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2019 (5) TMI 1828
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....he ALP of the international transaction. The TPO, vide order dated 6th January, 2015, proposed upward adjustment of Rs. 35,31,33,463/- to the value of the international transactions entered into by the assessee company. The Assessing Officer, accordingly passed the draft order making addition of the same. The assessee filed objections against the draft order passed by the Assessing Officer. The DRP, vide order dated 12th August, 2015, directed the TPO to verify the correctness of the computation of the operating margin of the comparable companies and the assessee for determining the ALP of the international transaction of the assessee in accordance with the provisions of the Act. Subsequently, the TPO, vide order dated 14th September, 2015, rectified the computation as per the corrected margin of the comparables as per the direction of the DRP and made an upward adjustment of Rs. 26,32,08,740/-. The Assessing Officer accordingly made addition of the same in the final assessment order. The Assessing Officer further held that the purchase of time licence of computer software of Rs. 69,45,581/- is a capital expenditure as against the claim as revenue expenditure made by the assessee. ....
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.... functions, assets and risk profile of the companies used for comparison with the Appellant, thereby including in the final comparable set certain companies with completely different functional profile; 2.4 erroneously introducing companies having abnormal margins in the final comparable set that signify high element of entrepreneurial risk as opposed to the Appellant who is a captive service provider bearing limited risk; 2.5. excluding certain comparables considered by the Appellant in its TP documentation/ fresh search on arbitrary/frivolous grounds even though they are comparable to the Appellant in terms of functions performed, assets employed and risks assumed; 2.6. resorting to arbitrary rejection of loss making companies based on erroneous and inconsistent reasons on account of declining revenue/ persistent loss; 2.7. the Ld. DRP erred in confirming the Ld. AO/TPO's approach in relying on completely new facts without giving the Appellant any opportunity of being heard. 3. Ld. DRP erred in confirming the Ld. AO/Ld. TPO's approach of considering bank charges, provision for doubtful debts and Provision no longer required written back as non-....
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....Act and the judicial precedence in this regard. 12. Without prejudice to the above and assuming without accepting the levy of interest under section 234D, the Ld. AO has erred in the facts and in law in computing excess interest under section 234D of the Act of Rs. 56,805. 13. That on facts of the case and in law, the Ld. AO has grossly erred in initiating penalty proceedings under section 271(l)(c) of the Act. The above grounds of appeal are mutually exclusive and without prejudice to each other. The Appellant craves leave to add, alter, amend, vary or rescind any of the above grounds either before or at the time of hearing in the interest of natural justice." 4. The assessee has also filed an application under Rule 11 of the ITAT Rules for filing an additional ground. The additional ground reads as under:- "On the facts and in the circumstances of the case the ld.A.O./DRP were not correct in including the following entities in the list of appropriate comparable:- i) Larsen & Toubro Infotech Limited; ii) Sasken Communications Technologies Limited; iii) Persistent Systems Limited; iv) Persistent Systems and ....
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.... 2.6, the ld. counsel for the assessee submitted that the assessee during the impugned assessment year has entered into international transaction with its AE in respect of provision of IC design and software development services totaling to Rs. 2,14,75,27,845/-. The assessee had adopted TNMM as the most appropriate method and the PLI was determined by OP/OC. The assessee used 23 comparables and the average arithmetic mean of the comparables was 8.68% whereas the arithmetic mean of the assessee was 5.43%. It was accordingly submitted before the TPO that the ALP of the international transaction is at arm's length price. However, the TPO disregarded the same and used 19 comparables with average OP/OC at 21.49% and determined an adjustment of Rs. 35,31,33,463/-. The assessee objected the comparables before the DRP and the DRP, vide order dated 7th August, 2015, directed the TPO to treat the foreign exchange loss/gain as operating item, directed amortization of goodwill to be treated as non-operating item, directed the exclusion of Infosys Ltd. and Zylog Systems Ltd. from the list of comparable companies and directed the TPO to verify and rectify net margins of the company. The rest of ....
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.... software development for the associated enterprises (AEs). 13. Referring to the orders of the Tribunal for assessment years 2009-10, 2010-11 & 2013-14 the ld. counsel drew the attention of the Bench to the relevant paras of the orders of the Tribunal which reads as under:- ITA No.1672/Del/2014 for A.Y. 2009-10 (P.B. page 1922, Vol.V) "30..., a captive service provider involved at the design and development stage only with a limited scope of work and is not involved in the process of conceptualization of any products or works and works only on the specification provided by the STE Group for the implementation of 1C design, its maintenance, verification and software development. So, the role of STE is that of a contract captive design centre and as such, the findings of the TPO in this regard cannot be interfered with.." ITA Nos.609& 168/Del/2015 for A.Y. 2010-11 (P.B. page 1861, Vol.V) "9. Undisputedly the facts of the case under consideration are identical to that of AY 2009-10. In an order passed by the Tribunal in assessee's own case in 1TA No.l672/Del/2014 for AY 2009-10 order dated 22.02.2017, available at pages 1966 to 2001of Vol. ....
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....solutions, etc., which can be verified from the annual report of the company, copy of which is placed in the paper book. Further, this company fails employee cost filter since the same is 13.74% for this year. It has also incurred expenditure on R&D expenses and has unreliable segment information. Relying on various decisions, he submitted that this company was excluded by the Bangalore Bench of the Tribunal in the case of M/s Electronic Imaging India Pvt. Ltd. vide ITA No.1506/Bang/2015, order dated 14th July, 2017 for assessment year 2011-12. This company has also been excluded as a comparable in the case of Philips India Ltd. vide ITA No.863 & 539/Kol/2016, order dated 15th December, 2017 and also by the Madras Bench of the Tribunal in the case of M/s Symantec Software & Services India Pvt. Ltd. vide ITA No.614/Mds/2016, order dated 20th January, 2017. Referring to the various other decisions of the Tribunal, he submitted that this company was excluded from the list of comparables. 19. So far as E-infochips Limited is concerned, he submitted that this company should also be excluded since it operates as a full-fledged risk taking entrepreneur whereas the assessee company oper....
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....llowing products:- i) Learning Management Products; ii) Training Management Products; iii) Simulator Products; iv) Knowledge based Content; v) Optimization Products; vi) Sage CRM Server 200; vii) Service Capture; viii) Tally 9 Gold Multi User; ix) Teamprise / Eclipse 3.0; x) Vstudio Team Ed (5 Users); xi) Adobe Nog Elixir with Media Kit; xii) Device Lock Software; and xiii) Logitek G 25 Maming Wheel. 22. He submitted that the segments of Sankhya Infotech are unreliable since expenses such as depreciation and interest which form a significant component of total expenses, are not specifically allocable to specific segment as the underlying services are used interchangeably. The company has also research and development activities whereas the assessee does not have such R&D. He submitted that the TPO himself did not select this company as a comparable for assessment year 2012-13 and 2013-14 and accordingly had accepted the assessee's approach of rejection of this company in its TP studies. Referring to the decision of the Delhi Bench of the Tribunal in the case....
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....on account of functional dissimilarity, huge research and development expenditure and abnormal year of operations. 25. Referring to the decision of the Delhi Bench of the Tribunal in the case of Alcatel-Lucent India Limited (ITA No.6856/Del/2015), he submitted that this company was excluded from the list of comparables on account of functional dissimilarity and on further appeal by the Revenue, the Hon'ble High Court in ITA No.515/2017, has upheld the action of the Tribunal in excluding this company from the list of comparables. 26. So far as inclusion of Persistent Systems Ltd. (Persistent) is concerned, he submitted that here also this company is functionally dissimilar. While Persistent operates as a full-fledged risk taking entrepreneur, the assessee company operates at minimal risk as 100% services are provided to AEs and is remunerated on a cost plus basis. Persistent Systems Ltd. is predominantly engaged in outsourced software development services. It has got income from sale of software services and products whereas the assessee is mainly engaged in software development related to design, implementation and maintenance with respect to ICs as per specifications pro....
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....that Sasken was excluded from the list of comparables. Relying on various other decisions copies of which are placed in the paper book, he submitted that Sasken was excluded from the list of comparables. 28. So far as exclusion of certain companies by the TPO/DRP is concerned, the ld. counsel for the assessee objected to the exclusion of the following companies from the list of comparables by the TPO/DRP:- i) R. Systems International Limited ii) CG-VAK Software & Exports Ltd. iii) CAT Technologies Ltd. iv) Thinksoft Global Services Ltd. v) Caliber Point Business Solutions Ltd. vi) Maveric Systems Ltd. 29. So far as R. Systems International Ltd. is concerned, he submitted that this has been excluded by the TPO solely on the ground of its financial year being calendar year. Referring to the decision of the Tribunal in assessee's own case for assessment year 2010-11, he submitted that the Tribunal in the said decision has held that the comparables cannot be rejected merely on the ground that financial year followed is different. Referring to the decision of the Hon'ble Delhi High Court in the case of Mckinsey Knowledge in....
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....M/s Marvell India Pvt. Ltd., ITA No.384/Bang/2016, order dated 28th June, 2017 for assessment year 201112. He submitted that this company is accepted by the TPO as a comparable for assessment year 2010-11. He accordingly submitted that this company should be retained as a comparable. 33. So far as Caliber Point Business Solutions Ltd. is concerned, he submitted that the TPO rejected this company from the list of comparables on the ground that it provides BPO services and, therefore, is not comparable. Further, this company does not pass the different financial year ending filter. He submitted that the Tribunal in assessee's own case for assessment year 2010-11 has held that the comparable cannot be rejected merely on the ground that financial year followed is different. Referring to the various decisions including that of Hon'ble Delhi High Court in the case of Mckinsey Knowledge Centre India (P) Ltd., ITA No.217/2014, he submitted that this company should be retained as a comparable since from the available data on record, the results for F.Y. can reasonably be extrapolated. 34. So far as Maveric Systems Ltd. is concerned, he submitted that the TPO rejected the same on t....
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....ile doing so, the Tribunal has relied upon the decision of the Hon'ble Delhi High Court in the case of CIT vs. Munjal Showa Ltd. reported in 329 ITR 449. He accordingly submitted that the expenditure on training of employees amounting to Rs. 9,85,574/- should be allowed as revenue expenditure. He submitted that if the same is allowed as revenue expenditure, then, grounds of appeal No.8 and 9 become infructuous. 38. So far as ground of appeal No.10 is concerned, he submitted that the assessee had claimed depreciation on goodwill amounting to Rs. 2,45,01,457/- during the course of assessment proceedings, in accordance with the decision of the Hon'ble Supreme Court in the case of Smifs Securities Ltd. reported in 24 taxmann.com 222. He submitted that the DRP following the decision of Hon'ble Supreme Court in Goetze (India) Ltd. reported in 284 ITR 323, rejected the claim of the assessee on the ground that the assessee did not claim such depreciation on goodwill in its return of income. He submitted that the Tribunal in assessee's own case for assessment year 2009-10 and 2010-11, has decided the issue regarding the non-applicability of the Hon'ble Supreme Court in th....
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....he master service agreement dated 31st August, 2008 with ST-Ericsson SA. It performs the limited functions in the intermediate stage of the design and software development for the AEs. Since the functional profile of the assessee company has been accepted by the coordinate Benches of the Tribunal in assessee's own case for assessment year 200910 and 2010-11 and since the facts of the impugned assessment year are identical to the facts of the assessee for assessment year 2009-10, therefore, in view of the decision of the Tribunal, certain comparables included by the Assessing Officer/TPO/DRP should be excluded. Similarly, it is also his argument that certain comparables which were excluded by the TPO/DRP should not have been excluded and should be retained. 41. With the above background, we will consider each comparable. 42. So far as Persistent Systems Ltd. is concerned, we find from the details produced by the assessee in the paper book that this company operates as a fullfledged risk taking entrepreneur and is predominantly engaged in outsourced software product development services. It has got income from sale of software services and products and the company has disclosed....
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.... "THIRDWARE SOLUTIONS LTD. (THIRDWARE) 47. The taxpayer sought exclusion of Thirdware on ground of functional dissimilarity being engaged into sale of software products and on the ground that Thirdware has been ordered to be excluded by the coordinate Bench of the Tribunal in taxpayer's own case for AY 2009-10 (supra). Undisputedly, there is no change in the functional profile of the taxpayer since AY 2009-10. Coordinate Bench of the Tribunal in taxpayer's own case for AY 2009-10 ordered to exclude Thirdware by returning following findings :- "47. This is again TPO's own comparable and assessee sought to exclude this company from the list of comparables on the ground of non-comparable services i.e application implementation, management and development services. TPO rejected objections raised by the assessee by observing that software development, implementation and support services are various sub-segments of software development services only and require employment of software engineers and retained this company as a comparable for benchmarking international transactions. 48. However, perusal of the annual report of this company, available....
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.... of Wipro, available at page 1545 of Paper Book-III, shows that Wipro is providing software related services to its sole customer Citi Group as per Master Service Agreement (MSA) dated 21.01.2009. MSA provides for the delivery of at least $ 500 million in service revenues over the period of the contract. So, the Wipro is into controlled transactions with its sole customer. Furthermore, when we examine business transactions between Wipro and Citi Group companies in the light of the MSA, such transactions are deemed international transactions u/s 92B (2) of the Act. 38. Hon'ble Delhi High Court in case of Cashedge India Pvt. Ltd. (supra) confirmed the findings returned by coordinate Bench of the Tribunal directing to exclude Wipro as a comparable vis-à- vis Cashedge which is also into business of software development by returning following findings :- "6. ......as far as the Wipro Technology Services goes, it was part of the Citi Group and was during the financial year in question acquired on 21.01.2009 by the Wipro Ltd. as a subsidiary. As a part of the arrangement, the existing contracts pertaining to the work of the Citi Group continued to be with the ....
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....is proved and provisions contained u/s 92B(2) are attracted. So, there is no cogent factual and legal reason to depart from the decision rendered by the coordinate Bench of the Tribunal in Open Solutions Software Services Pvt. Ltd. (supra). 43. So, when the entire Revenue is received by the taxpayer by virtue of MSA entered into with Citi Group services which is also its subsidiary, the benefit accruing to this company on the basis of brand name of Wipro cannot be denied. So, in these circumstances, we find Wipro as unsuitable comparable for benchmarking the international transactions and exclude the same from the final set of comparables." 47. Since Wipro Technology Services Ltd. is engaged in software related support services, primarily information technology software solutions/maintenance and technology infrastructure support services to Citi group entities globally, therefore, this company, in our opinion, cannot be considered as a comparable. Further, the Hon'ble Delhi High Court in the case of Agnity India Technologies Pvt. Ltd. vide ITA No.447/2018, order dated 13.04.2018, has observed as under:- "The question of law urged by the Revenue with respect....
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....nd IT services. However, no segmental information is available. 56. Comparability of E-Zest was examined by the coordinate Bench of the Tribunal in case of ST Microelectronics Private Ltd. (formerly Genesis Microchip (India) Pvt. Ltd. in IT (TP) A.No.949/Bang./2011 order dated 06.01.2017, available at page 2459 of Paper Book - V vis-à-vis ST Microelectronics Private Ltd., a software development service provider and ordered to exclude the same by returning following findings :- "14.4 We have heard the rival submissions and perused and carefully considered the material on record. It is seen from the record that the TPO has included this company in the list of comparables only on the basis of the statement made by the company in its reply to the notice under section 133(6) of the Act. It appears that the TPO has not examined the services rendered by the company to give a finding whether the services performed by this company are similar to the software development services performed by the assessee. From the details on record, we find that while the assessee is into software development services, this company i.e. e-Zest Solutions Ltd., is rendering product de....
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....ployee cost ratio for the impugned assessment year is at 13.74% and, therefore, it fails the employee cost filter. We find this company was excluded as a comparable by the Kolkata Bench of the Tribunal in the case of Philips India Limited vs DCIT vide ITA No.8963 & 539/Kol/2016, order dated 15th December, 2017 for assessment year 2011-12. Similarly, Madras Bench of the Tribunal in the case of M/s Symantec Software & Services India Pvt. Ltd. (supra) has also directed to exclude this company from the list of comparables on account of functional dissimilarity. The various other decisions relied on by ld. counsel also supports his case. In view of the above discussion, we hold that Acropetal Technologies Ltd. cannot be considered as a comparable and, therefore, the same has to be excluded from the list of comparables. We hold and direct accordingly. 53. So far as E-Infochips is concerned, we find this company operates as a fullfledged risk taking entrepreneur and has revenue from software services, hardware and consultancy charges. It bears entrepreneurial risks and other business risks whereas the assessee company operates at minimal risk as the 100% services are provided to AEs on....
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..... Having heard the learned counsel for the parties, the Court find that the ITAT has assigned clear and cogent reasons that the above entities should be excluded from the list of comparables. The findings are factual and based on proper analysis and does not give rise to any substantial question of law" 55. The various other decisions relied on by the ld. counsel for the assessee also supports its case that this company has to be excluded from the list of comparables on account of non-availability of segmental report and huge expenditure incurred on account of Research & Development activities. In view of the above discussion, we hold that E-Infochips cannot be considered as a comparable. Accordingly, we direct the Assessing Officer/TPO to exclude the same from the list of comparables. 56. So far as Larsen & Toubro Infotech Ltd. (L&T) is concerned, we find this company operates as a full-fledged risk taking entrepreneur and has income from software development and services products. L&T earns significant revenue from on shore (53%) and offshore (47%) and it holds intangible assets such as software business right, capital work-in-progress amounting to Rs. 103.83 crore. The com....
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....ect to ICs as per specifications provided by the AE. It has not entered into any extraordinary activity during the year and does not own any brand or proprietary products. Further, no entrepreneurial or business risk has been undertaken by the assessee during the year. We further find that this company was excluded by the Tribunal from the list of comparables in assessee's own case for assessment year 2013-14 vide ITA No.4434/Del/2018 and for assessment year 2010-11 vide ITA No.609/Del/2015. We further find the Hon'ble Delhi High Court in the case of Alcatel-Licent India Ltd. (supra) has upheld the decision of the Tribunal in directing the TPO to exclude Persistent Systems Ltd. from the list of comparables. The various other decisions relied on by the ld. counsel for the assessee in the case law citations also supports its case. We, therefore, direct the Assessing Officer/TPO to exclude this company from the list of comparables on account of FAR differences. 58. So far as Persistent Systems and Solutions Ltd. is concerned, we find this company is functionally different since it provides support in software development, consultancy and systems integration services to Persiste....
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.... SARL, France and Mahasena Info Technologies India Pvt. Ltd. (formerly known as Sankhya Information Technologies India Pvt Ltd) is a leading Simulation and training company". Sankhya provides end to end simulation solutions which are customized to the end user and the company has developed customizable products for imparting training which can cater to any industry." 61. Further, this company has signed a Memorandum of Understanding with defense Public Sector company Bharat Electronics Limited to collaborate in the field of Simulation and virtual training and has also recorded a successful execution of its SILICON suite of products for the Indian Army. We further find the company owns various products such as i) Learning Management Products; ii) Training Management Products; iii) Simulator Products; iv) Knowledge based Content; v) Optimization Products; vi) Sage CRM Server 200; vii) Service Capture; viii) Tally 9 Gold Multi User; ix) Teamprise / Eclipse 3.0; x) Vstudio Team Ed (5 Users); xi) Adobe Nog Elixir with Media Kit; xii) Device Lock Software; and xiii) Log....
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....ed, Hyderabad (ITA No. 233 of 2014). Respectfully following these judicial precedents, we direct the TPO to exclude this company from the final set of comparables. " 63. This decision of the Tribunal has been upheld by the Hon'ble Delhi High Court in ITA No.515/Del/2017. In view of the above discussion, we hold that Sankhya Infotech Ltd. has to be excluded from the list of comparables. 64. So far as Sasken Communication Technologies Ltd. (Sasken) is concerned, this company operates as a full-fledged risk taking entrepreneur and has revenue from software services and software products. No segmental information is available and the company also holds inventory of 0.95 crore as on 31st March, 2011. The company continue to invest in R&D during the year in multi-media wireless and broadband and mobile value added services. The company bears entrepreneurial risk and other risks. However, the assessee company operates at minimal risk as the 100% services are provided to AEs and is remunerated on a cost plus basis. The assessee is mainly engaged in software development related to design, implementation and maintenance with respect to ICs and it does not own any brand or proprieta....
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....accepted as a comparable. We find the Tribunal in assessee's own case for assessment year 200910, has accepted this company as a comparable. On appeal by the Revenue, the Hon'ble High Court has upheld the order of the Tribunal. Further, the company is also selected as a comparable by the TPO for assessment year 2010-11. We, therefore, direct the A.O./TPO to include this company as a comparable. 69. So far as Thinksoft Global Services Ltd. is concerned, we find the TPO rejected the comparable on the ground that it is functionally dissimilar as it provides software validation and verification services which is part of software development services whereas the functions of the assessee are high in functional hierarchy. It is the argument of the ld. counsel for the assessee that the assessee is not engaged in high end activity and is a routine and intermediary as it provides software development and design services as per the specifications provided by the AE. Therefore, this company should be considered as a comparable. We find the Bangalore Bench of the Tribunal in the case of Finastra Software Solutions Ltd. vide IT(TP)A No.529/Bang/2016, has accepted this company as a compar....
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....far as ground of appeal No.3 is concerned, it is case of the ld. counsel for the assessee that bank charges, provision for doubtful debts and provision no longer required written back cannot be considered as non-operating expenditure/income while computing the operating margin of the assessee and comparable companies. 74. After hearing both the sides, we find the TPO held that bank charges are usually not separately reported by the company and are clubbed along with the interest charges and, hence, these are to be treated in the same manner as interest. Similarly, provision for bad debt being in the nature of unascertained liability, has to be treated as non-operating income. The DRP simply upheld the action of the Assessing Officer/TPO. It is the submission of the ld. counsel for the assessee that bank charges and interest can be separately computed. Relying on various decisions it is his submission that the lower authorities have not given any valid reason to negate the claim of the assessee. We find the facts are not coming out clearly from the orders of the TPO/DRP. We, therefore, remit this issue back to the file of the Assessing Officer/TPO with a direction to adjudicate t....
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.... amount of Rs. 3,84,651/- being expenditure on time based licences. AO treated the software time based licence expenses of Rs. 3,84,651/- as capital in nature and thereby disallowed the same. However, the AO allowed the assessee to depreciation thereon @ 60% which is Rs. 2,30,791/- and added back the remaining amount of Rs. 1,53,860/- to the returned income. DRP also affirmed the decision rendered by AO. 56. Ld. AR for the assessee contended that since one time revenue expenditure has been incurred by the assessee the same cannot be deferred and relied upon the judgment of Hon'ble Delhi High Court in case of Director of Income-tax vs. Infrasoft Ltd. - (2013) 39 taxmann.com 88 (Delhi). However, on the other hand, ld. DR for the revenue by relying upon the order passed by AO/DRP contended that since 60% depreciation has already been given to the assessee, the contention of the assessee is not sustainable. 57. Assessee has brought on record that assessee has incurred an amount of Rs. 3,84,651/- for running the licence only and annual maintenance charges for operating, trouble shooting of the software and not for purchase/acquisition of the software and the period....
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....g as under:- "72. AO/DRP have treated expenditure of Rs. 13,84,084/- claimed by the taxpayer as expenditure on training of employees as capitalized in nature being of enduring benefit to the taxpayer. The ld. AR for the taxpayer contended that this issue has already been decided in favour of the taxpayer in its own case for AY 2009-10 (supra). Operative part thereof is extracted as under:- "60. Assessee debited an amount of Rs. 38,09,220/- in his profit & loss account on account of training expenses and claimed the same as revenue expenditure. However, AO being not satisfied with the explanation given by the assessee came to the conclusion that these expenses have been incurred for providing various training which is in the nature of giving enduring benefit to the assessee and treated the same as capital expenditure and then added to the income of the assessee. 61. However, ld. AR for the assessee contended that the payment of training expenses is in the nature of revenue expenses and relied upon the decision rendered by Hon'ble High Court of Delhi in judgment cited as Commissioner of Income- tax-II vs. Munjal Showa Ltd. - (2010) 329 ITR 449 (Delhi). ....
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.... the taxpayer during the course of proceedings by relying upon the decision rendered by Hon'ble Supreme Court in Goetze India Limited - (2006) 284 ITR 323 (SC). However, the identical issue has already been decided by remanding the case back to the AO after providing an opportunity of being heard to the taxpayer in taxpayer's own case for AY 200910 by returning following findings :- "64. Assessee claimed depreciation on goodwill amounting to Rs. 1,38,93,062/- during the course of assessment proceedings by relying upon decisions rendered by Hon'ble Supreme Court in case of Smifs Securities Ltd. - (TS-639-SC-2012) (Supreme Court) but the AO remained silent on this issue. 65. However, DRP by applying the decisions rendered by Hon'ble Supreme Court in Goetze (India) Ltd. - (2006) 284 ITR 323 (SC) rejected the claim of the assessee on the ground that assessee did not claim such depreciation on goodwill in its return of income. However, it has not been disputed by both the ld. Representatives of the parties that the judgment cited as Goetze (India) Ltd. as relied upon by DRP is not applicable to the facts and circumstances of the case and when the issue ....