TaxTMI 
TaxTMI 
2013 (8) TMI 442
X X X X Extracts X X X X
X X X X Extracts X X X X
....ellant for AY 2006-07 under section 92CA(3). II. On the facts and in the circumstances of the case, the Ld. TPO and the Ld. AO have erred in proposing and the Hon'ble DRP has erred in confirming the rejection of a comparable company namely, Nicco Corporation Limited (from the set of comparable companies for Power segment) solely on the basis of the financial results (i.e. losses incurred) of the said comparable company, thereby disregarding the provisions of the Rule 10B(2). III. On the facts and in the circumstances of the case, the Ld. TPO and the Ld. AO have violated the proviso to Section 92C(2) by restricting the applicability of variation of +/- five percent only on the international transactions of purchases undertaken by the appellant and not applying the same on the international transactions of sales undertaken by the appellant. IV. On the facts and in the circumstances of the case, the Ld. TPO, the Ld. AO and the Hon'ble DRP have violated the Proviso to Rule 1OB(4) of the Rules by not allowing use of comparables' data relating to two years prior to the financial year 2005-06, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... failed to appreciate and ought to have held TDS was deducted on all the items disallowed by the Ld. AC. However, due to voluminous nature, only sample evidences were submitted before the Ld. AC and Hon'ble DRP. IX. c. The appellant, therefore, prays that the Ld. AC be directed to delete the aforesaid disallowance. X. Set off of accumulated losses and depreciation allowance: X. a. On the facts and circumstances of the case and in law, the Ld. AC erred in disallowing carry forward and set off of accumulated losses of Rs. 6,51,53,017/-and unabsorbed depreciation of Rs. 1,21,44,325/- aggregating to Rs. 7,72,97,342/- of Alstom Transport Limited on the alleged ground that accountant's certificate in Form No. 62 as prescribed under Rule 9C of the Income-tax Rules, 1962 was not furnished. X. b. The appellant, therefore, prays that aforesaid set off of unabsorbed losses and depreciation allowance be allowed. Other Grounds: XI. a. The above 'Grounds of Appeal' are all independent and without prejudice to one a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s, which is beyond 5% of the AE costs of Rs. 69.32 crores." 4. Firstly, it is the case of the assessee that Ld. TPO while making the adjustment has considered the entire turnover whereas according to well established law TP adjustment can be made only in respect of transactions entered into by the assessee with its AEs. Such proposition is contended to be supported by various decisions relied upon by the Ld. AR as under: Sr.No. Name Citation 1. Emerson Process Management (India) P. Ltd. v. DCIT [2012] 53 SOT 281 2. SMCC Construction India Ltd. v. ACIT [2011] 44 SOT 63 (Del) 3. II Jin Electronics (I) (P) Ltd. v. ACIT [2010] 36 SOT 227 (Del) 4. India Japan Lighting Pvt. Ltd. v. DCIT (ITA No.2154/Mds/2011) 5. Phonenix Mecano (India) Ltd. v. DCIT [2012] 49 SOT 515 (Mum) 6. ACIT v. Super Diamonds [2012] 53 SOT 243 (Mum) 7. DCIT v. Twinkle Diamonds [2012] 53 SOT 243 (Mum) 4.1 The second submission of Ld. AR is that even if the mean margin taken by TPO in respect of comparables is adopted and the same is applied to the transactions of the AE then adjustment will come only to a sum of Rs. 32.00 lacs, which is muc....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... AR did not press these grounds as required relief is available to the assessee on adjudication of Ground No.5, which is decided in favour of assessee. Therefore, other grounds are dismissed being not pressed. 7. Rest of the grounds relate to corporate issues and these grounds were argued by Shri Yogesh Thar. In respect of Ground No.6 & 7 it was submitted by Ld. AR that these grounds relate to violation of rule of natural justice as assessee was not given reasonable and sufficient opportunity for producing the relevant material to show that none of the additions which have been contested in this appeal was liable to be upheld. 8. So far as it relates to Ground No.8, it is the case of Ld. AR that all the payments which have been made subject to disallowance are made before the due date of filling return. He submitted that even in respect of employees contribution, according to recent decision of Hon'ble Himachal Pradesh High Court in the case of CIT v. Nipso Polyfabriks Ltd. ,350 ITR 327 (HP), the payments made before the due date of filing the return are allowable. He submitted that the matter may be restored back to the file of AO for verification that all the payments h....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 16/10/2009 Photostat copy of CA's certificate in Form No.62 dated 16/12/2009 was submitted. According to AO as per rule 9C such certificate was required to be furnished with the returns of income. As the return was filed electronically the assessee may not fie such certificate along with the return, therefore, AO observed that such certificate should have been ready before filing the return of income. The assessee did not state any reasonable cause for not obtaining such certificate before due date of filing the return. Thus, AO disallowed a sum of Rs. 6,51,53,017/- on account of accumulated losses and a sum of Rs. 1,21,44,325/- on account of unabsorbed depreciation pertaining to Alstom Transport Ltd. 15. It was pleaded by Ld. AR that during the course of draft assessment proceedings the assessee though had obtained such certificate before due date of filing the return but the same could not be located. Therefore, to fulfill the statutory condition certificate dated 16/12/2009 was submitted. However, in the proceedings before Ld. DRP the earlier certificate, copy of which is filed at page-171 of the paper book, was submitted. Ld. AR submitted that the condition regarding fi....