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TMI Blog2011 (2) TMI 247X X X X Extracts X X X X X X X X Extracts X X X X ..... R.P. TOLANI, JUDICIAL MEMBER, B.C. MEENA, JJ. Manoj Nagrath for the Appellant. N.K. Chand for the Respondent. ORDER B.C. Meena, Accountant Member. This is an appeal filed by the assessee against the order of the Assessing Officer dated 20-10-2010 passed under section 143(3) read with section 144C of the Income-tax Act, 1961. 2. The assessee company was incorporated on 14-6-2005. The assessee company is engaged in the business of freight operators, forwarding agents, logistics providers, warehousing operators, shippers and shipping agents, handling and haulage, etc. The return was filed electronically on 15-11-2006 and a claim was made for carry forward of loss on account of unabsorbed depreciation of Rs. 8,30,084. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... failing to appreciate that the Appellant had reported positive results at gross levels, which were truly representative of the various controlled transactions undertaken by the Appellant. (d) failing to appreciate the role of Appellant s Functions, Assets and Risk (FAR) analysis, business strategies and commercial realities in Transfer Pricing. (e) failing to appreciate the importance of budgets in Transfer Pricing; and the documentation requirements under Rule 10D(1)(f) of the Income-tax Rules, 1962. (f) failing to appreciate that the Appellant, being a newlyestablished company, could not be compared as-it-is with the comparable companies, which were quite old and well-established in the industry. (g) denying the benefit o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ebut the arguments/evidence relied upon and/or the grounds taken for making the adjustment in the arm s length principle. 5. The learned AR pleaded that page 254 and 255 of the paper book are the copies of the order sheet before the TPO which clearly shows that the assessee was not provided opportunity as per the provisions of law, no show cause notice was issued and no material gathered by the TPO were made available to the assessee to revert back. Therefore, there is gross violation of principles of natural justice as provided in law. 5.1 The learned AR pleaded on this ground and submitted that as per the provisions of law, the assessee was not provided an opportunity by issuing the show cause notice before making the adjustments. Thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pass a proper and speaking direction under section 144C of the Income-tax Act. He pleaded that the opportunity given to the assessee must be real and reasonable. For this proposition he relied upon the decision in the case of Dwijender Kumar Bhattacharjee v. Superintendent of Taxes [1990] 78 STC 393 (Gau.). He also relied on the following case laws : (i) M. Chockalingam M. Meyyappan v. CIT [1963] 48 ITR 34 (SC); (ii) Aztec Software Technology Services Ltd. v. Asstt. CIT [2007] 107 ITD 141 (Bang.)(SB); (iii) Cargill (India) (P.) Ltd. v. Dy. CIT [2008] 110 ITD 616 (Delhi); (iv) CIT v. Simon Carves Ltd. [1976] 105 ITR 212 (SC) 6. On the other hand, the learned DR submitted that the reply which has been submitted by the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being heard, it is reiterated by the assessee that the TPO has failed to serve any show cause nor intimate the assessee for the adjustments to be made in respect of establishment of arm s length price, even though there was a gap of more than a month between last hearing on 11-9-2009 and the date or order i.e., 14-10-2009, and thus contravened the principles of natural justice. In the TPO order, it has however been stated that, The assessee vide order sheet dated 4-9-2009 was asked to furnish reasons as to why it has incurred loses in the current year. The assessee vide submission dated 11-9-2009 has submitted various reasons for incurring loses in current year. Thus, assessee was made aware of the TPO s stand by way of this show cause ..... X X X X Extracts X X X X X X X X Extracts X X X X
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