TaxTMI 
TaxTMI 
TaxTMI 
2017 (9) TMI 1282
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....nt year 2010-11 on the grounds inter alia that :- "1. That on the facts and circumstances of the case and in law, the AO has erred in assessing the total income of the Appellant under section 143(3) of the Income-tax Act, 1961 ("the Act"), for the relevant assessment year at INR 22,07,25,680 as against the returned loss of INR 22,93,287. 2. That on the facts and circumstances of the case and in law, the AO has erred in passing the final assessment order which is not in conformity with the draft assessment order. 3. That on the facts and circumstances of the case and in law, the order passed by the AO being not passed in conformity with the provisions of section 92CA(4) of the Act, is void ab-initio and bad in law. 4. That on the ....
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....f the case and in law, the AO / TPO have erred in not providing the benefit of (+/-) 5% range as provided by the proviso to section 92C(2) of the Act. 9. That on the facts and circumstances of the case and in law, the AO has erred in levying / computing interest under sections 2348 and 234C of the Act." 2. Briefly stated the facts necessary for adjudication of the controversy at hand are : This is second round of litigation before the Tribunal because earlier assessment order passed by AO in consonance with the directions issued by DRP/TPO was set aside to pass a fresh order and thereafter assessment order dated 27.06.2017 has been passed in consonance with the order dated 28.09.2015. 3. Initially Assessing Officer has passed assessme....
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....uage Infocom Limited Details not available 3 Computer Point Limited 1.16% 4 CCS Infotech 3.78% 5 Empower Industries India Limited 1.86% 6 Kodak India Private Limited Significant RPT 7 Mobile Telecommunications Limited 3.28% 8 MVL Industries Limited Significant RPT 9 Salora International Limited -0.09% Average OP/OR (%) 2.50% 7. Consequently, TPO made cumulative adjustment as under :- S.No. Nature of transaction Adjustment u/s 92CA 1 AMP adjustment protective basis on Rs.22,30,18,964 2 AMP adjustment substantive basis on Rs.8,67,88,051 8. AO on the basis of TP order dated 20.03.2017 made addition of Rs. 22,30,18,964/- to the taxable income/loss declared by....
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....ease note that margins earned by Nikon India falls within the +/- 5% range, as permitted under the provisions of the Act...... The contention of the assessee has been considered and the same is found to be correct after verification form records. The margins of the assessee (-1.76%) fall in the range of +/- 5% of the average margins of comparables. Therefore, in view of the above, the 4earlier adjustment of Rs. 8,67,88,051/- is reduced to NIL. Sd/- (Sandeep Rana) Deputy Commissioner of Income Tax, Transfer Pricing Officer -1(3)(2), New Delhi." 13. Since substantive adjustment to the tune of Rs. 8,67,88,051/- proposed by ld. TPO in his earlier order has been reduced to nil, both the grounds have since become infructuous a....
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....st, as has been done on protective basis, because of Hon'ble High Court has not approved the application of the bright line test in several decisions." 17. Furthermore, Hon'ble Delhi High Court in Sony Ericsson Mobile Communications India (P.) Ltd. vs. CIT-III - (2015) 55 taxmann.com 240 (Delhi) also determined the identical issue as to applying the BLT for determining ALP of the AMP in favour of the assessee and has categorically held that BLT has no statutory mandate and it is not obligatory to subject AMP expenses to BLT and considered non-routine AMP as separate transactions by making following observations :- "III. Section 92C of the Income-tax Act, 1961 - Transfer pricing - Computation of arm's length price (Comparables and ad....