9911796707
TMI Blog2012 (9) TMI 45X X X X Extracts X X X X X X X X Extracts X X X X ..... Circle 10(1) New Delhi ('the Learned AO') and the final assessment order passed, pursuant to the directions of the Hon'ble Dispute Resolution Panel ("DRP"), by the Learned AO are law and void ab-initio. 2. The Learned AO has erred in law and on the facts of the case in determining the total income of the Appellant Rs. 24,536,451/- as against Nil returned income. 3. That on facts and in law, the Learned AO has erred in assuming jurisdiction to refer and in making the reference to the Learned TPO despite the absence of requisite preconditions being met in law. 4. The Hon'ble DRP and Learned TPO/AO have erred in not appreciating the remuneration model and the commercial expediencies of the Appellant. In doing so have grossly erred in 4.1 n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the fact that the same was not available to the appellant at the time of complying with the transfer pricing documentation requirements and disregarding the appellant's claim for use of multiple year date for computing the arm's length price. 5.3 That on the facts and in law, the Hon'ble DRP and Learned TPO/AO have erred in rejecting the economic analysis undertaken by the Appellant without proper justification and conducting a fresh search using arbitrary filters for identifying the companies comparable to the Appellant. 5.4 That on facts and in law, the Hon'ble DRP and Learned TPO/AO have cherry picked comparables with the sole objective of rejecting comparables selected by the Appellant and arriving at skewed results. 5.5 That on fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d proviso to section 92C(2) of the Act. 7.1. That on facts and in law, the Hon'ble DRP and Learned TPO / AO have erred in applying the amendment to section 92C(2) retrospectively and in the process have neglected the Indian transfer pricing regulations and judicial precedence. 8. That on facts and in law, the Hon'ble DRP and Learned TPO/AO have erroneously invoked the provisions of Chapter X and failed to appreciate the fact that there was no intention whatsoever on the part of the Appellant to shift profits outside India. 9. The Learned AO has erred in levying interest under section 234B, 234D and 244A of the Act while completely disregarding the provisions of the Act and the judicial precedence. 10. That on the facts and circumstances ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tested party margin at -0.94% (as against unadjusted margin of 4.69% of the assessee). The draft assessment order which included the TP adjustment of Rs. 24,467,485/-was confirmed by the Disputes Resolution Panel (DRP). 4. Against the above order the Assessee is in appeal before us. 5. At the outset, assessee submitted that in arriving at the set of comparable companies, the TPO relied upon non public information gathered using his powers u/s. 133(6). It was submitted that this information is not contained in the annual reports available in the public domain and is not legally accessible to the assessee. Without prejudice to the foregoing, it was submitted that in many instances information gathered through 133(6) notices and used against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... having a bearing on the case with the assessee. It was further submitted that TPO has not gathered complete information from these companies as specified information u/s. 10B(2) for undertaking comparability analysis. Also in case of certain companies considered as comparable by the TPO, the responses filed by the companies do not answer all the questions asked in the notice served u/s. 133(6) of the Act. In the background of the above, it was submitted that if the TPO is using the information gathered u/s. 133(6), it is necessary that for such information is shared with the assessee and the assessee is granted sufficient opportunity to examine it and present the appropriate response. It was further requested that the information used by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. 5.4 We have heard the rival contentions in light of the material produced and precedent relied upon. In view of the decision quoted by the assessee as above, we are of the view that any information obtained in the course of assessment proceedings has to be supplied to the assessee for its objection, if any. In the absence of doing so, it is a violation of fundamental principles of natural justice. In view thereof, the matter is restored back to the file of the Assessing Officer with the direction to supply whatsoever information used against the assessee and the assessee be granted a reasonable opportunity of being heard and thereafter pass a fresh assessment order, as per law. 6. In the result, the appeal filed by the Assessee stands ..... X X X X Extracts X X X X X X X X Extracts X X X X
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