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TMI Blog2020 (12) TMI 1371X X X X Extracts X X X X X X X X Extracts X X X X ..... (TP)A No.2442/BANG/2019 - - - Dated:- 11-12-2020 - SHRI CHANDRA POOJARI , ACCOUNTANT MEMBER AND SMT. BEENA PILLAI, JUDICIAL MEMBER For the Appellant : Shri K.R Pradeep Smt. Girija G.P, Advocates For the Respondent : Ms. Neera Malhotra, CIT (DR) ORDER PER BEENA PILLAI, JUDICIAL MEMBER Present appeal has been filed by assessee against final assessment order dated 31/10/19 passed by Ld.ACIT Circle 7(1)(2) under section 143(3) read with section 144C(13) of the Act, for assessment year 2015-16 on following grounds of appeal: 1. That the order of the Assessing Officer (AO),Transfer Pricing Officer (TPO), the directions of the Dispute Resolution Panel (DRP) and the order of the transfer pricing officer in so far as it is against the appellant is against the law, facts, circumstances, natural justice, equity, without jurisdiction, bad in law and all other known principles of law. 2. That the total income computed and the total tax computed is hereby disputed. 3. That the findings, reasons, conclusions and directions of Dispute Resolution Panel (DRP) u/s 144C are unsustainable in law requires to be set aside. Consequently the additions base ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n public domain at the time of preparing the report. iii)The learned TPO/DRP erred in rejecting companies having different financial year ending or whose data does not fall within the 12 month period of impugned financial year. iv) The learned TPO/DRP erred in not considering working capital adjustments. v)The Learned AO / TPO / DRP erred in failing to rely on binding decisions of the Hon'ble ITAT in appellants own case for the assessment years 2002- 03 to 2004 - 05, 2008-09 and subsequent orders of the ITAT for AY: 2005-06 2006-07. 12. (i) The Learned AO / TPO / DRP erred in making adjustment towards the royalty for use of technology amounting Rs.7,29,91,441/- without determining the comparable transaction in the public domain as prescribed under the Act and Rules. ii) The Learned AO/ TPO/DRP have failed to identify a comparable in terms of Rule 10B(3). iii) The 1d.AO/TPO/DRP erred in failing to rely on decision of the ITAT in appellant's own case for the years 2002-03 to 2004-05 and subsequent orders of the ITAT for AY:2005-06 2006-07. 13.(i) The Learned AO / TPO / DRP erred in making adjustment towards the Arms Length Price d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iv.The Learned AO / TPO / DRP erred in adopting TNMM as the MAM ignoring the findings of ITAT in the appellants own case for earlier years and accepted by department on the same issue. xv. The Learned TPO / DRP have failed to apply the provisions of Rule 10B(4) (5) 10CA(2) while selecting the criteria and filters: xvi. The Learned AO / TPO / DRP erred in not carrying out the adjustments like risk, working capital, etc., as required under law as well as the facts. xvii.The learned TPO/DRP erred in rejecting the price per unit adjustment carried out by the appellant xviii. The learned TPO/DRP erred in rejecting the import duty adjustment carried out by the appellant xix.The learned TPO/DRP erred in not considering the after sales support service segment while determining operating margin of distribution segment. xxi. The learned TPO/DRP erred in rejecting the corroborative analysis provided by the appellant. xxii) The Learned TPO./DRP erred in applying the trading income threshold of 75% to sales to select comparable. companies. 14.(i) The Learned AO / TPO / DRP erred in making adjustment towards the Arms Length Price difference in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gies Ltd h) Aspire Systems (India) Pvt Ltd I) Inteq Software Pvt Ltd j) Infosys Ltd k) Thirdware Solutions Ltd I) Cybage Software Pvt Ltd 15. (i) The Learned AO / TPO / DRP erred in making adjustment towards the Arm's Length Price difference in the Support Services/Specified Domestic Transactions amounting Rs.4,94,14,855/-. ii)The Learned TPO / DRP erred in making adjustment on Support Services/specified domestic transactions overlooking the statutory reports and these reports cannot be found fault with in the absence of any cogent or contrary evidence. iii. The Learned AO / TPO / DRP erred in not identifying a comparable as required under law. iv.The Learned AO / TPO / DRP erred in not considering the details, information and evidences furnished by the assessee. OTHER ISSUES/ADDITIONS/DISALL0WANCES 16. The Learned AO / DRP erred in disallowing provision for Onerous contract amounting to Rs.60,00,000/-. 17. The Learned AO / DRP erred in disallowing the sum of Rs. 7,49,33,375/- being 30% of Rs.24,97,77,917/- for non deduction of tax at source u/s.40(i)(ia) of the Act on the following provision for expense ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pment, therapy equipment and life science products. During the year under consideration assessee entered into international transactions with its AE and specified domestic transactions. 3. Ld.TPO/AO passed the order by making following additions: 1. TP adjustment royalty distribution segment software development segment support services (specified domestic transactions) 2. provision for Onerous Contract 3. Disallowance made u/s/40(a(ia) for non deduction of tax Advertisement expenses Legal and professional expenses Repairs and maintainance Miscellaneous expenses Dealer Commission 4. Relief under 90 5. TDS credit 4. At the outset, admittedly it is submitted that all issues raised by assessee in present appeal except for disallowance of provision for onerous contract are squarely covered by decisions of this Tribunal in assessee's own case for assessment years 2005-06 to 2014-15. It has been submitted that all issues have been set aside by this Tribunal to Ld.TPO for re-adjudication afresh. 5. We have perused submissions advanced by both sides in the light of the records pl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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