JUDGMENT :

K.R. SHRIRAM, J.

1. These appeals are filed by Assessee under Section 260A of the Income Tax Act 1961 (the Act) against the order dated 28th September 2022 passed by the Income Tax Appellate Tribunal (ITAT) for A.Y.2015-2016, 2016-2017 and 2017-2018. The issue is in respect of transfer pricing adjustments. The appeals were admitted on 11th April 2023 and in the three appeals, the following three questions of law were framed:-

“(i) Whether the Appellate Tribunal has erred in law in passing the order dated 28th September 2022 directly contrary to the view taken by the Appellate Tribunal in Appellant’s own case for earlier assessment years on identical facts and law without referring the issue to a Special (Full) Bench in the event that it wished to differ from the view taken by a co-ordinate Bench of the Tribunal ?

(ii) Whether the order dated 28th September 2022 passed by the Appellate Tribunal is bad in law as the same is passed ignoring the fact that on the very same transaction the department has accepted the methodology applied by the Appellate for benchmarking the transactions for transfer pricing purposes in seven (7) earlier years in view of inter-alia binding order of the Tribunal ?

(iii) Whether in the facts and in the circumstances of the case and in law the Tribunal erred in passing the impugned order dated 28th September 2022 purporting to rely on decision of Delhi High Court in the case of Magneti Marelli Power Train India P. Ltd. Vs. Deputy Commissioner of Income-tax which ex-facie did not support and was in fact contrary to the view set out in the impugned order ?”

2. Assessee is engaged in the business of manufacture and sale of Internal Combustion Engines, Spares, Components (including Bought-Outs) thereof & Generating Sets, service of Engines & Gensets / Generating Sets & Allied Equipment, etc. Assessee also has a 100% Export Oriented Unit at Pirangut which is engaged in manufacture and exports of internal combustion engines and its accessories and generating sets and accessories. The returns filed by Assessee was selected for scrutiny assessment by issuing statutory notices under section 143(2) and section 142(1) of the Act. During the years under consideration, Assessee had entered into various international transactions with its Associated Enterprise(s) in the course of its business. Assessee had paid royalty amounting to Rs.54,30,69,318/- for A.Y.2015-2016, Rs.46,99,15,361/- for A.Y.2016-2017 and Rs.51,26,51,778/- for A.Y. 2017-2018 to its Associated Enterprise, i.e., Cummins Inc. for providing technical know how and technical knowledge for manufacturing of engines to be sold to the customers.

For A.Y.-2015-16 Assessee filed its return of income on 30th November 2015 declaring total income of Rs.3,83,80,77,530/-. For A.Y. 2016-2017 Assessee filed its return of income on 30th November 2016 declaring total income of Rs.4,10,59,82,510/-, and for A.Y. 2017-2018 Assessee filed its return of income on 30th November 2017 declaring total income of Rs.4,98,57,18,870/-. The returns filed by Assessee were processed and accepted under the provisions of Section 143(1) of the Act.

3. Assessee’s case was taken up for scrutiny and statutory notices under Section 143(1) and Section 142(1) of the Act were issued during the course of assessment proceedings. Respondent No.1 made a reference under section 92CA (1) of the Act to the Transfer Pricing Officer, Pune (TPO) to determine the arm's length price (ALP) of the international transactions with the Associated Enterprise(s) of Assessee. The TPO issued a notice calling upon Assessee to produce relevant evidence supporting the computation of ALP in relation to the international transactions and specified domestic transactions. Assessee furnished all the relevant details / evidence as called for by the TPO. Assessee, in response to one of the points raised relating to royalty paid to Cummins (Inc.), explained that for the use of technology received from Cummins (Inc.) it ha