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TMI Blog2018 (9) TMI 1161X X X X Extracts X X X X X X X X Extracts X X X X ..... cing documentation. Hence, this Tribunal is of the considered opinion that the matter needs to be reconsidered by the Transfer Pricing Officer. Accordingly, the orders of the authorities below are set aside and the issue is remitted back to the file of the Assessing Officer. AO shall follow the statutory provisions and pass the necessary orders as provided under Section 144C Exclusion of expenditure incurred in foreign currency towards communication and insurance from the total turnover - Held that:- Assessing Officer is directed to exclude the expenditure incurred by the assessee from both the export turnover and total turnover. The orders of the DRP as well as the Assessing Officer are modified accordingly. Consideration is exclusio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ricing proceedings, the assessee came to know that there were some irregularities committed by M/s Acropetal Technologies Ltd. and proceedings were pending before Security Exchange Board of India, therefore, it has to be excluded. According to the Ld. representative, the assessee requested the Transfer Pricing Officer to exclude M/s Acropetal Technologies Ltd. as a comparable case. However, the TPO and DRP refused to exclude M/s Acropetal Technologies Ltd. According to the Ld. representative, in case M/s Acropetal Technologies Ltd. is removed from comparable cases, there is no need for any adjustment of arm's length price. 3. On the contrary, Dr. M. Srinivasa Rao, the Ld. Departmental Representative, submitted that M/s Acropetal T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. The Assessing Officer shall follow the statutory provisions and pass the necessary orders as provided under Section 144C of the Income-tax Act, 1961 (in short 'the Act'). 5. The next issue arises for consideration is exclusion of expenditure incurred in foreign currency towards communication and insurance from the total turnover. 6. We heard Shri Sriram Seshadri, the Ld. representative for the assessee and Dr. M. Srinivasa Rao, the Ld. Departmental Representative. The Dispute Resolution Panel excluded the expenditure incurred by the assessee in foreign currency towards communication and insurance from the export turnover. However, it was not excluded from total turnover. The reason pointed out by the DRP is that the decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e arises for consideration is exclusion of foreign exchange gain from profits of the undertaking. 9. We heard Shri Sriram Seshadri, the Ld. representative for the assessee and Dr. M. Srinivasa Rao, the Ld. Departmental Representative. The gain due to foreign exchange fluctuation on the export is a profit from export, therefore, this Tribunal is of the considered opinion that the same cannot be excluded. In fact, this Tribunal in the assessee's own case for assessment year 2009-10 had taken a similar view by placing reliance on the judgment of Madras High Court in CIT v. Pentasoft Technologies Ltd. (2012) 347 ITR 578. 10. In view of the above, the orders of the lower authorities are set aside and the Assessing Officer is directed t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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