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TMI Blog2014 (1) TMI 891X X X X Extracts X X X X X X X X Extracts X X X X ..... to the AO with a direction that the adjustment, if any, is required to be made due to determine of ALP, it should be restricted only to the purchases made from Associated Enterprises and not to the entire turnover of the assessee-company – Decided in favour of Assessee. - IT Appeal Nos. 4714 & 4715 (Mum.) of 2008 - - - Dated:- 28-6-2013 - B.R.MITTAL AND RAJENDRA SINGH , JJ. For the Appellant : Porus Kaka. For the Respondent : Ajeet Kumar Jain. ORDER:- PER BENCH: - The assessee has filed these two appeals for assessment years 2003-04 and 2002-03 against the order of ld. CIT(A)-XXXIII, both dated 30.4.2008 on similar grounds along with the application for condonation of delay of 13 days in the appeal relating to the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tances enumerated in clauses (a) to (d) of section 92(3) of the Act and in the event of material information or documents in his possession on the basis of which an opinion can be formed that such circumstances exists and in all other cases, the value of international transaction should be accepted without further scrutiny. The appellant submits that the Assessing Officer failed to adduce any material or evidence which required any recomputation of the ALP and accordingly, was neither justified in making a reference to the TPO nor in making any adjustment to the ALP reflected by the appellant. (2) The learned Commissioner of Income-tax (Appeals) erred in holding that once a reference to TPO is made, he is bound to determine the ALP, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d reasons and the same be condoned. Ld.AR at the time of hearing reiterated the above facts. 4. The ld. DR has not disputed the above facts. 5. Considering the reasons stated by the ld. AR, we are of the considered view that there was no deliberate delay in filing the appeals in time before the Tribunal. The delay has occurred due to a reasonable cause and in the interest of justice we condone the delay and entertain the appeals on merits. 6. At the time of hearing, the ld. AR submitted that Ground Nos. 1,2,3 and 5 of both the appeals filed by the assessee are not pressed for. 7. In view of the above, the Ground Nos. 1,2,3 and 5 of both the appeals filed by the assessee are rejected. 8. In respect of Ground No.4 of both the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee only on the sales effected out of the goods purchased from the Associated Enterprise for the purpose of determining the ALP of the purchases made from the Associated Enterprise. However, the ld. CIT(A) in both the appeals rejected the above contention of the assessee on the ground that the assessee had not maintained separate account for the controlled transactions. Hence net profit margin has to be applied for the entire turnover and only on that basis ALP of the controlled transactions can be found out. Hence, these appeals by the assessee before the Tribunal. 12. At the time of hearing, the ld. AR submitted that the same very issue has been considered by the Mumbai Bench of the Tribunal in the case of Emerson Process Managem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et aside. 14. The ld. DR has not disputed the above contention of the AR save and except relying on the orders of Ld. CIT(A). However, he has agreed that the issue involved in both the appeals viz. Ground No.4 is covered by the earlier orders of the Tribunal (supra). 15. We have carefully considered the orders of the authorities below and the submissions of the ld. Representatives of the parties. In the light of the earlier orders of the Co-ordinate Bench (supra), we agree with the ld.AR that the adjustment made to determine the ALP by considering the entire purchases of the assessee in the assessment years under consideration is not in accordance with law. Hence we set aside the orders of the authorities below and restore the matter ba ..... X X X X Extracts X X X X X X X X Extracts X X X X
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