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2018 (10) TMI 1781 - AT - Income TaxTP Adjustment - non conformity with the provisions of section 144C - assessee pointed out that in the present case, the final order of assessment does not incorporate the directions of the DRP and was a verbatim repetition of the draft order of assessment dated 23.02.2015 - HELD THAT - As relying on M/S SOFTWARE PARADIGMS INFOTECH PVT. LTD. VERSUS THE ASST. COMMISSIONER OF INCOME-TAX, CIRCLE-1 (2) , MYSORE 2018 (1) TMI 1550 - ITAT BANGALORE we quash the impugned order of assessment. Since the impugned order of assessment is quashed on the ground that the same is not in conformity with the provisions of section 144C of the Act and further on the ground that the time for passing the final order of assessment is barred by time, we are of the view that the other issues raised by the assessee in its grounds of appeal and the grounds raised by the revenue in its appeal does not require any consideration. As far as the decision cited by the learned DR in the case of H M Hennes Mauritz India (P) Ltd. 2012 (10) TMI 206 - ITAT DELHI is concerned, we find that in the said decision, the counsel for the Assessee has in para 3.8 of the said order prayed for setting aside the final order of assessment of AO to pass orders in accordance with the directions of the DRP. Thus it is a case of concession by the Assessee and not on the basis of arguments advanced by the parties. The law is well settled that a decision on concession of the counsel cannot be regarded as a precedent. Therefore the decision cited by the learned DR does not support the case of the revenue. - Decided in favour of assessee.
Issues Involved:
1. Validity of the final order of assessment. 2. Transfer pricing adjustments and comparables. 3. Computation of relief under section 10A. 4. Treatment of foreign exchange gains/losses. 5. Disallowances under section 10A for export proceeds received beyond six months and expenses incurred in foreign currency. Issue-wise Detailed Analysis: 1. Validity of the Final Order of Assessment: The primary issue raised by the assessee was that the final order of assessment dated 31.12.2015 did not incorporate the directions of the Dispute Resolution Panel (DRP) and was a verbatim repetition of the draft order dated 23.02.2015. The Tribunal found that the Assessing Officer (AO) was required by law to pass the final order in conformity with the DRP's directions within the prescribed time. The Tribunal quashed the final order of assessment, citing a clear violation of the mandatory provisions of section 144C of the Act, which requires the AO to pass the final order in line with the DRP's directions. The Tribunal relied on its earlier decision in the case of Software Paradigms Infotech (P.) Ltd. v. ACIT, where a similar order was quashed. 2. Transfer Pricing Adjustments and Comparables: The DRP upheld the application of the turnover filter and directed that companies with turnover beyond ?200 crore be excluded from the list of comparables. The DRP also directed that operating profit margins should consider foreign exchange gains/losses as operating in nature. The Tribunal did not delve into the specifics of transfer pricing adjustments due to the quashing of the final order of assessment. 3. Computation of Relief under Section 10A: The DRP directed the AO to compute relief under section 10A by considering export proceeds received within 12 months of the invoice date and excluding expenses incurred in foreign currency from both export turnover and total turnover. The Tribunal again did not address this issue specifically due to the quashing of the final order. 4. Treatment of Foreign Exchange Gains/Losses: The DRP held that foreign exchange gains/losses should be considered as operating in nature. The revenue contested this, arguing that the TPO had excluded this data from the comparables. The Tribunal did not provide a specific ruling on this matter due to the quashing of the final order. 5. Disallowances under Section 10A for Export Proceeds Received Beyond Six Months and Expenses Incurred in Foreign Currency: The AO had made disallowances under section 10A on the basis that certain export proceeds were received beyond six months from the invoice date and that expenses incurred in foreign currency were not reduced from the export turnover alone. The DRP directed the AO to consider export proceeds received within 12 months for relief and to exclude foreign currency expenses from both export and total turnover. The Tribunal did not address these disallowances specifically due to the quashing of the final order. Conclusion: The Tribunal quashed the final order of assessment due to non-compliance with the DRP's directions and the mandatory provisions of section 144C of the Act. Consequently, the Tribunal did not address the other issues raised by the assessee and the revenue. The appeal by the assessee was allowed, and the cross-objection and appeal by the revenue were dismissed.
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