2014 (3) TMI 967

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....39;ble ITAT in assessee's own case for A.Y. 2008-09 wherein the assessee had raised similar grounds before the Hon'ble ITAT in I.T.A.No327 of 2013 for A.Y. 2008-09. 3. By inviting to our attention to the order of ITAT, it was submitted that adjustment of ALP to the income of the assessee should be restricted to the international transactions and not to the total turnover of the entity. We find that this issue was dealt by the Tribunal at page 26 para 31 of the order, wherein the AO/TPO was directed to restrict the adjustment only to the quantum of its international transaction. 4. Our attention was also invited to page 18 para 18 of the order of the Tribunal, wherein the issue of functional comparability of M/s Gemini Communic....

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....ing the above decision if M/s Gemini Communications is not considered as comparable to the assessee the revised arithmetic mean of comparables will be as under:- Sl. No. Name of Company OP/TC(%) 1. M-Tech Innovations Ltd. 6.15% 2. Valliant Communications Ltd. 15.93% 3. Sharon Solutions Pvt. Ltd. 10.83% Arithmetic Mean 10.97% If the revised Arm's Length Margin of 10.97% as computed above is taken than the different of 3.98% will further get reduced to 3.10%. However, in any case even if the Arm's Length Margin of 11.85% is considered, it falls within the tolerance margin of +5% as per section 92C(2). This benefit of tolerance margin as provided by section 92C(2) was claimed by the assessee....

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....08-09 in assessee's own case has held that the functional profile of M/s Gemini Communications Ltd. has not been properly dealt with by lower authorities and gave a direction to the TPO to reconsider the same and passed appropriate order. It was also brought to our notice that till date no such effect has been given to the order of the Tribunal. From the record, we also find that assessee had furnished a chart before the DRP which disclosed that the total turnover from AE's was Rs. 119.78 crores and it constituted only 39.13% of the total revenue. Thus, if at all any adjustment is made to the income of the assessee it should be restricted to the international transactions of the assessee. If the differential ALP of 3.10% as discusse....