9911796707
TMI Blog2015 (6) TMI 1181X X X X Extracts X X X X X X X X Extracts X X X X ..... ls filed by the assessee are directed against the order passed by the Assessing Officer u/s 143(3) r.w.s. 144C of the I.T. Act, 1961 for the AY 2008-09 on 29.10.2012 and order dated 29.11.2013 for the AY 2009-10, giving effect to the order of the DRP-I u/s 144C(5) of the Act. As the issues arising in both the appeals are common, for the sake of convenience, they heard together and disposed of by way of this common order. 2. The facts are giving in paras 2, to 2.3 of the TPO order, which is extracted for ready reference: "2. Taxpayer's profile 2.1 Name The assessee, Green Filed Online Pvt. Ltd. is primarily engaged in providing contract IT and related services to Greenfield Online Inc. USA (Greenfield US). During FY 2007-08, the taxpa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the draft assessment order based on which it was concluded that it was 'necessary or expedient' to refer the matter to the Ld. TPO for computation of the Arm's Length Price (,ALP') for the Appellant's international transactions of provision of contract IT services and provision of marketing support services. 3. The Ld. TPO grossly erred in not considering the correct Operating Profit/ Total Cost ('OP/TC') margins of specific comparable companies with respect to the Appellant's international transaction of provision of contract IT services, despite the fact that the correct computations of OP/TC margins of the said comparable companies were duly submitted by the Appellant before the Ld. TPO in accordance wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive and qualitative filters in determining the ALP for the Appellant's international transactions of provision of contract IT services and provision of marketing support services; 4.5 . including certain companies in the final set that were not comparable to the Appellant in terms of functions performed, assets employed and risks assumed with respect to the Appellant's international transactions of provision of contract IT services and provision of marketing support services; 4.6 excluding certain companies on arbitrary / frivolous grounds even though they were comparable to the Appellant in terms of functions performed, assets employed and risks assumed with respect to the Appellant's international transactions of provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the inclusion of certain comparables by the TPO for determining the Arm's Length Price. He relied on the decision of the Tribunal in the assessee's own case in the earlier assessment year and submitted that the same should be followed and the comparable directed to be excluded by the ITAT in its earlier year order, should also be excluded by the T.P.O. in the present T.P. order. 6. Ld. Standing Counsel opposed this contention without distinguishing the order of the ITAT for the earlier assessment year. 7. From the perusal of the order-sheet entry, it is clear that a copy of the Tribunal's order in the assessee's own case for the immediately preceding year was given to Standing Counsel on 18.03.2015. The Standing Counsel could not submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the same as Arm's Length Price arrived at by the Revenue. As the assessee felt that it would get relief on this count, the Ld. counsel did not advance any arguments on the other grounds raised in this regard for the reason that it would be academic exercise. He reserved his right to raise these grounds in other assessment year. 10. In view of above submission, we do not deal with all the other ground of the assessee and dismiss the same as not argued in the present proceedings. 11. In the result, this appeal is allowed in part. 12. ITA No. 989/Del/2014 pertains to the AY 2009-10, here also the dispute is regarding selection of comparables by the TPO. The other issue is grant of "working capital adjustment". 13. The Ld. counsel for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjustment have also not been considered. 15. Thus, it would be appropriate to set aside the matter to the file of the Assessing Officer/T.P.O. for fresh adjudication, in accordance with law, specifically, when the TPO in the preceding AYs 2007-08 & 2008-09 had allowed the very same adjustment to the assessee on the same facts and had not considered the material and arguments of the assessee in this year. 16. The TPO is directed to consider the date furnished before him by the assessee the contention raised on this issue as well as the proposition laid down in the following cases: i) Mentor Graphics Pvt. Ltd. (2007) 109 ITD 101 ii) E-Gain Communication (P) Ltd. Vs. ITO (118 ITD 243) iii) Philips Software Centre Pvt. Ltd. (119 TTJ 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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