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TMI Blog2017 (11) TMI 1861X X X X Extracts X X X X X X X X Extracts X X X X ..... sment Year 2010 - 11. 2. The grounds raised by the revenue in its appeal are as under: "1. The order of the Dispute Resolution Panel is opposed to law and the facts and circumstances of the case. 2. The DRP erred in directing the TPO to exclude M/s. HCCA Business services Pvt ltd., M/s. Killick Agencies & marketing Ltd from the list of final comparables being functionally uncomparable without appreciating the fact that these companies qualify all the qualitative and quantitative filters applied by the TPO. 3. The DRP erred in directing the TPO to exclude M/s. Hindustan Housing Co. Ltd from the list of final comparables being functionally uncomparable and related party transaction exceeds 25% without appreciating the fact that these c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Resolution Panel, Bangalore to the extent prejudicial to the respondent is bad in law. 2. The Assessing officer has erred in recomputing TP adjustment at Rs. 34,75,946/- without giving the basis of computation of TP adjustment in the final assessment order. The Order is therefore bad in law. 3. The Dispute Resolution Panel, Bangalore has erred in confirming the action of the Transfer Pricing Officer in: a. Computing the arm's length price based on the data for the Financial Year 2009-10 of the comparables, which was not available when the assessee undertook transfer pricing documentation and reporting obligations; b. Rejecting the comparables selected by the Respondent on unjustifiable grounds; c. Rejecting the transfer prici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icer in making a reference to Transfer Pricing Officer for determining the arm's length price without demonstrating as to how or why it was necessary and expedient to do so. 7. The Dispute Resolution Panel, Bangalore has erred in confirming the action of the Assessing officer and Transfer Pricing Officer in: a. Passing the order without demonstrating that the Respondent had motive of tax evasion; and b. Not appreciating that the charging or computation provision relating to income under the head "Profits & Gains of Business or Profession" do not refer to or include the amounts computed under Chapter X and therefore the addition made under Chapter X is bad in law. Ground relating to gratuity payment 8. The Low ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of RGA Services India Pvt. Ltd. vide order dated 20.11.2015 in ITA No. 22/Mum/2015. The bench wanted to the assessment year involved in this order of the Mumbai Bench of the tribunal. In reply, he submitted that a copy of this tribunal order is available on pages 483 to 490 of the paper book and from the same, it can be seen that the assessment year involved in that order is same i.e. 2010 - 11. Learned DR of the revenue supported the orders of TPO, AO & DRP. 5. We have considered the rival submissions. We find that the issue in dispute is squarely covered in favour of the assessee by these two tribunal orders cited by the learned AR of the assessee for same assessment year. We find that in Para 8 of the tribunal order rendered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our attention was drawn to pages 369, 379 & 371 of the paper book. At this juncture, the bench pointed out that as per the tribunal order on page 379, the decision is this that since, the availability of comparables is not an issue and therefore, RPT percentage at 15% is approved. The bench pointed out that in the present case, there are only 6 comparables as per TPO and out of that 3 are already excluded by DRP and for 1 comparable, the assessee is in appeal before us and therefore, in the facts of the present case, it cannot be said that the availability of comparables is not an issue and hence, RPT percentage in the present case cannot be 15% and it has to be 25%. In reply, learned AR of the assessee submitted that the assessee is reque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the present case. Hence, Hence, we respectfully follow this tribunal order and hold that in the present case also, these two comparables i.e. 1) HCCA Business Services Pvt. Ltd. and 2) Killick Agencies & Mktg. Ltd., are rightly excluded by DRP from the final list of comparable. 10. The next TP issue in the appeal of the revenue is regarding the direction of DRP that Working Capital Adjustment should be granted on actual basis without any cap. 11. In respect of this issue, Learned DR of the revenue supported the draft assessment order passed by the AO and the order of TPO. Learned AR of the assessee supported the order of DRP. He also submitted that this issue is covered in favour of the assessee by the tribunal order rendered in the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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