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TMI Blog2016 (10) TMI 1318X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. The Learned lower authorities erred in making a reference u/s. 144C without meeting the arguments/objections of the appellant as noted in para 6.1 to 6.4 of pages 3,4,5,6 & 7 of the order of the Learned DRP and as such, the reference u/s. 144C is invalid and the entire assessment itself is invalid. 3. The Learned AO should have appreciated that the appellant is not an 'ELIGIBLE ASSESSEE' as defined in section 144C(15)(b), since it is not a foreign company but an Indian/Domestic company, and therefore the provisions of section 144C do not apply. 4. The Learned AO has failed to appreciate that the DRP has no jurisdiction u/s. 144C on orders that have merged in the order u/s. 263 and hence the reference is invalid. 5. The Learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the lower authorities erred in holding that the deeming provision in Se. 92B(2) is attracted without first pointing out how the provisions of Sec. 92A(1) is attracted and also criteria laid down in Sec. 92A(2) is also simultaneously attracted. c) The Learned authorities failed to appreciate that in the absence of an A.E. as defined in Sec. 92A, there can be no application of Sec. 92B(2) of the Act. d) The Learned DRP has erred in holding that there is no basis for the argument of the appellant that the Transfer Pricing Officer (the TPO) has no jurisdiction to resort to an implied provisions of law or a deeming provision for the purpose of determination of the actual state of affairs in a business arrangement without appreciating the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : WITHOUT PREJUDICE THAT - a) The authorities should have appreciated that the contractual terms is material to the determination of ALP as per Clause (c) of Rule 10B (2) and therefore, the arms length price (ALP) should be determined by taking only such uncontrolled transactions which also had similar contractual terms, as NMDC and MMTC, whose financial data is available in public domain. b) It should have been appreciated that NMDC and MMTC could not be accused of entering into tainted agreements or exercising undue influence for the purpose of avoiding or shifting of profits and therefore comparable "uncontrolled transactions" defined in Rule 10B(2) read with Rules 10B(3) and 10C of the I.T. Rules for determination of ALP. c) Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich reconciled the stock figures/details. 13. The Learned Assessing Officer erred in initiating penalties afresh in the order when the penalties were dropped by the assessing officer on completing of the original assessment u/s 143(3) dated 32/12/2009 and further when there are no directions of the CIT u/s 263 in this regard. The Appellant seeks your leave to add, alter amend or delete any of the grounds urged at the time of hearing. 2 During the course of hearing learned counsel for the assessee has invited our attention to the facts that the present appeal is emanated from the order of the assessing officer passed consequent to the order of CIT passed u/s. 263 of the act. 3 The order passed by the CIT u/s. 263 of the act has been ch ..... X X X X Extracts X X X X X X X X Extracts X X X X
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