TaxTMI 
TaxTMI 
2013 (8) TMI 697
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....on by the assessee are not applicable to the case of the assessee. He also referred to Annexure to Form 35A filed alongwith the appeal memo and submitted that in this Annexure the assessee has given its detailed arguments pointwise on the order of the Assessing Officer and TPO as to why the orders of the Assessing Officer and TPO were not acceptable to the assessee. The DRP has not considered and decided the objections of the assessee against the order of the Assessing Officer and TPO an therefore, it was his submission that the entire appeal of the assessee should be restored back to the file of the DRP for adjudication afresh. 3. The ld. DR also agreed with the above submission of the ld. A.R of the assessee. 4. After considering the rival submissions and perusing the orders of the lower authorities and materials available on record, we find that the assessee had challenged the order of the Assessing Officer/TPO before the DRP on the following grounds/issues: (a) Rejection of adjustment for extraordinary cost towards unutilized space. (b) Rejection of adjustment for extraordinary travel costs during start-up phase. &nbs....
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....gn exchange earnings. But the assessee submitted that. these filters were not properly applied. The panel considered that, and decided that the following comparables may be dropped: * Infosys Technologies Limited ("Infosys") - functionally dissimilar * Agnite Education Limited ("Agnite") - functionally dissimilar * 7Seas Entertainment Limited ("7Seas") - function any dissimilar * Cybertech Systems & Software Limited - high RPT Following comparables were decided to be added or retained: * Kals Information Systems Limited ("Kals") -- functionally similar * Indium Softwar (India) Limited ("'Indium") - significant foreign transactions * Melstar Information Technologies Limited ("Melstar") - foreign transactions * Maars Software International Li....
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....ficer and in such cases, the price declared by the assessee may be accepted. In the present case it is seen that the ALP of the international transactions undertaken by the assessee falls beyond the 5% margin of the price of international transaction computed by the assessee. Even in the case of M/s Global Vantedge Pvt Ltd. [2010-TIOL-24-ITAT-Del] it was held that benefit of +/-5% is not available as a standard deduction. The Hon'ble Delhi Tribunal in the case of Marubeni India Pvt. Ltd. (2011-TII-36- ITAT- Del-TP) held that, the benefit of + /- 5 % as per proviso to Section 92C of the Act cannot be considered to be a standard universal deduction allowed in each and every case which the assessee exceeds the permissible limit and falls outside the arm's length. The proviso provides a relief to the tax payer at the time of determining the ALP. Therefore, this option is available to the assessee only when assessee is computing the ALP and not when the AO/TPO is computing the "ALP". Thus, this objection of the assessee also is not valid. Directions under Section 144C (5) of the IT Act 19. Based on the above discussion, the direction of the Panel as per the pr....
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....as already been reproduced in the above part of this order. The matter was referred to the DRP u/s 144C of the IT Act. Under sub-section (1) of Section 144C, the Assessing Officer is under an obligation to forward a draft of the proposed order of assessment to the assessee if he proposes to make on or after the first day of October, 2009, any variation in the income or loss returned which is prejudicial to the interest of such assessee. Under sub-section (2) of Section 144, the assessee within 30 days of the receipt of such draft order can accept the variation made by the Assessing Officer or he can file objections either to Dispute Resolution Panel or to the Assessing Officer. Since the assessee had filed his objections with DRP, then, under sub-section (5) the DRP, upon receipt of objection is under obligation to issue directions as it thinks fit for the guidance of the Assessing Officer to enable him to complete the assessment and under sub-section (6) such directions which are put up under sub-section (5) would be further considering the following documents: (a) draft order; (b) the objection filed by the assessee; (c) the evidence furnished by the assessee; (d) report, if any,....
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....tions raised by the assessee and the reasons have also not been given as simply the order of TPO and Assessing Officer are referred. We find that similar issue was considered by the Hon'ble Delhi High Court in the aforementioned case of Vodafone Essar Ltd. (supra) against the order passed by the DRP-II and Ors. and the said Writ Petition has been decided by the Hon'ble High Court vide their order dated 2nd December, 2010. The assessee had filed a writ of certiorari seeking the quashing the order of DRP and the revenue contended before the Hon'ble High Court that the order in question deserve to be quashed and the matter was remanded for fresh adjudication. The said order of the Hon'ble Delhi High Court is reproduced below:- "JUDGMENT Heard Mr. Syali, ld. Sr. Counsel for the petitioner and Mr. Sanjeev Sabharwal, ld. Standing Counsel for the revenue. By this writ petition, the petitioner has prayed for issue of a writ of certiorari for quashment of the order dated 30th September, 2010 passed by the dispute resolution panel-II, the first respondent herein. What could have been a matter of debate was put to rest by Mr. Sanjeev Sabharwal, ld. Counsel for the ....