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TMI Blog2021 (1) TMI 156X X X X Extracts X X X X X X X X Extracts X X X X ..... stop the revenue from taking such steps as are available to it in law and the assessee also from contesting the action of the revenue in accordance with the law, if it so desires. - IT(TP) A No. 2664/Bang/2017 - - - Dated:- 21-12-2020 - N.V. Vasudevan, Vice President And Chandra Poojari, Member (A) For the Appellant : Ajit Kumar Jain, C.A. For the Respondents : Pradeep Kumar, CIT (D.R.) ORDER Chandra Poojari, Member (A) 1. This appeal filed by the assessee is directed against the assessment order dt. 06.10.2017 passed u/s. 143(3) r.w.s. 144C(13) of the Income Tax Act, 1961 ('the Act') for the Assessment Year 2013-14. 2. The assessee has raised the following consolidated grounds: 1. General 1.1 Based on the facts and circumstances of the present case and in law, the Final Order passed by Ld. Assessing Officer (`Ld. AO') being passed not in conformity with the directions issued by the Dispute Resolution Panel ('Hon'ble DRP'), is bad in law as per provisions of section 144C(10) r.w.s. 144C(13) of the Income-tax Act, 1961 ('the Act') and hence liable to be quashed. 1.2 On the facts and in the circumstances of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of consistency. 2.7 Without prejudice to the above, the Ld. TPO erred in not considering the other operating income of the Appellant as part of operating revenue in computing the NCP margin of the Appellant for FY 2012-13. 3. Grounds in relation to rejection of the transfer pricing analysis conducted by XSL and choice of comparables Erroneous rejection of transfer pricing study of the Appellant 3.1 The Hon'ble DRP/Ld. TPO erred on facts and in law in disregarding the transfer pricing analysis conducted by the Appellant for establishing the arm's length price of the international transactions of the Appellant without providing cogent reasons. 3.2 The Hon'ble DRP/Ld. TPO erred on facts and in law in conducting a fresh benchmarking analysis using non-contemporaneous data and substituting the Appellant's analysis with the fresh benchmarking analysis on his own conjectures and surmises. Thus the Appellant prays that the fresh benchmarking analysis conducted by the Ld. TPO is liable to be quashed. Erroneous selection/rejection of comparable companies 3.3 The Hon'ble DRP/Ld. TPO erred on the facts and in law in violating the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red on facts and in law in rejecting the working capital adjustment computed by the Appellant and which was allowed by the Ld. TPO, by arbitrarily stating that the Appellant has failed to demonstrate the effect of negative working capital on the margins of the Appellant. 3.11 The Ld. TPO erred in law and on facts by not giving effect to the directions of the Hon'ble DRP in relation to the comparables-Evoke Technologies Limited (i.e. to be included) and ICRA Techno Analytics Limited (i.e. to be excluded) in the final set of comparables. 3.12 Hon'ble DRP/Ld. TPO ought to have applied the upper turnover filter and select the companies as comparables after considering the turnover and size of the Appellant. 4. Grounds in relation to incorrect margin computation of the comparables 4.1 The Hon'ble DRP/Ld. TPO erred on the facts and incorrectly computed NCP margins of the comparable companies by considering financial data from the database(s), disregarding the Annual Reports filed by the Appellant for such companies during the assessment proceedings. 3. At the time of hearing, the learned Authorised Representative primarily argued the ground No. 1.1 wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IT(TP) A No. 832/Bang/2017 dt. 31.12.2018 has held in paras 9 to 12 as under: 9. We have considered the rival submissions. We find that on identical facts, this Tribunal in the case of Software Paradigms Infotech (P.) Ltd. (supra) has quashed the final order of assessment observing as follows:- 3.3.1 We have heard the rival contention of both parties in the matter and perused and carefully considered the material on record. The undisputed facts on record, as brought out by the discussions above, is that the AO, as per law, was required to pass the final order of assessment dated 17/1/2014 for asst. year 2009-10 u/s. 143(3) r.w.s. 144C of the Act in conformity with the directions 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, there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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. 11. In view of the conclusion that the assessment order is null and void, the other grounds of appeal raised by the assessee on merits of the addition made do not require any adjudication. 12. In the result, the appeal of the assessee is allowed. In the present case also, as pointed out by the AR, the DRP included Evoke Technologies Limited in the list of comparables and similarly the DRP excluded ICRA Techno Analytics Limited from the list of comparables. The ALP adjustment made by the TPO has been changed on account of these two directions of DRP, however, the Assessing Officer retained the original Transfer Pricing Adjustment at ₹ 8,67,23,600 in the final asse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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