2010 (12) TMI 1276

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....t year 2006-07. 1.1 The assessee has raised the following grounds in its appeal:- "On the facts and circumstances of the case and in law, the ld. Assessing Officer ('AO') has erred in passing the assessment order u/s 143(3) r.w.s. 144C of the Income-tax Act, 1961 ('the Act') after considering the adjustments proposed by the ld. Transfer Pricing Officer ('TPO') in his order passed u/s 92CA(3) of the Act and thereby approved by the Hon'ble Dispute Resolution Panel ('DRP'). Each of the ground is referred to separately, which may kindly considered independent of each other. That on the facts and circumstances of the case and in law, 1. The AO/DRP has erred in confirming the order passed u/s 92CA(3) of the ....

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....AO has erred by rejecting certain comparable companies identified by the assessee using turnover < Rs. 1 crore as a comparability criterion. 7. The TPO/AO has erred by rejecting certain comparable companies identified by the assessee as having economic performance contrary to the industry behavior. 8. The TPO/AO has erred by rejecting certain comparable companies identified by the assessee as having different accounting year (i.e., companies having accounting year other than March 31 or companies whose financial statements were for a period other than 12 months). 9. The TPO/AO has erred by rejecting certain comparable companies identified by the assessee using employee cost greater than 25 percent of the total rev....

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....without jurisdiction. (ii) The assessment has been completed on the non-existing entity and not on the amalgamating/successor company. Hence, the assessment order passed u/s 143(3) read with section 144C is void-ab-initio and the same is liable to be quashed." 1.3 It may be mentioned that the assessee had moved an application for stay of demand on 03.09.2010. This application was disposed off on 23.09.2010 by making the following interim order:- "5. We have gone through the record and having regard to the order of the DRP and the TPO, we are convinced that there is a prima facie case of the assessee before the Tribunal. We, therefore, restrain the department from enforcing the recovery of demand for this assessment year....

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....d, Macromedia Neitherland BV and its subsidiaries, all being associated concerns. In the course of assessment proceedings, it was found that the assessee entered into international transactions with the associated concerns and the aggregate value of such transactions was declared at Rs. 37,12,95,276/-. The valuation of these transactions was referred to the Transfer Pricing Officer, who determined the arm's length price at Rs. 40,13,40,643/-, resulting in adjustment of Rs. 3,00,45,367/-. Therefore, it was proposed to enhance the total income of the assessee by an amount of Rs. 3,00,45,367/-. The matter was referred to the Dispute Resolution Panel ("DRP" for short) under the provisions of section 144C of the Act. The DRP heard S/ShriVijay Iy....

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....er are on record and, therefore, the ground may be admitted as it raises merely a pure question of law. For the admission of the ground, reliance has been placed on the decision of Hon'ble Supreme Court in the case of National Thermal Power Corporation Ltd. Vs. CIT (1998) 229 ITR 383. The ld. DR objected to the admission of the ground and it was mentioned that the DRP has mentioned the name Adobe Software India Private. Limited (Now amalgamated with Adobe Systems India Private Limited). Therefore, mentioning the name of Adobe Systems India Private Limited in the assessment order is merely a typographical error. 3.1 We have considered the facts of the case. We find that the facts regarding the ground are available on the file and the issu....