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TMI Blog2017 (6) TMI 1381X X X X Extracts X X X X X X X X Extracts X X X X ..... hen he cannot take a different stand in the case of the other party to the transaction, i.e, the assessee therein in the case on hand and accordingly set aside the orders of the AO/TPO on this issue. Consequently, the grounds raised by the assessee are allowed as indicated above. Assessee appeal allowed. - IT(TP)A No. 1506/Bang/2012 - - - Dated:- 14-6-2017 - SHRI JASON P BOAZ, ACCOUNTANT MEMBER AND SHRI LALIET KUMAR, JUDICIAL MEMBER For the Appellant : Shri Sanjay Mehta, C.A For the Respondent : Ms. Neera Malhotra, CIT ORDER PER SHRI JASON P BOAZ ACCOUNTANT MEMBER : This appeal by the assessee is directed against the final order of assessment for asst. year 2008-09 passed u/s 143(3) r.w.s 144C of the Incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... directions u/s 144C (5) r.w.s 144C (8) of the Act on 4/7/2012 rejecting the objections raised by the assessee and upholding the TP adjustment proposed by the TPO. In pursuance thereof, the AO passed the final order of assessment for asst. year 2008-09 u/s 143(3) r.w.s 144C of the Act vide order dated 13/9/2012 including the T.P adjustment of Rs. 12,64,09,623/-, thereby determining the assessee's income at NIL after setting off carry forward losses of Rs.9,72,78,877/- pertaining to asst. year 2007-08. 3.1 Aggrieved by the final order of assessment for asst. year 200809 passed u/s 143(3) r.w.s 144C of the Act vide order dated 13/9/2012, the assessee has preferred this appeal, raising the following grounds:- 3.2 The Id AR for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which was reported as international transaction. This issue in dispute, we find, is arising from the same arrangement between the assessee and its AE which was considered by co-ordinate benches of this Tribunal in the assessee's own case for asst. years 2004-05 to 2007-08 vide order in No.1 104/Bang/2011 and 284 to 286/Bang/2012 dated 30/8/2013 at para 13 to 15 thereof. We also observe that the aforesaid co-ordinate bench decision in the assessee's own case for asst. years 2004-05 to 2007-08 (Supra) was followed by another co-ordinate bench in its order in IT(TP)A No.347/Bang/2014 dated 5/5/2017 in the assessee's own case for asst, year 2009-10, 3.4.2 In its order in ITA No.347/Bang/2014 dated 5/5/2017 in the assessee's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we find that the TPO has accepted the expenditure incurred by the AE to be at arm's length but has not accepted the income of the assessee to be at arm's length. Both the assessees are different legal entities with different components of expenditure and income. But when a transaction is entered into with an AE, it has to be at arm Fs length from each other. If the transaction is found to be at ALP in the hand of one of the porties, then the other end of the transaction also has to be considered to be at arm's length. Therefore, when the TPO has accepted the transaction to be at arm's length in the hands of the AE, then the transaction will have to be accepted to be at arm's length in the hands of the assessee also, In v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pment during the original period and extended period of overstay. (v)Loss suffered during original contract period and the extended contract period to meet cash flow deficit. In support of his contention, the assessee had filed the following evidence : (i)Arbitration claim filed by UEM with Dispute Adjudication Board on Sep. 17, 2010 for an amount of 005.86 crores. (ii)Arbitration claim filed by OEM with Hon'bie Arbitral Tribunal on 15-3-2012. Part of the Arbitration claim is filed by OEM and it is submitted that the assessee is in the process of filing part Il of the arbitration claim with the Arbitral Tribunal (iii). A response from NHAI to notice u/s 133(6) issued by the Joint Commissioner of income-tax, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rofit margin of the assessee and also the average margins of the comparable companies or in the alternative, award of the Arbitral Tribunal should also be taken into consideration as the income of the assessee for of the ALP adjustment. As neither the AO/TPO nor the first appellate authority have considered these circumstances of the assessee for the loss and also {n view of the evidence filed before us such as fetter of NHAI stating that the cost was much higher than the contract awarded to the assessee, we are of the opinion that the ALP determined by the TPO/AO was not justified. in such circumstances, the normal course of action wou!d be to remand the issue to the file of the TPO/BO to determine the ALP after taking the above facts into ..... X X X X Extracts X X X X X X X X Extracts X X X X
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