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TMI Blog2019 (9) TMI 880X X X X Extracts X X X X X X X X Extracts X X X X ..... enue before the Tribunal was the appropriate grant of risk adjustment to determine the ALP is to be decided by the Adjudicating Authority - HELD THAT:- Impugned order of the Tribunal has accepted the grievance of the Revenue and restored the issue to the TPO/Assessing Officer with direction to examine the allowability of risk adjustment as claimed. In the above facts and circumstances, the question as proposed is pre-mature and does not give rise to any substantial question of law. - INCOME TAX APPEAL NO. 1336 OF 2017 - - - Dated:- 3-9-2019 - M.S. SANKLECHA AND NITIN JAMDAR, JJ. For the Appellant : Mr. Sham Walve with Mr. Pritish Chatterjee ORDER P.C:- This Appeal under Section 260-A of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... action and cannot be applied to other transaction; (ii) The Revenue being aggrieved by the above order of the Tribunal filed an appeal to this Court being Income Tax Appeal No.1088 of 2015 (CIT v/s. Sandvik Asia Pvt. Ltd.,). This appeal was dismissed on 26th April, 2018 on this very question; (iii) Mr. Walve, learned Counsel appearing for the Appellant, very fairly states that this issue, thus stands concluded by order of this Court in Sandvik Asia (supra). This Court while deciding this issue relied upon various decisions of this Court to hold that the transfer pricing adjustment cannot be done at the entity level but has only to be done in respect of international transactions of the Assessee with its Associated Enterp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21st February, 2014) on similar fact, excluded M/s. Genesys from the list of comparable to determine the ALP of sale of M/s. Hyundai Motors (supra) to its AEs. It found that as R D services in respect of auto parts, is functionally different from Geospatial Services. Thus, holding even in the present facts M/s. Genesys is not comparable; (v) The only contention urged on behalf of the Revenue in support of the impugned order is that M/s. Genesys was chosen as comparable of Respondent-Assessee itself. Therefore, it would be bound by its selection and cannot now urge to the contrary; (vi) So far as the submission of the Revenue is concerned of the Assessee being barred from withdrawing a company selected by it as a compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench Mark price of such a transaction to determine the ALP of a transaction with an AE. Thus, the entire exercise of the Transfer Pricing provision is not adversarial in that sense but an enquiry to determine a bench mark price by finding the price of an identical transaction between unrelated parties. Thus, we find no merit in the primary submission on behalf of the Revenue; (vii) On merits, we note that the impugned order on facts found that M/s. Genesys is engaged in a different business and, therefore, not functionally similar. This finding of fact is not shown to be perverse in any manner by the Revenue; (viii) In the above view, the question as proposed does not give rise to any substantial question of law. Thus, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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