under: "40.With respect to ground No. 2.6.3 and 2.6.4, it was argued by the learned counsel that the TPO erred in computing the margins of comparable companies by considering the provision for bad and doubtful debts and bad debts as non-operative expenditure.

M/s.Thomas Cook (India) Ltd., 107. The next item relates to balances written back. In our considered opinion, finding given in respect of provisions written back is equally applicable to balances written back more particularly when ld. CIT(A) has not given any separate finding and the Transfer Pricing Officer has said nothing specifically on this item. The balances written back should also be treated as part of operating profit. We direct accordingly."

M/s.Thomas Cook (India) Ltd., 6. Thus, following the earlier year precedence, we hold that the above four comparables companies as selected by the assessee should be accepted for benchmarking the assessee‟s margin. As submitted by the learned Counsel if these four comparables are accepted, then other two new comparables i.e., Indo Asia Leisure and Pearl International Tours and Travel Ltd., need not be adjudicated, because assessee‟s margin it will fall within the range of +/-5%. Accordingly, we are not adjudicating the two new comparables as they have become purely academic. Accordingly Ground No.1 raised by the assessee is allowed.

7. Regarding Transfer Pricing Adjustment of Rs.14,89,21,569/- in relation to the AMP expenses as raised vide ground no. 2, it has been pointed out that this issue is also covered by the decision of the Tribunal in assessee‟s own case for the A.Y.2010-11. The assessee pays for name and license fees to Thomas Cook, UK for the use of “Thomas Cook” name/ logo in connection with its business operations i.e., travels and services and financial service business. The TPO‟s case is that out of the total AMP expenses incurred by the assessee, majority of the expenses spent towards promoting the brand of AE in India which is incurred by the assessee. Accordingly, he held that out of the total expenditure of Rs.20,27,67,291/- incurred on AMP expenses, amount of M/s.Thomas Cook (India) Ltd., Rs.14,89,21,569/- is for promotion of brand name of the AE and accordingly, he disallowed the AMP expenses spent to turnover ratio of the assessee of 7.15% vis-à-vis the comparable company Trade Wings Ltd., of 1.9%. The assessee‟s case had been that the TPO had merely compared the AMP/Sales ratio of the comparable - Trade Wings Ltd. against the assessee's AMP/Sales ratio and has made the disallowance. The Ld. TPO has not used any of the methods prescribed under section 92C(1) of the Act or Rule 10B of the Income tax Rules, 1962, for making any TP adjustments on account of AMP spent. This indicates that the approach used by the Ld. TPO is adhoc and is completely outside the purview of Indian transfer pricing regulations.

8.3. We have heard the rival submissions and perused the material before us. In the earlier part of our order, we have mentioned that we would like to deal with the issue of AMP expenses for both the years at one place, as there is no change in the facts except for the amounts involved and the non adjudication of the issue in the earlier year. The arguments of the assessee for both the years are identical. We find that assessee had incurred an expenditure of Rs.12,25,71,652/-and Rs.10,01,37,032/-respectively for the M/s.Thomas Cook (India) Ltd., earlier and current AY. under the head AMP, that it was paying name and licence fee to TCUK, that the TPO held that the assessee was spending much more than Industry average in promoting and building brand of TCUK, that he made an adjustment of Rs.8.09 crores and Rs.8.31 crores for the AY.s.2009-10 and AY.2010-11 towards AMP expenditure, that the assessee had filed additional evidences before the FAA, that the FAA did not admit the evidences referring to the provisions of Rule 46A of the Rules, that he upheld the order of the TPO, that for the AY.2010-11 the assessee had filed objections before the DRP, that the adjustment made by the TPO were confirmed the DRP, that the adjustment was made/confirmed by the TPO/DRP because both of them were of the opinion that by incurring expenditure in India the assessee was benefitting a brand name of TCUK. 8.3.1.First of all, we would like to mention that as on today the legal position is as clear as crystal with regard to AMP expenses. The Hon'ble Delhi High Court has dealt the issue in depth and has arrived at the conclusion that in absence of any agreement for sharing AMP expenses it cannot be held that AMP expenditure was an IT. Probable incidental benefit to the AE would not make such a transaction an IT. The factors like payment under the head AMP expenditure to the third independent parties, promoting own business interest by way of AMP expenses take away the alleged 'internationality' of the transaction. In absence of any direct or direct evidence of incurring of AMP expenses by the assessee for the benefit of the AE or on behalf of the AE,it is has to be held that the transaction in dispute is not covered by the provisions of section 92B or 92B(1) of the Act and hence is not an IT. Once it goes out of the ambit of being an IT, FAR analysis of comparables or any other adjustment will and cannot come in picture. Folk wisdom of rural India the saying that mother (Maa) is must for existence of her sister (Mausi). Similarly the existence of an IT is the pre-requisite of applying the provisions of chapter X of the Act. The assessee from the very beginning was arguing that it is not an IT, but, the TPO and the DRP did not deal with the core issue. In these circumstances, we are of the opinion that the matter should not be remitted back to the file of the TPO/ AO. Litigation has to be put to an end at some stage. Judicial time of every authority, including the TPO/DRP is very precious and it should not be wasted for dealing with mere academic arguments. The recourse of remanding of matters/issue to the AO.s has to resorted rarely and selectively. In the case before us, no reasonable cause has been shown to justify the setting aside the issue. Here, we would also like to refer to the case of Bosch and Lomb (supra) wherein all the arguments raised by the TPO & FAA/DRP have been deliberated upon in length and the relevant portion of the order reads as under:

M/s.Thomas Cook (India) Ltd., "53.Areading of the heading of Chapter X['Computation of income from international transactions having regard to arm's length price"]and Section 92 (1) which states that any income arising from an international transaction shall be computed having regard to the ALP and Section 92C (1) which sets out the different methods of determining the ALP, makes it clear that the transfer pricing adjustment is made by substituting the ALP for the price of the transaction. To begin with there has to be an international transaction with a certain disclosed price. The transfer pricing adjustment envisages the substitution of the price of such international transaction with the ALP.

M/s.Thomas Cook (India) Ltd., 62. In the present case, the mere fact that B&L, USA through B&L, South Asia, Inc holds 99.9% of the share of the Assessee will not ipso facto lead to the conclusion that the mere increasing of AMP expenditure by the Assessee involves an international transaction in that regard with B&L, USA. A similar contention by the Revenue, namely the fact that even if there is no explicit arrangement, the fact that the benefit of such AMP expenses would also encore to the AE is itself self sufficient to infer the existence of an international transaction has been negatived by the Court in Maruti Suzuki India Ltd. (supra) as under: "68. The above submissions proceed purely on surmises and conjectures and if accepted as such will lead to sending the tax authorities themselves on a wild-goose chase of what can at best be described as a 'mirage'. First of all, there has to be a clear statutory mandate for such an· exercise. The Court is unable to find one. To the question whether there is any 'machinery' provision for determining the existence of an international transaction involving AMP expenses, Mr. Srivastava only referred to Section 92F (ii) which defines ALP to mean a price "which is applied or proposed to be applied in a transaction between persons other than AEs in uncontrolled conditions", Since the reference is to 'price' and to 'uncontrolled conditions' it implicitly brings into play the BLT. In other words, it emphasises that where the price is something other than what would be paid or charged by one entity from another in uncontrolled situations then that would be the ALP. The Court does not see this as a machinery provision particularly -in-light of the fact that -the-BLT has been expressly negatived by the Court in Sony Ericsson. Therefore, the existence of an international transaction will have to be established de hors the BLT, 70. What is clear is that it. is the 'price' of an international transaction which is required to be adjusted: The very existence of an international transaction cannot be presumed by assigning some price to it and then deducing that since it is not an ALP, an adjustment had to be made. The -burden is on the Revenue to first show the existence of an international transaction. Next, to ascertain the disclosed 'price' of such transaction and thereafter ask whether it is an ALP. If the answer to that is in the negative the TP adjustment should follow. The objective of Chapter X is to make adjustments to the price of an international transaction which the AEs involved may seek to shift from one jurisdiction to another. An 'assumed' price cannot form the reason for making an ALP adjustment. " 71- Since a quantitative adjustment is not permissible for the purposes of a TP adjustment under Chapter X, equally it cannot be permitted in respect of AMP expenses either. As already noticed hereinbefore, what the Revenue has sought to do in the M/s.Thomas Cook (India) Ltd., present. case is to resort to a quantitative adjustment by first determining whether the AMP spend of the Assessee on- application of the BLT, is excessive, thereby evidencing the existence of an international transaction involving the AE. The quantitative determination forms the very basis for the entire TP exercise in the present case. 74.The problem with the Revenue's approach is that it wants every instance of an AMP spend by an Indian entity which happens to use the brand of a foreign AE to be presumed to involve an international transaction. And this, notwithstanding that this is not one of the deemed international transactions listed under the Explanation to Section 92B of the Act. The problem does not stop here. Even if a transaction involving an AMP spend for a foreign AE is able to be located in some agreement, written (for e.g., the sample agreements produced before the Court by the Revenue) or otherwise, how should a TPO proceed to benchmark the portion of such AMP spend that the Indian entity should be compensated for? 63. Further, in Maruti Suzuki India Ltd. '(supra) the Court further explained the absence of a 'machinery provision qua AMP expenses by the following analogy: "75. As an analogy; and for-no other purpose; in the- context of a domestic transaction involving two or more related parties, reference may' be made to Section 40 A (2) (a) under which certain types of expenditure incurred by way of payment to related parties is not deductible where the AO is of the opinion that such expenditure is excessive or unreasonable having regard to the fair market value of the goods." In such event, so much of the expenditure as is so considered by him to be excessive or unreasonable shall not be allowed as a deduction." The AO in such an instance deploys the 'best judgment' assessment as a device to disallow what he considers to be an excessive expenditure. There is no corresponding 'machinery' provision in Chapter X which enables' an AO to determine what should be the fair 'compensation' an Indian entity would be entitled to if it is found' that there is an International transaction in that regard. In practical terms, absent a clear statutory guidance, this may encounter further difficulties. The strength of a brand, which could be product specific, may be "impacted by numerous other imponderables not limited to the nature of the industry, the geographical peculiarities, economic trends both international and domestic, the consumption patterns, market behaviour and so on. A simplistic approach using one of the modes similar to the ones contemplated by Section 92C may not only be legally impermissible but will lend itself to arbitrariness. What is then needed is a clear statutory scheme encapsulating the legislative policy and mandate which provides the necessary checks against arbitrariness while at the same time addressing the apprehension of tax avoidance."

M/s.Thomas Cook (India) Ltd., 64. In the absence of any machinery provision, bringing an imagined transaction to tax is not possible. The decisions in CIT v. B.C. Srinivasa Setty (1981) 128 ITR 294 (SC) and PNB Finance Ltd. v, CIT (2008) 307 ITR 75 (SC) make this position explicit. Therefore, where the existence of an international transaction involving AMP expense with an ascertainable price is- unable to be shown to exist, even if such price is nil, Chapter X provisions cannot be invoked to undertake a TP adjustment exercise.

10. Thus, following the earlier year precedence, this issue is decided in favour of the assessee and accordingly Ground No.2 as raised by the assessee is allowed.

M/s.Thomas Cook (India) Ltd., 11. Next issue relates to Transfer Pricing Adjustment of Rs.2,12,060/- as raised in ground no.3 in relation to disallowance in respect of transaction of export of foreign currency. Learned TPO while analyzing the financial services segment and specially the international transaction pertaining to export of currencies, noted that assessee has followed CUP method to benchmark the said transaction. The assessee has also corroborated the analysis of the said transaction by using TNMM. The assessee has recorded margin of 31.68% on a base of OP/TC, whereas the operating margin of 5 comparables selected by the assessee under TNMM was only 6.20%. For the purpose of CUP analysis the assessee contended that during the relevant year, the assessee has exported foreign currency to its AE in Mauritius. Similarly it has exported foreign currency to unrelated parties viz., "Travelex‟, 'HSBC' and 'NEFC'. It was further submitted that for the foreign currency exported by the assessee to the AE and the Non-AEs, an equivalent credit is received by the assessee in its Nostro accounts. As per the assessee, there is only one difference between Export to AE and Non AE, that is, in the case of the AE export assessee had paid insurance of USD 4610 while for Non AE it is not incurred by the assessee.

M/s.Thomas Cook (India) Ltd., 12. The TPO required the assessee to explain why the assessee has incurred insurance expenses for AE when for non-AE assessee does not have to incur such an expense. In response, assessee had stated that insurance expense is with the third party and hence, it cannot be treated as an international transaction. The TPO however made the adjustment after observing and holding as under:- It is a fact that the assessee has benchmarked this transaction applying CUP. Assessee has compared the export of Currency to AE and Non AE. On perusal of the submission, it is observed that the assessee has paid Insurance Fee for the Currency exported to AE whereas no insurance fee has been paid for the Currency Exported to Non AE. Assessee's submission has been considered. Nowhere in the submission has assessee given the reason for payment of Insurance for AE and non-payment of Insurance for Non AE. The assessee has merely mentioned some other facts. Assessee has not touched the issue why Insurance is paid in the case of AE only. In CUP one has to consider similarity. Here, the assessee has paid Insurance in the case of Export to AE and no insurance in the case of Export to Non AE. In an independent scenario, no one will pay insurance if there is an option not to pay. Therefore, the transaction is not at Arm's length.

M/s.Thomas Cook (India) Ltd., of such export of foreign currency" the assessee incurs certain expenses such as counting fee and insurance cost for third parties and AEs respectively. A comparison of the net position of the assessee with respect to currencies exported and expenses incurred for transactions between AE and third parties in relation to export of foreign currency by TClL was provided as below:

Currency Amount Counting Incentive Insurance NET INCOME Exported to exported and Free payable receivable incurred / (LOSS) equivalent Nastro Credit received HSBC 78,893,264 32,729 -- -- (32,729) NFEC 229,516,520 -- -- -- (BAHRAIN) Bank of 958,562,890 394,943 -- -- (394,043) America Total of Non- 1,266,972,674 426,772 -- -- (426,772) AE Thomas Cook 3,602,875 -- -- 4,610 (4,610) (Mauritius Operations Co. Ltd., („TCMOL‟)

It was further pointed out that in A.Y.2010-11, this issue has been decided in favour of the assessee.

With reference to the submissions of the DR, we would like mention that first of all the issue before us is not an assessee that is engaged in distribution and manufacturing of certain

M/s.Thomas Cook (India) Ltd., goods, so the question of slicing of expense in two portions would not arise. However, the other part of the argument that matter should be restored back to the file of the AO/TPO as they were following the order of LG and did not have benefit of later judgments of the Hon'ble High Court, we would like to mention that matter can be restored back in certain conditions only. Restoration of matters to the AO.s is not a tool to give one more opportunity of hearing to the litigants. It is not advisable to prolong the judicial proceedings in the name of fair play. It is not a case where new evidences have been placed on record by the assessee, that were not made available to the AO at the time of original assessment. It is not also a matter wherein some ground of appeal has remained un-adjudicated. There is violation of principles of natural justice. So, we hold that it is not a fit case to be sent back to the TPO for fresh adjudication.

10.1. We find that in assessee's own case (ITA/2465/M/2011- AY 2005-06 dt.31.10. 2013) identical issue has been decided as under: 4. The facts relating to the issue relating to TP adjustment are that the assessee did not charge any fees from its Associated Enterprises (AE) (namely HSBC, Travellex and TCMOL), while he is charging the same from other related parties. Applying the Arm's Length Price (ALP) provisions, TPO made an addition of Rs.7,46,243/-. Matter travelled to the CIT (A). During the proceeding before the CIT (A), assessee submitted that in case of exports to non-AEs i.e., unrelated parties, assessee incurred losses as compared to the parties to the AE (TCMOL), therefore, it is a revenue loss. Further, he pointed out that with regard to exports to the AEs, assessee was not subject to any counting fees charged by AEs, unlike third parties (HSBC / Travelex). Normally, counting fees paid is often more than an incentive receipt. If the both service fees and counting fees were taken, it would lead to loss of income to the assessee. The assessee relied M/s.Thomas Cook (India) Ltd., on various TP Guidelines of Organization for Economic Cooperation and Development (OECD) in favour of such counting principle and submitted that ALP principle need not be invoked in such circumstances.CIT (A) considered the same and allowed the claim of the assessee and deleted the adjustment as seen from para 2.10 of the impugned order.

5. During the proceedings before us, Ld DR relied on the order of the AO and the TPO and submitted that every transaction has to be independently benchmarked. However, there is no specific submission by the Ld DR to counter the reasoning given by the CIT (A) while granting the relief to the assessee.

M/s.Thomas Cook (India) Ltd., 12. Last Ground of appeal deals with disallowance u/s. 14A r.w.r. 8D of the Rules of Rs.96.20 lakhs. During the assessment proceedings, the AO found that the assessee had received dividend income of Rs.11.01 lakhs on mutual funds and same was claimed exempt, that it had not allocated any expenditure towards the earning of the exempt income. He directed the assessee to file explanation in that regard. Vide its letter dated 3/02/2014,the assessee stated that it had Suo Motu disallowed Rs. 6,415/- under the provisions of section 14A of the Act, that the dividend income was claimed as exempt income predation of total income u/s.10 (35) of the Act, that it had not incurred any expenditure, direct or indirect, for earning the said exempt income, that the provisions of section 14A read with rule 8D of the Income-tax Rules, 1962(Rules)were not applicable in respect of strategic investment made in subsidiaries, that expenditure incurred for acquiring shares out of commercial expediency had already been capitalised, that own funds during the year were sufficient to make investment in subsidiary entities, that the interest expenditure for the year pertain to working capital loans, that domestic borrowings for making downstream investment were not permitted as per the guidelines of Ministry of Industry, that there was no nexus between interest expenditure and the investment made by the assessee, that no fresh investment was made during the year under consideration. The AO did not agree with the assessee and held that investments were made out of funds and the funds always involved time, cost and opportunity cost, that making investment was an informed decision and it would involve study and research, that required manpower time and funds to make investments, the cost would be in the form of direct as well as indirect costs, that the assessee's 1261 & 1238/M/15 Thomas Cook explanation that no interest expenses were involved for earning exempt income was not acceptable, that investments were made from the pool of funds available to assessee, that it was option of the assessee to invest the surplus fund in the investments and used borrowed funds for business, that had the surplus funds being used for business purposes there would not had been any need to borrow and the interest expenses would have been proportionately reduced. Invoking the provisions of section 14A(2)r.w.r.8D of the Rules, he made a disallowance of Rs. 96,20, 694/-. Aggrieved by the order of the AO, the assessee filed objections before the DRP. After considering the submissions of the assessee and the draft order of the AO, the DRP held the AO had rightly applied provisions of Rule 8D of the Rules, that in the earlier years the tribunal had upheld the disallowance at the rate of 2% of the exempt income, that in those years Rule 8D M/s.Thomas Cook (India) Ltd., was not applicable, that provisions of the Rule were applicable for the year under consideration. Finally, the DRP upheld the disallowance made by the AO. 12.1. Before us, the AR stated that strategic investment could not be considered for 14A disallowance, that almost all the investment(Rs.192.54 crores), was made in domestic(Rs.184.99 crores)or overseas subsidiaries(Rs.7.54 crores), that the AO and the DRP had not considered the above issue while making/ confirming the disallowance. DR left the issue to the discretion of the bench. 12.2. After hearing both the sides we are of the opinion that matter should be restored back to the file of the AO for fresh adjudication. The Hon'ble High Courts have laid down the principle that strategic investment should be excluded from the list of investments, while computing the disallowance u/s. 14Ar.w.r 8D of the Rules. As this vital issue has not been considered by the lower authorities, so, we are of the opinion that the AO should decide the issue 1261 & 1238/M/15 Thomas Cook afresh after affording reasonable opportunity to the assessee. Sixth ground is decided in favour of the assessee, in part.

19. Thus, in view of the aforesaid precedence, we also restore the matter back to the file of the AO for fresh adjudicating in line with the same direction, accordingly Ground No.5 is treated as allowed for statistical purposes.