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TMI Blog2011 (4) TMI 124X X X X Extracts X X X X X X X X Extracts X X X X ..... iding the same afresh after examining the additional evidence as well as explanation offered by the assessee while rebutting the same Regarding determination of arm's length price - Since this issue is also closely connected to the main issue regarding determination of arm's length price - Decided in the favour of the assessee by way of remand - IT APPEAL NO. 3688 (DELHI) OF 2009 - - - Dated:- 8-4-2011 - G.E. VEERABHADRAPPA, C.L. SETHI, JJ. Rajan Vohra and Ms. Preeti Goel for the Appellant. Ashok Pandey for the Respondent. ORDER C.L. Sethi, Judicial Member. The assessee is in appeal against the order dated 16-3-2009 passed by the learned Commissioner of Income-tax (Appeals) in the matter of an assessment made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ermined by the TPO in respect of the 8 comparables was higher than the operating profits shown by the assessee, and so, he finally suggested an adjustment of Rs. 3,28,65,205 to the price shown by the assessee in respect of international transactions entered into with associated enterprises. This adjustment of Rs. 3,28,65,304 was determined after rectifying a clerical/arithmetic mistake committed by the TPO in his earlier order. 5. In the course of hearing of this appeal, the assessee has submitted an application for admission of additional evidences by stating and contending as under : "In the TP study, assessee had considered 12 comparable companies and their profitability for multiple years. The Transfer Pricing Officer ("TPO") had r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... working out average of arm's length price, we pray that the same may be admitted as additional supporting evidence. We hope your Honour would take the above documents on record." 6. In support of the application for additional evidences, the learned counsel for the assessee contended that financial data of 3 comparable companies, which were not available at the time of assessment proceedings before the Assessing Officer/TPO as well as before the learned CIT(A), are now available in public domain. He further submitted that these additional evidences are vital and necessary to re-work the arm's length price of international transactions. The learned counsel for the assessee further pointed out that these comparables were included in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 comparables were already cited by the assessee in the transfer pricing study submitted by it to the TPO and the assessee is not citing any new comparable by way of additional evidence, and since the financial data of these 3 companies already relied upon by the assessee before the TPO were not available in public domain at the time of making assessment or TPO's report, and since we are of the view that financial data of these three companies are necessary to determine the arm's length price properly and justifiably, we are inclined to allow the assessee to file these additional evidences so that the matter may be decided in its right and correct perspective after considering proper comparables. In this connection, we may rely upon the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng assessment and they were not examined on their merit, we find it fit and proper to restore the matter regarding determination of arm's length price of the international transactions entered into by the assessee with AE to the file of the Assessing Officer/TPO for fresh adjudication after examining the additional evidences as well as any other evidences which may assessee furnish before the Assessing Officer or TPO or any other evidences that the Assessing Officer/TPO may brought on record and same should be decided in accordance with the provisions of law. The matter regarding determination of arm's length price shall remain wide open for the Assessing Officer/TPO's decision as per law. The Assessing Officer/TPO shall provide reasonable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee and, therefore, there was no question of mark-up of 8 per cent being charged on expenses reimbursed. Since this issue is also closely connected to the main issue regarding determination of arm's length price, we restore it back to the file of the Assessing Officer/TPO for their fresh decision after considering the assessee's contention and the facts of the case as per law. 13. In other words, all the issues or points connected to the determination of the arm's length price of international transactions entered into by the assessee with its associated enterprises shall be freshly decided by the Assessing Officer/TPO after hearing the assessee and considering all the evidences and facts of the case as per law. 14. Ground Nos. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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