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TMI Blog2024 (1) TMI 1401X X X X Extracts X X X X X X X X Extracts X X X X ..... be for making any inquiry by himself or he may direct the AO for making further inquiry but in this case no inquiry has been carried out by the CIT(A). Therefore, we are of the opinion that the direction given by the CIT(A) not being in accordance with law, we set aside the finding of the CIT(A) and restore the matter back to him for deciding afresh after providing adequate opportunity of being heard to both the Revenue as well as to the assessee. Ground of appeal of the Revenue and cross objection of the assessee both are allowed for statistical purposes. - SHRI OM PRAKASH KANT (ACCOUNTANT MEMBER) AND MS. KAVITHA RAJAGOPAL (JUDICIAL MEMBER) For the Assessee: None For the Revenue: Mr. Akhtar Hussain Ansari, Sr. DR ORDER PER OM PRAKASH KAN ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the assessee has not demonstrated any valid justification for the same and without giving reasons for rejection of TPO's selection of assessee as tested party? 5. Whether, on the facts and circumstances of the case and in Law, la. CIT(A) has erred in directing comparison of profitability of M/s Ayacucho (assessee's foreign AE) while impliedly approving comparables operating in Indian geography? 6. Whether, on the facts and circumstances of the case and in Law, the ld. CIT(A) is justified in holding that the AO/TPO has erred, while determining the Arm's Length Price (ALP), by taking the assessee as the tested party as opposed to the analysis carried out by the assessee in which Ayacucho Preforms Co. Ltd, Thailand was considered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Transfer Pricing Officer) as comparable entities without appreciating that the functions, assets and risk analysis of the said companies are different from the functions, assets and risk analysis of the appellant-company. The cross objectors contend that on the facts and in the circumstances of the case and in law, the CIT(A) ought not to have upheld the action of the Assessing Officer and the Transfer Pricing Officer inasmuch as the CIT(A) has not appreciated the facts of the case in its entirety. 2. The CIT(A) erred in directing to compare the operating margin or the profit level indicator of the foreign associate enterprise considered as tested party with the operating margin or profit level indicator of the 14 Indian companies consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss of packing material and on the other hand the AR of the appellant argues that the appellant company is in the business of bottling and distribution of beverages in India and the submissions of the company is as under :- Aje india is a company whose functions are bottling and distributing beverages in India. Its main activity is the production of beverages, sodas, water, nectar beverages, citric drinks, rehydrating drinks, teas and energizing drinks to further sell in the Indian Market. Therefore, the comparable figures arrived by TPO are in the business of packing material etc and not directly connected with the appellant company but with the Associate Enterprises Ayacucho Preforms Ltd. and that the company's activity is as under: Ay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess accordingly. 4. We find that as per section 251 of the Income-tax Act, the Ld. CIT(A) in appeal against order of the assessment made confirm, reduce, enhance or annul but he can t restore the matter back to the Assessing Officer. Further section 250(4) of the Act prescribe for making any inquiry by himself or he may direct the Assessing Officer for making further inquiry but in this case no inquiry has been carried out by the Ld. CIT(A). Therefore, we are of the opinion that the direction given by the Ld. CIT(A) not being in accordance with law, we set aside the finding of the Ld. CIT(A) and restore the matter back to him for deciding afresh after providing adequate opportunity of being heard to both the Revenue as well as to the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X
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