Dr. O.K. Narayanan, Vice-President - This appeal is filed by the assessee. The relevant assessment year is 2007-08. The assessee is a US company.
2. This appeal is directed against the assessment order passed under Section 143(3) r/w Section 144C(13) of the Income-tax Act, 1961.
3. The assessee, which is a foreign company, registered in USA, held 91% of the shares in the capital of M/s Visteon Powertrain Control Systems India Pvt. Ltd. (VPCSI). M/s VPCSI is a company incorporated under the provisions of Indian Companies Act, 1956. It is an Indian company.
4. The assessee-company had transferred its entire shareholding of 91% in VPCSI on March 30, 2007. The shares were sold to M/s Visteon International Holdings Singapore Pte Ltd. (VIHS) and to M/s Visteon International Holdings Mauritius Ltd. (VIHM). The face value of the shares sold by the assessee is Rs. 10 per share. The assessee-company transferred the shares at Rs. 10.32 per share. The assessee had obtained a valuation certificate issued by M/s Deloitte Haskins & Sells, Chartered Accountants. The valuation of the shares has been made in the light of the guidelines issued by the office of Controller of Capital Issues, India. [The said office has since been abolished and its functions have been taken over by Securities Exchange Board of India (SEBI)]. The guidelines were issued by the erstwhile Controller of Capital Issues, as required under Foreign Exchange Management Regulations, 2000. The value determined by the independent valuer has been taken as a comparable price under Comparable Uncontrolled Price (CUP) method. The CUP method is one of the methods prescribed for the purpose of computing the Arm's Length Price (ALP) under Section 92C of the Income-tax Act, 1961. The price was computed taking the weighted average of Net Asset Value (NAV) determined at Rs. 15.05 per share and the Profit Earning Capacity Value (PECV) determined at Rs. 9.23 per share. The weighted average value was further discounted by 15%. The value has been discounted for the reason that the shares of the company are unlisted.
5. The sale of shares being in the nature of transaction entered into between Associate Enterprises (AEs), the question of fixing the ALP in the matter of selling the shares was referred under Section 92CA(1), to the Transfer Pricing Officer (TPO). The TPO, after examining the facts of the case in a very detailed manner, held that the transfer price of Rs. 10.32 determined by the assessee cannot be accepted for the reason that the method of averaging PECV and NAV is not an accepted method of share valuation and the guidelines issued by the erstwhile Controller of Capital issues are no more relevant in the matter of valuing the shares and so particularly, those guidelines were issued in a different context to ensure a minimum value that the sale of a share ought have fetched.
6. The TPO, on the other hand, applied Discounted Cash Flow (DCF) method to measure the value of shares sold by the assessee. On the basis of computation made by the TPO applying DCF method, the price has come to Rs. 36.31 per share.
7. On receipt of the order of TPO, fixing the ALP at Rs. 36.31 per share, as against the price of Rs. 10.32 determined by the assessee-company, draft assessment order was framed. The Assessing Officer applied the ALP of Rs. 36.31 per share, determined by the TPO, calculated under DCF method. As the assessee had serious objections against the draft assessment order proposed by the assessing authority, the assessee went before the Dispute Resolution Panel (DRP) at Chennai, under Section 144C of the Income-tax Act, 1961. The DRP, in its turn, considered the case in a very detailed manner and finally dismissed the reference made by the assessee. Thereafter, the Assessing Officer crystallized the orders of TPO and the DRP in the matter of determining the ALP by passing a final assessment order under Section 143(3) of the Income-tax Act, 1961.
8. The assessee is aggrieved and therefore, in appeal before us.
9. The assessee has raised the following grounds in the present transfer pricing case, placed before us. They are as follows:—
'(1) The learned Assessing Officer ("AO") and the learned Transfer Pricing Officer ("TPO") have grossly erred in law and facts of the case in determining the arm's length price ('ALP') of the international transaction of the Appellant with respect to full value of consideration accruing to the assessee in terms of section 48 read with section 92(C)(4) of the Income Tax Act.
(2) That on the facts and circumstances of the case, the learned AO and the learned TPO have erred in rejecting the Transfer Pricing ('TP') documentation without assigining cogent or concrete reasons and not appreciating the contentions, arguments, and evidentiary data put forward by the Appellant during the course of the proceedings before them.
(3) That the learned AO and the learned TPO have grossly erred in making adjustment to the international transaction of sale of shares by Visteon International Holdings Inc. (hereinafter referred to as "VIHI") in Visteon Powertrain Control Systems India Private Limited (hereinafter referred to as "VPCSI").
(4) That the learned AO and the learned TPO have grossly erred in concluding that the valuation of shares certified by an independent valuer based on the guidelines issued by under the erstwhile Comptroller of Capital Issues (hereinafter referred to as "CCI") was not appropriate for the purposes of Transfer Pricing Regulations (hereinafter referred to as the "TPR")
(4.1) The learned AO and the learned TPO have grossly erred in not accepting the valuation of an independent valuer in the absence of guidelines on valuation for the purpose of determining the Arm's Length Price (hereinafter referred to as "ALP") for the valuation of shares in the Indian Transfer Pricing Regulations (hereinafter referred to as "TPR");
(4.2) That the learned AO and the learned TPO have grossly erred in not appreciating the fact that in view of the prevailing laws in force at the time the transaction was entered into, the average of the Net Asset Value (hereinafter referred to as "NAV") method and the Profit Earning Capacity Value (hereinafter referred to as "PECV") method per the erstwhile CCI guidelines was most appropriate method.
(4.3) That the learned AO and the learned TPO ought to have observed that the NAV method of valuation of shares, per the CCI guidelines, is an acceptable method under several enactments such as the Income Tax Act, 1961 (hereinafter referred to as the "Act"), Wealth Tax Act, 1957 (hereinafter referred to as the "WT Act") etc. and also that the same has been accorded recognition as an appropriate method by the Honourable Supreme Court in the case of Hindustan Lever Union v. Hindustan Lever Ltd. [1994] 2 SCL 157.
(4.4) The learned AO and the learned TPO have grossly erred in not appreciating the fact that CCI Guidelines are based on past performance and the value determined, and the method of valuation and hence cannot be rejected as inappropriate.
(5) The learned AO and the learned TPO have grossly erred in arbitrarily choosing a different method or a combination of methods such as Discounted Cash Flow (DCF) method and Market Based approach for valuation of shares as the most appropriate method as these methods are most suited to listed companies and not to unlisted company like the appellant.
(5.1) That learned AO and the learned TPO ought to have observed that the DCF method of valuation adopted for determining the transfer value has been made effective only from April 21, 2010 vide notification FEMA 205 / 2010 and therefore at the time of the transaction the only available guideline was the CCI method which prescribed NAV method for valuation of shares of unlisted companies.
(5.2) That the learned AO and the learned TPO have grossly erred in not appreciating that the above stated modification should be considered as a substantive legislature and only used prospectively and should not be applied arbitrarily to some transaction happened in the past;
(5.3) That the learned AO and the learned TPO have erred in not considering the fact that valuation per DCF method is particularly sensitive to assumptions like perpetuity growth rates, future cash flows and discount rates.
(5.4) Notwithstanding the aforementioned grievances, the learned AO and the learned TPO have erred making certain inappropriate assumptions relating to revenue, expenses and the weighted average cost of capital while adopting DCF method for valuation of shares.
(5.5) The learned AO and the learned TPO have erred in being inconsistent in application of the assumptions in the TP order.
(6) That the learned AO and the learned TPO have erred in computation of interest under Section 234A of the Income-tax Act, 1961 even though the company has filed its return of income well within the due date under Section 139(1) of the Income-tax Act, 1961.'
10. In addition to the above grounds of appeal, the assessee-company has also raised additional grounds supported by an explanation in the form of Memorandum of Additional Objections.
11. The Memorandum of Additional Objections filed by the assessee-company are reproduced below:—
"The Appellant is an investment company and had made investments in Visteon Powertrain Control Systems India Private Limited (VPSCI). During the previous year relevant to assessment year 2007-08, the Appellant transferred its shareholding in VPSCI to and in favour of Visteon International Holding Maurius Ltd. and Visteon International Holding Singapore Limited. For the purpose of benchmarking the share transfer from Indian Transfer Pricing perspective, the Appellant had adopted/undertaken valuation as per CCI Guidelines i.e. combination of Net Asset Value (NAV) and Profit Earning Capacity Value (PECV) Methods and concluded in its Transfer Pricing documentation that the international transaction of share transfer was at arm's length.
The Assessing Officer had referred the international transactions to the Transfer Princing Officer ("TPO") for determination of arm's length price of share transfer. The TPO while determining the arm's length price of the international transaction viz., share transfer by the Appellant in VPSCI held that valuation should be done as per Discounted Cash Flow (DCF) Method and has consequently made an adjustment.
Before this Hon'ble Tribunal, among other grounds of appeal, the Appellant has challenged that DCF method is not an appropriate method. However, it has inadvertently omitted to raise specific grounds in relation to absence of approval by Commissioner of Income Tax, inaccuracies in the DCF method employed by the TPO and alternative ground on applicability of yield method for determination of ALP.
These are purely legal grounds which do not require investigation of additional facts. It is therefore prayed that these additional grounds may be admitted and decided on merits. The assessee relies on the following decisions for admission of additional objections:
Associated Stone Industries (Kotah) Ltd. v. CIT [1997] 224 ITR 560 (SC)
CIT v. M.K. Yashwant Singh [1998] 231 ITR 145 (Delhi)
National Thermal Power Co. Ltd. v. CIT [1998] 229 ITR 383 (SC)"
12. In the light of the above explanation, the additional grounds raised by the assessee-company are as follows:
"(1) The learned Assessing Officer (AO) and the learned Transfer Pricing Officer (TPO) failed to appreciate that since they did not obtain specific approval from the Commissioner of Income Tax prior to determination of arm's length price (ALP) of share transfer the determination of ALP by them was without jurisdiction.
(2) Without prejudice to the above grounds and our ground that valuation as per CCI guidelines is more appropriate than DCF method, the learned AO and the learned TPO ought to have appreciated that yield method is the most appropriate method for valuation of shares.
(3) Without prejudice to our contention that DCF method is not an appropriate method for determination of ALP of share transfer, the following assumptions of the AO/TPO while adopting DCF method are erroneous:
(3.1) The learned AO and the learned TPO have grossly erred in adopting an arbitrary weighted average cost of capital ("WACC") percentage of 14.5 per cent. The learned AO/ TPO ought to have adopted WACC at 16.34 per cent which is based on the industry peers data and salient assumptions.
(3.2) The learned AO and the learned TPO have gross erred in assuming illiquidity discount of 20 percent as the same ought to have been considered at 25 per cent based on the global literature on valuation of private companies.
(3.3) The learned AO and the learned TPO ought to have straightaway forecasted the profit before tax (PBT) for the purpose of DCF valuation instead of assuming each item of income and expenditure to reduce subjectivity in the assumptions.
(3.4) The learned TPO and the learned AO erred in not being consistent with the assumptions postulated in their order with respect to the working capital changes and the WACC computation.
(3.5) The learned AO and the learned TPO in valuing the shares as per the DCF method have grossly erred considering the revenues of the service segment without appreciating that the said segment was hived off in the financial year ended March 31, 2007 and therefore its revenues cannot be taken into account in forecasting the future inflows.
(4) The learned AO erred in levying interest under section 234B of the Act without appreciating that the Appellant being a non-resident it is not obligated to pay advance tax."
13. As the additional grounds raised by the assessee-company are legal in nature, and also further verification of facts are not required, the additional grounds are treated as part of the grounds raised in the present appeal, placed before us. The additional grounds are thus admitted.
14. Shri S.E. Dastul, the learned senior counsel, appeared for the assessee and argued the case along with Shri Neeraj Sheth, the Advocate on record. Shri Vasantha Kumar, the learned Commissioner of Income Tax, appeared for the Revenue and argued the case equally in detail.
15. Shri S.E. Dastul, the learned senior counsel, at the first instance, argued on the applicability of Section 92C itself. The learned senior counsel explained that Section 92C has provided different methods to compute Arm's Length Price. Those methods are provided under six categories, running from (a) to (f). The first one, Comparable Uncontrolled Price Method (CUP) is not applicable to the present case as no comparable case is available similar to the share transaction made by the assessee in the previous year relevant to the assessment year under appeal. Question of Resale Price Method (RPM) does not apply as there is no such a situation, where shares are sold wholesale or retail. Cost Plus Method (CPM) is also not applicable as no cost can be ascertained in the case of shares of a company. It is also equally not possible to apply Profit Split Method (PSM). The Transactional Net Margin Method (TNMM) is also not applicable as there is no concept of net margin in the sale of shares. The learned senior counsel explained that the only remaining category available in the present case is "such other method as may be prescribed by the Board".
16. The learned senior counsel explained that as far as impugned assessment year is concerned, the Board has not prescribed "any such method" to value the shares transferred in similar circumstances. He, therefore, argued that the computation provisions with reference to ALP have failed and as such, Section 92C cannot be applied to assessee's case. The learned senior counsel has relied on the decision of Hon'ble Supreme Court in the case of CIT v. B.C. Srinivasa Setty [1981] 128 ITR 294/5 Taxman 1, wherein the Hon'ble Supreme Court has held as under:—
"The charging section and the computation provisions together constitute an integrated code. When there is a case to which the computation provisions cannot apply at all, it is evident that such a case was not intended to fall within the charging section."
17. The learned senior counsel, therefore, contended that the computation provisions provided under Section 92C cannot be applied in the present case and as such, Revenue is not justified in holding that the method of valuation adopted by the assessee-company is unacceptable. On the other hand, the learned senior counsel submitted that the transfer price of Rs. 10.32 per share, computed by the assessee-company should be accepted.
18. The learned senior counsel further contended that the Hon'ble Supreme Court has laid down the law relating to valuation of privately held shares. In such context, the Court has held that "Yield Method" is the most appropriate method for valuing the shares of closely held companies. The learned senior counsel referred to the decision of the Hon'ble Supreme Court in the case of CWT v. Mahadeo Jalan [1972] 86 ITR 621. In the said decision, the Hon'ble Supreme Court has held that leaving aside any distress sales, the factors, which are likely to determine the fixation of value of a share on any particular date or at any particular time are, firstly, the profit-earning capacity of the company on a reasonable commercial basis; secondly, its capacity to maintain those profits/a reasonable return. The learned senior counsel further referred to the decision of Hon'ble Supreme Court in the case of CGT v. Smt. Kusumben D. Mahadevia [1980] 122 ITR 38/3 Taxman 16. In the said decision, the Hon'ble Supreme Court has referred to its earlier decision in the case of Mahadeo Jalan and observed that the judgment in Mahadeo Jalan's case rendered under the Wealth-tax Act, clearly laid down, inter alia, that the proper method of valuation of shares held in a private limited company, that was a going concern, would be the "Yield Method" and not the "break-up method". The Court further observed that the "profit-earning method" takes into account the profits which the company has been making and should be capable of making and the valuation is based on the average maintainable profits subject to necessary adjustments. The learned senior counsel again brought to our notice the judgment of Hon'ble Supreme Court in the case ofHindustan Lever Employees' Union v. Hindustan Lever Ltd. [1994] 2 SCL 157. The learned senior counsel has also relied on the judgment of Hon'ble Calcutta High Court in the case of CWT v. Balbhadradas Bangur [1984] 148 ITR 149/[1983] 14 Taxman 177.
19. In the light of the above judicial pronouncements, the learned senior counsel contended that in a case where the computation provisions provided in Section 92C fail, the most appropriate method for valuation of shares is "Yield Method".
20. In the present case, the learned senior counsel contended that the assessee has valued the shares not confining to "Yield Method" alone; but further went to enlarge the computation of the ALP by adopting the integrated method suggested in the guidelines issued by the erstwhile Controller of Capital Issues. Thereby the company has not only considered the yield of the assessee-company but also the net asset value. The yield of the assessee-company, as certified by an independent Chartered Accountant, is Rs. 9.23 per share. The net asset value is Rs. 15.05 per share. The average of the two works out to Rs. 12.14 per share. After providing for discounting at 15% (Rs. 1.82 per share), the assessee has determined the ALP at Rs. 10.32 per share. If the assessee had adopted only the yield method, the ALP would have been Rs. 9.23 as against Rs. 10.32 per share, adopted by the assessee.
21. The learned senior counsel further highlighted the alternative grounds raised by the assessee-company. He explained that the assessee-company has not furnished any model computation of the ALP under DCF method. When the TPO proposed to adopt DCF method to work out the ALP, the assessee was given an opportunity to provide its working of the DCF value. But, the assessee-company could not furnish such a computation before the TPO. When the matter was presented before the DRP, the assessee-company had sought an opportunity so that as an alternate course, the assessee-company itself could furnish the computation of ALP under DCF method. This prayer made by the assessee before the DRP was turned down on the ground that inspite of an opportunity given, assessee-company did not respond to the proposal made by the TPO by filing any such computation from its side. In the above circumstances, it is the case of the learned senior counsel that the assessee may be given an opportunity of presenting its computation under DCF method to work out the ALP.
22. The learned senior counsel further explained that this prayer of the assessee has to be allowed by the Tribunal for the reason that the computation of ALP for the subsequent assessment year 2008-09 has been made under DCF method and the same has been accepted by the assessee-company as well as the TPO and DRP. In the DCF computation proposed by the TPO, the assessee had raised certain objections under six heads. The TPO herself has accepted four of the objections and accordingly modified her proposal. The remaining two objections have been accepted by the DRP and as such, as the final picture emerges out, the Revenue has accepted all the objections raised by the assessee on the DCF value computed by the TPO. This has been accepted by the assessee-company. Therefore, when the ALP for the subsequent assessment year 2008-09 has been determined under the method of DCF, it is always desirable that the same method may be adopted for the impugned assessment year 2007-08, subject to accepting the objections of the assessee-company. Therefore, in these circumstances, there is no justification for not giving an opportunity to the assessee-company to provide the working of ALP under DCF method just for the reason that the work-out was not furnished by the assessee in the first instance, before the TPO.
23. Apart from the TP issue, another ground raised by the assessee-company is regarding the levy of interest under Section 234B of the Income-tax Act, 1961. The learned senior counsel explained that in the present case, it was the duty of the Indian company to deduct tax at the time of sale of shares and therefore, the assessee had no obligation to pay advance tax and in such circumstances, interest under Section 234B cannot be levied on the assessee. The learned senior counsel has relied on the judgment of the Hon'ble Delhi High Court in the case of DIT v. Jacabs Civil Incorporated [2011] 330 ITR 578/[2010] 194 Taxman 495.
24. Shri Vasantha Kumar, learned Commissioner of Income Tax, appearing for the Revenue, on the other hand, explained that the "Yield Method" is not a popular method used by companies in the present scenario. Under the Yield Method, the value is computed after considering the return on capital employed by the assessee. This method is usually applied where the assessee has an established fast-track record. But, this method fails to capture the future capital expenditure or working capital needs and other vital aspects of the business carried on by the assessee.
25. The learned Commissioner of Income Tax contended that the argument of the learned senior counsel regarding the non-applicability of Section 92C is not tenable in law. The learned Commissioner of Income Tax relied on a recent order of ITAT, Chennai, "C" Bench, rendered in the case of Ascendas (India) (P). Ltd. v. Dy. CIT passed in ITA No. 1736/Mds/2011 on 2nd January, 2013. The argument that the Board has not prescribed any other method for computing the ALP, was considered by the Tribunal in the said case in a detailed manner. He submitted that that the Tribunal has held that in finding the most appropriate method, it is not that modern valuation methods fitting the type of underlying service or commodities have to be ignored. Endeavour is only to arrive at a value which would give a comparable uncontrolled price for the shares sold. Therefore, any acceptable method may be applied for computing the ALP in similar circumstances.
26. The learned Commissioner of Income Tax further explained that the Tribunal in the said order has also considered the relevance of DCF method in working out the ALP. The Tribunal has clearly stated that Discounted Cash Flow method adopted by the TPO cannot be held to be not in accordance with Section 92C(1).
27. The learned Commissioner of Income Tax also submitted that the Tribunal has not agreed to the adoption of guidelines issued by CCI for working out the ALP of share transfer. The Tribunal has held that CCI guidelines were issued for a totally different purpose and could not be applied in the pricing methodology for fixing ALP.
28. The learned Commissioner of Income Tax, therefore, submitted that the ALP computed by the Transfer Pricing Officer and confirmed by the DRP is correct and be confirmed.
29. Regarding the alternate contention of the assessee that the assessee may be given an opportunity to present its computation of ALP under DCF method, before the TPO, the learned Commissioner of Income Tax submitted that it is too late and also the parameters laid down by the TPO to compute the DCF value for the impugned assessment year are correct and proper and there is no need of any review of the value arrived at by the TPO.
30. Regarding other grounds and supporting submissions, the learned Commissioner of Income Tax relied on the order of the DRP.
31. We heard both sides in detail.
32. Regarding the contention of the learned senior counsel that the computation provisions of Section 92C fail in the present case, would not be acceptable. This is because the jurisdictional Tribunal, ITAT, Chennai "C" Bench in the case of Ascendas (India) (P.) Ltd. (supra), has considered the issue in paragraphs 15, 16 and 17. They had considered the question whether to ignore all the methods prescribed under Section 92C(1). It has been held that it is not necessary to ignore the methods because these methods are not water-tight compartments and reflect the acceptability of permissible methods.
33. Regarding the argument of the learned senior counsel in connection with the acceptability of guidelines issued by erstwhile Controller of Capital Issues, we find that the Tribunal in the above stated order has held otherwise. In fact, the learned senior counsel has argued before us that as the guidelines for valuation of equity shares issued by Controller of Capital Issues, needs to be considered as guidelines issued by a public authority and therefore, in such circumstances, where nothing is available under Section 92C, such guidelines issued by the competent authority needs to be considered. The learned senior counsel has submitted before us that the guidelines were issued by Ministry of Finance, Department of Economic Affairs, on 13.7.1990 to deal with similar issue of valuation of shares. But, it is to be seen that the Tribunal in the decision of Ascendas (India) (P.) Ltd. (supra) has held in paragraph 18 of their order that the guidelines issued by CCI are not acceptable for the purpose of computation of ALP under Section 92C(1) of the Income-tax Act, 1961.
34. The Tribunal has also held in the above decision that DCF method is an accepted method of computing the ALP in the context of sale of shares.
35. Inspite of the above, there is a peculiar circumstance prevailing in the present case, which is very important for us to come to a finding. The assessee has not filed its own computation under DCF method before the TPO. When such an opportunity was prayed for by the assessee before the DRP, its prayer was declined for the reason that assessee had not filed such a computation before the TPO. But, at the same time, it is on record that for the succeeding assessment year 2008-09, the ALP has been worked out under DCF method and the objections raised by the assessee have been accepted either by TPO or by DRP and the issue has become final as far as both sides are concerned. Therefore, it is to be seen that when assessee's own case is settled on accepting the DCF method, we do not find any reason to go for another method for the impugned assessment year 2007-08. First of all, it is very important to keep the principle of consistency alive and active on factual matters. If the consistency rule is not applied in such circumstances, the logic of arguments may lead to opposite findings for different assessment years on same set of facts. Such a situation may also lead us to unending academic discussion.
36. Therefore, when the DCF method has been adopted to work out the ALP of share transfer in assessee's own case for assessment year 2008-09, the same method should be adopted for the impugned assessment year 2007-08 as well. This method is not imposed at the cost of anybody's prejudice. It is to be seen that the Revenue as well as the assessee have ultimately agreed to compute the ALP under DCF method. When that method is mutually agreed and applied for the succeeding assessment year 2008-09, taking a deviant approach and looking out for another method is nothing but pedantic.
37. Therefore, in the peculiar facts and circumstances governing the present case, we uphold the DCF method adopted by the TPO and the DRP. But, this is not an unconditional direction. The assessee is given an opportunity to present before the TPO its computation of ALP under DCF method. In the light of that computation to be presented by the assessee, the TPO is directed to re-visit the earlier computation of ALP. It is to be seen that the six objections raised by the assessee for the subsequent assessment year 2008-09 have been fairly accepted by the TPO and the DRP. Four of the objections have been accepted by the TPO and remaining two objections have been accepted by the DRP. For example, the liquidity discount assumed by the assessee has been accepted by the DRP for assessment year 2008-09. The TPO has accepted the WACC at 16.34% as assumed by the assessee-company, for assessment year 2008-09. Likewise, the rate of revenue growth of manufacturing, the rate of PBT based on industry trend, estimate of EBITDA, etc. all have to be accepted by the TPO as reflected in the final order for the assessment year 2008-09. In fact, the TPO has accepted the PBT restricted to 5% of the sales for assessment year 2008-09.
38. To summarise our direction, we state that the TPO shall re-visit the computation of ALP in the light of the ALP computation to be presented by the assessee under DCF method. While re-visiting so, the TPO shall follow the same pattern and parameters adopted for the subsequent assessment year 2008-09, as accepted by TPO and DRP.
39. When we have finally zeroed down to the DCF method, our observation and discussion on other arguments advanced by the assessee may look academic. For that inherent reason, we leave all those issues raised by the learned senior counsel, open.
40. We accept the contention of the assessee on the question of levy of interest under Section 234B in the light of the judgment of Hon'ble Delhi High Court in the case ofJacabs Civil Incorporated (supra). Accordingly, the assessing authority is directed to delete the levy of interest under Section 234B.
41. In the result, as far as the TPO matter is concerned, it is remitted back to the Assessing Officer for further transmission to the TPO and thereafter for the purpose of finally concluding the assessment in accordance with law.
42. In the result, this appeal filed by the assessee is partly allowed.