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TMI Blog2018 (12) TMI 679X X X X Extracts X X X X X X X X Extracts X X X X ..... s. As regards the question as to whether foreign exchange gains are to be included in operating profits or net, the issue is settled in favour of the assessee by a co-ordinate bench decision in the case of ITO vs. EDAG Engineers & Design India Limited [2015 (3) TMI 235 - ITAT DELHI] - We accept the plea, and remit the matter to the file of the Assessing Officer to verify whether, upon the above directions being implemented, margin will be less than 5%. If so, the entire ALP addition will stand deleted. In any other case, the ALP adjustment will stand modified suitably. Addition u/s.36(1)(va) r.w.s. 2(24(x) towards late payment of employees’ contribution to PF & ESIC - Held that:- while any delayed deposit of PF/ESI is to be disallowed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d concise grounds of appeal, in conformity with rule 8 of the Appellate Tribunal (Income Tax) Rules 1963, and prayed that the same be substituted for the original grounds of appeal prayer granted. 3. In the first ground of appeal, the assessee has raised the following grievance:- ( 1) The Ld. CIT(A) has erred, both in law and on the facts of the case, in confirming the upward adjustment of ₹ 47,11,618/- under section 92C of the Act. 4. So far as this grievance of the assessee is concerned, the relevant material facts are like this. The assessee is engaged in the business of providing software development services. The Assessing Officer had made an arm s length price adjustment in respect of services provided to as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee by a co-ordinate bench decision in the case of ITO vs. EDAG Engineers Design India Limited [(2014) 52 taxmann.com 398 (Del)] and Hon ble jurisdictional High Court s judgement in the case of CIT vs. Alps Chemicals Pvt. Ltd. (367 ITR 594). Quite clearly, therefore, the assessee deserves to succeed on both the issues. The foreign exchange gains are, in our opinion, required to be treated as part of operating profits and CGA-AVK Software Export Limited is required to be included in the comparables. We accept the plea, and remit the matter to the file of the Assessing Officer to verify whether, upon the above directions being implemented, margin will be less than 5%. If so, the entire ALP addition will stand deleted. In any other case, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of Rajasthan State Beverages Corporation Ltd (2017) 84 taxmann.com 185 (SC), it is only elementary that when a SLP is dismissed by a non-speaking order, it does not constitute a law declared by Hon ble Supreme Court, and as such, it is not binding under Article 141 of the Constitution of India. The authority, for this proposition, is contained in a series of judgments of Hon ble Supreme Court, including, inter alia, in the cases of State of Manipur vs. Thingujam Brojen Meetai, (1996) 9 SCC 29; Om Prakash Gargi v. State of Punjab, (1996) 11 SCC 399 and Sun Export Corpn v. Collector of Customs, AIR 1997 SC 2658. We, therefore, see no legally sustainable merit in the case of the assessee and, respectfully following the judgment of Hon bl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessing Officer to delete the impugned disallowance as well. 4. In effect thus while any delayed deposit of PF/ESI is to be disallowed, in terms of Hon ble Gujarat High Court s judgment in the case of Gujarat State Road Transport Corporation (supra), the question as to whether there is a delay or not may be decided by the Assessing Officer in the light of above observations by the coordinate bench. The assessee will get relief, if found admissible, on that basis 10. Following the co-ordinate bench decision, we remit this issue also to the file of the Assessing Officer for readjudication in the light of above observations which will apply mutatis mutandis here as well. Ordered, accordingly. 11. Ground no.2 is also allow ..... X X X X Extracts X X X X X X X X Extracts X X X X
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