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TMI Blog2019 (2) TMI 1993X X X X Extracts X X X X X X X X Extracts X X X X ..... hok Manchanda, Sr. Std. Counsel. ORDER 1. The following questions of law were framed for consideration by this Court in the Assessee's appeal under Section 260A of the Income Tax Act, 1961 (hereinafter, the "Act") :- "(i) Whether the ITAT erred in the facts of the case and in law in not appreciating that gross profit margin is not a suitable allocation key for dividing common expenses between ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the international transactions and arrived at the ALP. This resulted in the AO making an order which included transfer pricing adjustment of Rs.2,63,21,723/-. The assessee challenged this draft assessment order, which was however rejected on 27.08.2012.The final assessment was therefore completed on 28.09.2012. The assessee appealed. 3. As far as the first question is concerned, while arriving at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt in Commissioner of Income Tax vs. EHTP India Pvt. Ltd. (2013) 350 ITR 41(Del.). In that decision, the Court indicated broadly that if headcount had been the basis for proportionate allocation of costs, there was no objection or illegality attached to it. The Court of course in that case was cognizant of the circumstances that the principle of headcount had been applied consistently in the past ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i (2016) 384 ITR 102. At the same time, the Court did say so on the basis that the assessee had not followed the consistent method; and that the issue of allocation of such expenditure was in the context of deduction claimed under Section 80(4). This Court is of the opinion that the two possible choices, i.e. turnover method as well as the headcount method in the present case was not justified. Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as argued and perhaps quite correctly that this comparable was included by the TPO relying upon the material available at that time from the internet. If such were the decision, the assessee could possibly also have relied upon material similar to such material. In any event, this Court does not propose to pass any final decision on the merits. Pursuant to the remand, it is open to the authorities ..... X X X X Extracts X X X X X X X X Extracts X X X X
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