TaxTMI 
TaxTMI 
2018 (8) TMI 1624
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...., stevedoring & cargo handling, clearing & forwarding and other port related activities. Jaldhi Overseas Pte Ltd ('Jaldhi Overseas') engages Bothra India for vessel handling at the port, to provide various vessel related services until the vessel embarks on its journey. The operations carried out by Bothra India are independent contractor while dealing with unrelated enterprises as well as Jaldhi Overseas. The Assessing officer passed the assessment order on 30/12/2016 for the assessment year 2012 u/s 143(3) r.w.s. 153A & Section 144C. Similarly, he passed an order for the ay 2010-11 on 27/12/2016 and for ay 2012-13 on 26/12/2016. Aggrieved the assessee filed this appeal on the following revised grounds:- 1. On the facts and circumstances of the case, and in the law, the Ld. A.O. /Ld. Panel erred in initiating proceedings under Section 153A of the Act even though it was time barred. The Appellant therefore prays that the assessment order be treated as void-ab-initio and bad in law. 2. On the facts and circumstances of the case, and in law, the Assessment Order passed by the Ld. Assessing Officer ('AO') under the directions of and Hon....
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.... analysis) of the Appellant; x. not including certain comparables selected by the Appellant in its transfer pricing study report based on the FAR analysis; xi. arbitrarily including a company viz. Apollo Logi solutions Limited, as comparable which was functionally different and which did not find place in SCN issued by the Ld. TPO and thereby violating principle on natural justice. The Appellant therefore prays that the Ld. Aa / Ld. Panel / Ld. TPO be directed to treat the value of international transactions at arm's length. 8. Without prejudice to the generality of the foregoing ground, on the facts and circumstances of the case and in law, the Ld. Dispute Resolution Panel has erred in affirming the action of the Ld. Transfer Pricing Officer / Ld. Assessing Officer in including Aegis Logistics Ltd in the final set of comparables ignoring the fact the functions, assets and risk of the company are not comparable with the appellant company. 9. Without prejudice to the generality of the foregoing ground, on the facts and circumstances of the case and in law, the Ld. Dispute Resolution Panel has erred in affirming the action of the Ld. T....
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....ore prays that the Ld. AO / Ld. Panel be directed to allow the depreciation on Tata & JB Loaders at the rate of 30% as claimed in the return of income. 16. On the facts and in circumstances of the case, the Ld. Panel erred in confirming the action of the Ld. AO in applying interest under section 234B of the Act. The Appellant therefore prays that the Ld. AO be directed to delete the levy of interest u/ s. 234B of the Act. 17. On the facts and in circumstances of the case, the Ld. AO erred in initiating penalty proceedings under section 274 r.w.s. 271 of the Act. The Appellant therefore prays that the Ld. AO be directed to delete the initiation of penalty proceedings u/s. 274 r.w.s. 271 of the Act. The Appellant craves leave to add to and/or to alter, amend, rescind, modify the grounds herein above or produce further documents before or at the time of hearing of this Appeal. 3. Though the assessee has raised a number of grounds before us, it had contested only the issue of determination of Arms length price under Transfer Pricing Provisions No other ground was argued or contested during the course of hearing of the case. 3.1. All th....
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....The containers arrive at the port by truck, rail or ship and are stacked in the port storage area. * Clearing and Cargo handling: These includes submission of export application, customs clearances, and other/formalities at the port on behalf of the exporters /importers. * Vessel Agency services: Bothra India's shipping division take care of all vessel related requirements. These operations are undertaken to ensure quick berthing of vessel and efficient cargo handling which includes vessel operation handling, monitoring and reporting, receipt of owner funds, verification of PDAs and managing payments, cargo document verification, statement of facts etc. for correctness, issuance of letter of protests, assisting coordination with master for signing bill of lading etc. The functional profile of Aegis as brought out by the DRP at page 5 of its order is as follows:- "Aegis Logistics is engaged in the sale of liquefied petroleum gas (LPG), wholesale of solid, liquid and gaseous fuels and related products, and storage and warehousing of products, such as general merchandise warehouse and warehousing of furniture, automobiles, gas and oil, chemical and te....
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....labar' should not be included in the final list of comparable for the following reasons: a. The turnover of the assessee company is Rs. 275 Crores whereas of 'Malabar' is Rs. 1.96 Crores. Reliance is placed on the judgment in the case of CIT vs. Patni Computer Systems Ltd. v. Dy. CIT [2012] 19 taxmann.com 180 & CIT v. Pentair Water India (P.) Ltd. (2016) 381 ITR 216 (Bom.) b. 'Malabar' is a 100% subsidiary of M/s. Aspinwall Ltd. M/s. Aspinwall was taken as a comparable both by the assessee as well as by the T.P.O. and this holding company reported a profit margin of 3.13% on a turnover of Rs. 80 Crores and whereas 'Malabar', the subsidy company reported margin of 42.33% on a low turnover of Rs. 1.96 Crores. This anomaly, will require investigation, as laid down by the Hon'ble Delhi High Court in the case of [2015] 60 taxmann.com 355 (Delhi) Rampgreen Solutions (P.) Ltd. v. Commissioner of Income-tax. It was submitted that profits are abnormal as 'Malabar' had utilized all the workforce and facilities of the holding company and as 'Malabar's' working is widely influenced by the holding company which resulted in huge profit margins. It was submitted that even small ....
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....ores while in the case of the Assessee the turnover is around Rs. 11 crores. Therefore, on the basis of the turnover filter itself this company cannot be regarded to be comparable to the Assessee company and accordingly, we do not find any infirmity in the finding of CIT (A) while he excluded this company on the turnover criteria following the decision of this tribunal in : Sony India (P.) Ltd. v. Dy. CIT [2008] 114 ITD 448 (Delhi) E-Gain Communication (P.) Ltd. v. ITO [2008] 23 SOT 385 (Pune) Deloittee Consulting India (P.) Ltd. v. Dy. CIT [2013] 144 ITD 451/36 taxmann.com 68 (Hyd.) Genisys Integrating System (India) (P.) Ltd. v. Dy. CIT [2012] 53 SOT 159/20 taxmann.com 715 (Bang.) 6. The said findings of the Tribunal in respect of the said three Companies are on the basis of appreciation of evidence on record. We find no infirmity in the said findings of the Tribunal on that count. In fact, the Tribunal has endorsed the views of the CIT Appeals whilst coming to such conclusions. The concurrent findings of facts arrived at by the Authorities below, cannot be re- appreciated by this Court in the present Appeal." 8.2. Applying the prop....