TaxTMI 
TaxTMI 
2013 (7) TMI 1101
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....y decided the issue on the basis of direction of Dispute Resolution Panel (DRP), Ahmedabad dated 25-9-2012. 2. The grounds raised by the assessee are as under:- "On the facts and in the circumstances of the case and in law, the Assessing Officer ('AO') grossly erred, in conformity with the directions of Hon'ble Dispute Resolution Panel ('DRP'), Ahmedabad under section 144C(5) of the Income-tax Act, 1961 ('the Act'), in making the upward transfer pricing adjustment of Rs. 15,87,39,602/- in respect of appellant's international transaction of sale of medical kits (comprising generic pharmaceutical products, hospital supplies and disposables) to its associated enterprise ('AE') Missionpharma A/S, De....
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....than Appellant, as the tested party. v. The Hon'ble DRP/Ld.TPO/Ld. AO erred, in law and in facts, by considering IDA Foundation Netherlands (a 'not for profit organisation'), as comparable to the AE (i.e. MPAS) for the purpose of economic analysis. vi. The Hon'ble DRP/Ld.TPO/Ld. AO erred, in law and in facts, in not considering and not making appropriate adjustments for functional, risk and economic differences between the AE (i.e. MPAS) and IDA Foundation Netherlands (a 'not for profit organisation'). vii. The Hon'ble DRP/Ld.TPO/Ld.AO erred, in facts and in law, by not considering that fresh search process conducted by Ld. TPO is unsystematic, vague, erroneous and results into only one....
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.... Ltd. v. Asstt. CIT [2013] 33 taxmann. com 479 (Ahd.). He submitted a copy of the Tribunal's decision. He further submitted that in paragraph 17 of the Tribunal's order, it was noted by the Tribunal that two issues are to be decided by the Tribunal, i.e, (1) Selection of the tested party, whether it should be the assessee or the 'AE'. (2) Selection of the comparables. He further submitted that regarding the first issue, i.e., Selection of tested party, it was held by the Tribunal that the assessee is least complex party as compared to the AE, and hence, the assessee should be selected as a tested party and regarding the second issue, i.e., selection of comparable, it was held by the Tribunal that IDA Foundation, Netherlands ....
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.... as well as DRP order but he could not point out as to how the issue in dispute is not covered in favour of the assessee by this Tribunal order in assessee's own case for earlier two years. 5. We have considered the rival submissions and we find that the DRP and TPO has adopted the AE as tested party and IDA Foundation Netherlands as comparable and on both these aspects, as per the Tribunal order in assessee's own case for earlier years, the assessee has to be accepted as a tested party and IDA Foundation, Netherlands cannot be accepted as a comparable. Out of six comparables noted by TPO at page No.4 of his order, the arithmetic mean was 3.44% and the same is within +5% range of the assessee's profit margin. Admittedly, out ....