9911796707
TMI Blog2012 (8) TMI 963X X X X Extracts X X X X X X X X Extracts X X X X ..... laring income of Rs. 66,65,99,500/-. The assessment was completed at total income of Rs. 162,46,39,575/- after making following additions: - i) transfer pricing adjustments; ii) withdrawal of 10A deduction of Rs. 40,71,12,732/-. 3. Both these adjustments were made by the AO on the basis of directions given u/s 144C(5) by Dispute Resolution Panel (in short "DRP"). 4. Being aggrieved with the order of AO passed u/s 143(3) read with sec. 144C, the assessee is in appeal before us and has taken following grounds of appeal: - 1. "The final assessment order dated October 31, 2011 passed by the Deputy Commissioner of Income Tax, Circle 1(1), New Delhi ('Learned AO') pursuant to the directions of the Hon'ble Dispute Resolution Panel ('Hon'ble D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have erred by selecting certain companies which are earning super normal profits as comparable to the appellant. 9. That on facts and in law, the ld. TPO/AO have erred by exercising his powers u/s 133(6) of the I.T. Act, 1961 ('the Act') to obtain information which was not available in public domain and relying on the same for comparability purposes. 10. That the ld. TPO has failed to make appropriate adjustments to account for differences in varying risk profile of the appellant vis-à-vis the comparables and in the process also ignored Indian transfer pricing regulations and judicial precedence. 11. That on facts and in law, the ld. TPO/AO have erred by not considering that the adjustment to the arm's length price, if any, shoul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made the upward adjustment of Rs. 55,99,65,116/- to the income of the assessee, being the difference between Arm's Length Price and the price charged by the assessee. 7. After considering the assessee's reply, the AO passed the draft order and proposed the addition of Rs. 55,99,65,116/-. The assessee filed objections before DRP, which after considering them, directed the TPO to recompute ALP as per directions. 8. Ld. Counsel for the assessee submitted that TPO had obtained information from companies u/s 133(6) which was not completely provided to assessee. 9. Ld. Counsel for the assessee submitted that in identical circumstances in the case of Agilent Technologies (International) Pvt. Ltd. vs. ACIT, ITA No. 5352/Del/2011 dated 15.06.2012 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Advance Technologies Private Limited" 12. Ld. Counsel submitted that same CD was provided in the case of Agilent Technologies (International) and in case of assessee in respect of information obtained u/s 133(6). He submitted the data in respect of aforementioned companies which was utilized by TPO was missing in CD. 13. We have considered the submissions of both the parties and have perused the record of the case. We find that Tribunal has observed as under in the case of Agilent Technologies vide ITA No. 5352/Del/11: "5. We have heard rival contentions and gone through the relevant material available on record. From the material placed before us it emerges that TPO has utilized information for comparability from the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee's own case for AY 2003-04 and pointed out that Tribunal has held that AEGSC unit is a newly set up unit and has not been created by splitting up of the existing unit. He, therefore, submitted that assessee was entitled for deduction u/s 10A. 18. We have considered the submissions of both the parties and have perused the record of the case. 19. We find that Tribunal in assessee's own case for AY 2003-04 has held as under: - "36. We have heard both the parties and perused the material placed before us. We find that the CIT(A) has considered all the parameters which may be necessary for adjudicating whether the set up of the new unit is by way of splitting up of the existing business or it is a new set up over and above the existing set ..... X X X X Extracts X X X X X X X X Extracts X X X X
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