TaxTMI 
TaxTMI 
TaxTMI 
2016 (5) TMI 39
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....nds of appeal. The AO has also filed an appeal for the year under consideration. Assesseecompany, engaged in the business of trading of petrochemicals, filed its return of income, declaring income of Rs. 37. 20 crores. The AO completed the assessment, on 28. 02. 2001, u/s. 143(3)r. w. s. 144C(13)of the Act, determining the income of the assessee at Rs. 2, 09, 15, 37, 490/-. 2. First ground of appeal is about addition made on account of undervaluation of equity shares considered as deemed loan and interest computed thereon. At the time of hearing before us, representatives of both the sides agreed that the issue stands covered in favour of the assessee by the judgment of the Hon'ble Jurisdictional High Court, delivered in the case of Vodafo....
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....O accepted the ALP of 238 cases. For remaining seven transactions, he made adjustments. After receiving the order of the TPO, the AO issued a draft order to the assessee. It filed objections before the DRP for each transactions. The DRP deleted the addition in respect of one transaction. However, adjustment made by the TPO for the remaining six transactions were upheld. First of them was transaction no. 1. The assessee had imported 4. 98 lakh Kgs. of Sovesso100 @ Rs. 43. 09 pre kg. As the comparable data of 05. 05. 2008 was not available, so, the assessee used the data of 01. 08. 2008. The rate charged by the AE. (Rs. 43. 09 per kg)was lower than the rates prevailing on the First August, 2008, (Rs. 58. 58)the assessee claimed that the tran....
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.... we are of the opinion that the data based on nearness of the date was a justifiable and reasonable data to decide the ALP of the transaction. Secondly, we find that TPO himself had accepted the CUP dated 01/08/2008 for the transaction entered in to by the assessee on 24. 06. 2008, that the quantity involved in the transaction was 5 lakh Kgs. (Pg. 92 of the Paper book). In these circumstances, we are of the opinion, that the data of nearest date has to be taken as valid comparable. Considering these peculiar facts, we are of the opinion that the decision of the DRP cannot be endorsed. 4. Second transaction is of purchase of 19. 54 lakh Kgs. of Toluene @Rs. 47. 86 per Kg. The material was purchased on 05. 06. 2008. As the data for that day ....
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....ase. We find that the TPO himself had used average of three transactions for benchmarking the transaction of Mono Ethylene Glycol. Considering all these facts we hold that the approach of the TPO and the DRP was not as per the provisions of the Act. 5. Next transaction is about import of 1 lakh Kgs. of Maleic Anhydride. The assessee had purchased the goods@ Rs. 76. 55 per Kg. It arrived at the average rate of Rs. 76. 88 per Kg. as the CUP rate. The TPO adopted the rate of Rs. 68. 76 per Kg. which was the lowest rate of all the transactions of 01. 08. 2008. The DRP upheld the order of the TPO holding that the assessee had mentioned that average taken by it considered the volume to transactions also. 5. 1. Before us, the AR stated volume of....
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.... the data of 31. 1. 2009. As against the rate of Rs. 26. 71 per Kg the TPO took the average of Rs. 21. 74 per Kg based on the data of 23. 1. 2008. The DRP following its order for the earlier transaction upheld the order of the TPO. 7. 1. Before us, the AR contended that the assessee had used CUP dated 30. 1. 2009, that the TPO had used 23. 1. 2009, but the date used by the TPO was further away than the CUP which the assessee had used. The DR supported the order of the DR. 7. 2. We find that the assessee had imported MEL on 27. 1. 2009 @ Rs. 25. 87 per Kg, that the CUP rate as on 30. 1. 2009 was Rs. 26. 71 per Kg, that the rate adopted by the assessee fits within the +/- 5% of the CUP range. In our opinion the date chosen by the assessee w....