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TMI Blog2019 (3) TMI 75X X X X Extracts X X X X X X X X Extracts X X X X ..... . Nageshwar Rao Sh. Sandeep S. Karhail, Advs For The Respondent : Sh. Sandeep Kr. Mishra, SR DR Sh. Sanjay I. Bara, CIT DR ORDER PER SUCHITRA KAMBLE, JM This appeal is filed by the assessee against the Assessment Order dated 26/10/2018 passed by the Assessing Officer u/s 143 (3) read with Section 144C of the Income Tax Act, 1961 for Assessment Year 2014-15. 2. The grounds of appeal are as under:- Appeal under Section 253(1) of the Income Tax Act, 1961 (' Act ) against the order dated January 26 October, 2018 (received on 5 November 2018) passed under Section 144C (13) read with Section 143(3) of the Act ( impugned order ), by the learned Deputy Commissioner of Income Tax, Circle-4(1), New Delhi ( AO ). GROUNDS OF APPEAL 1. That on the facts and in circumstances of the case and in law, impugned order incorrectly determined taxable income of ₹ 30,67,10,630/- as against returned income of Rs. - 6,00,66,615/- by making following additions: a) purported substantive addition of ₹ 24,79,23,197/- made by Ld. Transfer Pricing Officer ( TPO ) basis self- contradictory and categorical finding that no adverse inf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... length situation. 9. Without prejudice to all other grounds, Ld TPO/AO erred in performing so called intensity adjustment on all indirect expenses while professing to consider quantum of marketing related function and further erred in making inappropriate selection of comparables providing marketing support services and Hon ble DRP erroneously upheld the approach of Ld. TPO/AO. 10. Without prejudice to all other grounds, Ld. AO/TPO/ DRP erred in making inappropriate selection of companies as comparable and rejected comparable companies proposed by Appellant citing incorrect reasons. 11. Without prejudice to all other grounds, Ld. TPO/ AO/DRP have made certain errors while computing intensity based adjustment. 12. Ld. AO/Ld. TPO / DRP have erred in retaining protective assessment based on BLT even though the same has been held to be unlawful further, Ld. TPO travelled much beyond jurisdiction conferred in law in questioning the reasonableness, quantum, and commercial expediency of AMP expenditure incurred by the Appellant. 13. Impugned order erred in not appreciating that AMP expenses were incurred by Appellant in normal course of business, were who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... establishing that the conditions specified in clause (a) to (d) of Section 92C (3) of the Act are satisfied before disregarding the arm s length price determined by the Appellant and proceeding to determine the arm s length price himself. 21. Ld. TPO/AO/DRP have erred in alleging that Appellant failed to establish actual rendition or services without appreciating the detailed documentation and evidences submitted. 22. That in making the aforesaid addition, the Ld. TPO/AO/DRP proceeded in irrelevant and baseless presumptions that that the services rendered by AEs could have been availed locally by Appellant or that there was no necessity or benefit arising from such services or that such services are steward ship / shareholder activities even while alleging that nature of services is not clear. Common Grounds 23. That on the facts and circumstances of the case and in law, the learned AO has erred in initiating penalty proceedings under Section 271 (1 ) (c) read with Section 274 of the Act. 24. That on the facts and circumstances of the case and in law, the learned AO has erred, in charging interest under Sections 234B and 234D of the Act. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2/2017 on the issue of Arm s Length Price of international Transactions. Accordingly, the DRP passed an order u/s 144C(5) dated 18/09/2018 and the DRP directed the AO/TPO to incorporate the reasons given by the DRP in respect of various objections at the appropriate places in die body of the final order which was received in lids office on 24/09/2012 to be implemented by the Assessing Officer as per the directions given by the DRP. In view of the direction of the DRP, the TPO has passed appeal effect order on 18/10/2018 giving effect to the DRP s direction which was received in this office on 22/10/2018. While giving effect to tire directions of the Hon ble DRP, the final list of comparables and the calculation of ALP is as under: S. No. Name of the Company Adjusted OP/OC (as per direction of Hon ble DRP) 1 Crystal Hues Ltd. 5.23% 2 ICRA Management Consulting Services Ltd. 4.01% 3 Kestone Integrated Marketing Services Pvt. Ltd. 10.11% 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs, 42,10,32,235/-(substantive) and ₹ 15.23,97,596/-(protective) made in the draft assessment order was reduced amounting to ₹ 36,67,36,374/-(substantive) ₹ 13,65,27,357/- (protective) with directions of the Hon ble DRP as well as TPO s adjustments. Therefore, the amount of ₹ 36,67,36,374/- was added to the income of the assessee company on account of Transfer Pricing Adjustment. 4. Being aggrieved by the assessment order, the assessee filed present appeal before us. 5. The Ld. AR submitted that the issue is squarely covered by the decision of the Hon'ble High Court in assessee s own case for Assessment Years 2006- 07, 2007-08, 2008-09 2009-10 reported in (2016) 381 ITR 227 as well as in Assessment Year 2012-13 by the Tribunal. 6. The Ld. DR submitted that the Department is in appeal before this Hon ble Apex Court in respect of Hon'ble High Court s decisions in assessee s own case for Assessment Years 2006-07, 2007-08, 2008-09 2009-10. The Ld. DR could not controvert that the factual aspects of the present Assessment Year are identical with the earlier Assessment Years which was decided by the Hon'ble High Court as well as Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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