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TMI Blog2018 (10) TMI 1781X X X X Extracts X X X X X X X X Extracts X X X X ..... [ 2012 (10) TMI 206 - ITAT DELHI] is concerned, we find that in the said decision, the counsel for the Assessee has in para 3.8 of the said order prayed for setting aside the final order of assessment of AO to pass orders in accordance with the directions of the DRP. Thus it is a case of concession by the Assessee and not on the basis of arguments advanced by the parties. The law is well settled that a decision on concession of the counsel cannot be regarded as a precedent. Therefore the decision cited by the learned DR does not support the case of the revenue. - Decided in favour of assessee. - IT(TP)A No.368/Bang/2016 & CO No.13/Bang/2017 [in IT(TP)A No.479/Bang/2016], IT(TP)A No.479/Bang/2016 - - - Dated:- 31-10-2018 - SHRI N.V. VASUDEVAN, VICE PRESIDENT AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER For the Appellant : Shri L. Bharath, ACS For the Respondent : Ms. Neera Malhotra, CIT(DR-II)(ITAT), Bengaluru. ORDER Per N.V. Vasudevan, Vice President IT(TP)A No.368/B/16 is an appeal by the assessee, while IT(TP)A No.479/B/16 is an appeal by the revenue. Both these appeals are directed against the final order of assessment dated 31.12.2015 passed by the D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ectification of the order under section 92CA(5) r.w.s. 154 of the Act. The TPO accepted the contention of the assessee and passed a rectified order dated 10.03.2015 proposing the following adjustment:- International Transaction Arm's Length Price as determined in order under section 92CA(3) Price received Adjustment under section 92CA Provisionof technology support services 37,89,74,679 34,41,24,495 3,48,50,184 Total 3,48,50,184 6. The AO passed a draft assessment order dated 23.02.2015 under section 143(3) of the Act. The AO also made, inter alia, the following disallowances:- Particulars Amount (in Rs.) Disallowance under section 10A of the Act on the basis that: Assessee had received certain export proceeds beyond 6 months of the date of the invoice In computing the relief under section 10A of the Act, expenses incurred in foreign currency were not red ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved by the aforesaid order of the AO , to the extent prejudicial to it has preferred an appeal on the following grounds of appeal:- 1. The order passed by the LAO is bad in law since, that the said order has not considered the directions of the Hon. DRP and the request made by the Appellant for rectification of the said order. 2. On the facts and in the circumstances of the case, the order passed by the Hon. DRP is bad in law, to the extent the same is prejudicial to the Appellant. 3. The Hon'ble DRP erred in confirming the order of the Learned TPO rejecting the transfer pricing documentation maintained by the Appellant on the basis that the information or data used by the Company for the computation of the arm's length price is not reliable or correct. 4. The Hon'ble DRP and the LAO erred in confirming the order of the Learned TPO in rejecting the comparable companies identified by the Appellant on the basis that certain companies selected by the Appellant as comparable had failed the related party transactions filter, forex to sales filter, employee cost filter or different financial year. 5. The Hon'ble DRP and the LAO erred in confirming the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arables. 5. Whether the DRP is correct in foreign exchange fluctuation as operating in nature, while treating foreign exchange fluctuation non-operating in nature as applied by the TPO. 6. Whether the DRP is correct in holding that the foreign exchange transaction are to be considered as operating in nature, when the Rule 10B(2)(d) stipulates that the net profit margin realized by the taxpayer in the international transactions shall alone be computed for comparability analysis under TNMM. 7. The appellant craves leave to add, alter, amend and / or delete any of the ground/ mentioned above. 12. At the time of hearing, the ld. Counsel for the assessee addressed arguments on ground No.1 raised in assessee s appeal. It was submitted that the final order of assessment passed by the AO dated 31.12.2015 is bad in law. In this regard, our attention was drawn to the fact that the AO originally passed a draft assessment order on 23.02.2015 wherein he incorporated the TP adjustment as suggested by the TPO in the order passed u/s. 92CA of the Act for the relevant assessment year. 13. The assessee preferred objections before the DRP against the draft order of assessment and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions issued by the DRP u/s 144C(5) of the Act, which are binding on him as per section 144C(10) thereof and within the time prescribed u/s 144C(13) of the Act. We find that instead of passing the final order of assessment as required by law, the AO passed the impugned final order of assessment dated 17/1/2014 u/s 143(3) r.w.s 92CA of the Act; which, as contended by the id AR, is identical to the draft order of assessment passed on 14/3/2013 by only incorporating this TPO's proposals and , thereby evidently giving the DRP's mandatory directions issued u/s 144C(5) of the Act a complete go-by. In our view, it is factually established that the AO in the final order of assessment dated 17/1/2014 has not given effect to or carried out the binding directions of the DRP as required u/s 144C(10) within the time specified u/s 144C(13) of the Act; which is a clear violation of the binding provisions of sec. 144C(10) and (13) of the Act. Therefore, in our considered opinion, the conduct of the AO/TPO in passing the impugned final order of assessment dated 17/1/2014 is a clear case of defiance and disregard to the binding directions of the higher authorities, i.e, the DRP in the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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