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2020 (3) TMI 332 - AT - Income TaxRejection of books of accounts - estimation of income - Computation on presumptive basis of 10% U/s.44BBB(1) or alternately @10.98% under normal provisions of the Act - HELD THAT - As decided in own case 2017 (9) TMI 1164 - GUJARAT HIGH COURT it is held that the action of Ld AO in rejecting books of accounts of the Appellant and estimating income is not sustainable. Further hold that the Appellant has rightly and legitimately offered income u/s 44BBB(2) of the Act. I further reject the action of Ld AO in making alternative addition u/s 44BBB(1) of the Act. Addition made by the AO by rejecting the books of accounts and estimating the income u/s 44BBB(1) of the Act as well as on the basis of comparable companies are hereby deleted. TPA - most appropriate method for determining the arm's length price and as to whether the transaction between APL and JPL and Shandong Head Office is a comparable uncontrolled transaction - HELD THAT - From the concurrent findings of fact recorded by the Tribunal and the Commissioner (Appeals) based on the material on record, it is apparent that the terms of functions performed, assets employed, risk undertaken, the price charged in comparable uncontrolled transactions entered into by virtue of the contract between APL and JPL and Shandong HO vis- -vis the contract awarded to Shandong PO by Shandong HO, are identical. It is based upon such concurrent findings of fact recorded by it after appreciating the material on record that the Tribunal has arrived at the conclusion that the arm s length price of the transaction in question is required to be computed by adopting the CUP method. Therefore, unless there is any perversity in the findings of fact recorded by the Tribunal upon appreciation of the evidence on record, no question of law can be said to arise from the impugned order. The learned senior standing counsel for the appellant is not in a position to point out any perversity in the concurrent findings of fact recorded by the Tribunal after appreciating the evidence on record. It is not the case of the revenue that any irrelevant material has been taken into consideration by the Tribunal or that any relevant material has been ignored, nor has any material to the contrary been pointed out to the court to dislodge the findings of fact recorded by the Tribunal. Moreover, a perusal of the proposed questions shows that the impugned order has not been challenged on the ground of perversity. In the light of the above discussion, the conclusion arrived at by the Tribunal being based upon findings of fact recorded after appreciating the material on record, in the absence of any perversity being pointed out in the findings of fact recorded by the Tribunal. - Decided against revenue
Issues Involved:
1. Rejection of books of account by the Assessing Officer (AO). 2. Estimation of income on a presumptive basis by the AO. 3. Selection of Comparable Uncontrolled Price (CUP) method over Transactional Net Margin Method (TNMM) for benchmarking. 4. Functional comparability of transactions between Shandong HO and Shandong PE with those between Adani Power Limited/Jhajjar Power Limited and Shandong HO. 5. Selection of functionally incomparable comparables by the Transfer Pricing Officer (TPO). Detailed Analysis: 1. Rejection of Books of Account by the Assessing Officer: The AO rejected the books of account of the assessee company, citing unreliability of the profit computed. However, the CIT(A) and the ITAT held that the rejection was incorrect. The CIT(A) relied on previous judgments, including those of the Hon’ble Gujarat High Court and the ITAT, which confirmed that the books of account maintained by the assessee were in accordance with Section 44BBB(2) of the Act. The CIT(A) noted that the AO had not brought any new evidence to demonstrate that the facts for the current assessment year were different from those in previous years. The CIT(A) emphasized that the assessee had maintained proper books of account, which were audited, and followed the percentage completion method as per Accounting Standard 7 (AS-7). The ITAT upheld these findings, dismissing the Revenue's ground of appeal. 2. Estimation of Income on a Presumptive Basis: The AO estimated the income on a presumptive basis at 10% under Section 44BBB(1) or alternately at 10.98% under normal provisions. The CIT(A) rejected this estimation, stating that the assessee had opted for assessment under Section 44BBB(2), which allows for lower profits if proper books of account are maintained and audited. The CIT(A) reiterated that the AO's approach was not justified, as the assessee had met all conditions prescribed under Section 44BBB(2). The ITAT agreed with the CIT(A), noting that the AO had not found any major defects in the accounts and that the percentage completion method used by the assessee was appropriate. 3. Selection of CUP Method Over TNMM: The CIT(A) held that the CUP method was a better method for benchmarking the transactions, as opposed to the TNMM adopted by the TPO. The CIT(A) found that the transactions between Adani Power Limited/Jhajjar Power Limited and Shandong HO were functionally comparable to those between Shandong HO and Shandong PE. The ITAT upheld this decision, noting that the CUP method was more appropriate given the availability of comparable uncontrolled transactions. The ITAT emphasized that the CUP method provided a more reliable measure of the arm's length price. 4. Functional Comparability of Transactions: The CIT(A) determined that the transactions between Adani Power Limited/Jhajjar Power Limited and Shandong HO were proper comparables for the transactions between Shandong HO and Shandong PE. The CIT(A) noted that the AO had failed to appreciate the functional similarities between these transactions. The ITAT supported this view, stating that there was no difference in the terms of functions performed, assets employed, and risks undertaken between the comparable transactions. The ITAT highlighted that the price charged in the transactions was consistent, further validating the use of the CUP method. 5. Selection of Functionally Incomparable Comparables by the TPO: The CIT(A) criticized the TPO for selecting functionally incomparable transactions for benchmarking. The CIT(A) pointed out various shortcomings in the application of filters and the selection of comparables. The ITAT agreed, noting that the comparables selected by the TPO were not functionally similar to the assessee's transactions. The ITAT emphasized that the selection of appropriate comparables is crucial for accurate transfer pricing analysis and upheld the CIT(A)'s decision to delete the transfer pricing addition. Conclusion: The ITAT dismissed all three appeals filed by the Revenue, upholding the CIT(A)'s orders. The ITAT confirmed that the rejection of books of account and the estimation of income on a presumptive basis by the AO were not justified. The ITAT also agreed with the CIT(A) that the CUP method was more appropriate for benchmarking the transactions and that the comparables selected by the TPO were functionally incomparable. The judgments of the CIT(A) were based on consistent judicial precedents, including those of the Hon’ble Gujarat High Court and the ITAT, in the assessee's own case.
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