TaxTMI 
TaxTMI 
2020 (4) TMI 230
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....ssessee at that point of time, the assessee preferred an additional ground before the ITAT on 13.09.2017. However, the Tribunal while adjudicating the additional ground of the assessee in respect of the assessment order passed by the AO dated 27.12.2016 directed the assessee to file separate appeal before the Tribunal and observed that "the delay in filing of the appeal shall be considered sympathetically as and when the appeal is filed before the appellate authority" and the Tribunal refrained from adjudicating the additional ground arising from the revised order u/s. 154 of the Act passed by the TPO/AO dated 14.07.2017. Therefore, the delay has been caused. We note that the Tribunal had adjudicated the appeal preferred by the assessee against the final assessment order passed u/s. 144C(5) r.w.s. 143(3) of the Act relating to AY 2012-13 on 18.04.2018. While passing the said order, the Tribunal observed that the assessee had filed following additional grounds of appeal and the Tribunal passed the following order: "3. The assessee filed the following additional grounds : "1. On the facts of the case and in law, the order of the Transfer Pricing Officer (hereinaf....
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.... and when the appeal is filed before the Appellate Authority." 3. For the reasons discussed supra we are of the opinion that delay caused to file the appeal is not deliberate and therefore we condone the delay and proceed to adjudicate the appeal. From a perusal of the grounds of appeal raised before us, we note that the assessee has raised the grounds of appeal assailing the adjustment of Rs. 3,87,07,126/- to the international transaction of the assessee with its Associated Enterprises (AEs) as per the direction by the Ld. DRP to include M/s. Gateway Distriparks Ltd. (in short GDL). 4. Brief facts of the case are that the assessee company was established in 1991 as a wholly owned subsidiary of TM International Logistics Limited (in short "TMILL"). The assessee company was engaged in providing freight forwarding services to both AEs and non-AEs. According to assessee, it acts as an interface, which is based on manpower driven activity like coordinating between the end customer and the various category of service providers i.e. companies engaged in warehousing, transportation CHA, container freight handling services etc. whose business are based on their assets like CHA licens....
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....mputed at Rs. 3,89,29,466/- vide order dated 14.07.2017. Aggrieved, the assessee is before us. 5. At the outset itself, the Ld. AR confined his contention in respect of comparables and according to him, if M/s. GDL is not included in the list of comparables the assessee would be well within the range of arms length. M/S. GATEWAY DISTRIPARKS LIMITED 6. According to Ld. AR, the DRP erred in directing this company to be included as a comparable. According to Ld. Counsel, the DRP has directed the inclusion of this company because the assessee had stated before it that it was into business of freight forwarding and since the DRP has already ordered the inclusion of M/s. Arshiya Ltd. and Om Logitic Ltd. were freight agents. According to DRP, to have uniformity in the selection of comparables it directed inclusion of M/s. GDL. According to Ld. AR, the functions of this company are different and asset intensive. The following facts were pointed out by the Ld. AR to contend that M/s. GDL were functionally different and asset intensive: i) As per the financials, entire business of the company is from Container Freight Stations ("CFS"), no other segment details are available....
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....ainer forwarding services. The company has taken over Punjab State Container & Warehousing Corp. Ltd.'s CFS at JNPT for 15 years from Feb. 2007. The company also has a rail subsidiary, Gateway Rail Freight Ltd. which has railway rakes/trailers beside other JVs. Out of total tangible assets of Rs. 262.35 cr. the company has building and land (174.27 cr.) vehicles (38.42 cr.) yard equipments, electrical installations and P&M (37.70 cr.). FAR is different. 8. The Ld. AR contended that since the facts and law are similar as that of AY 2012-13 the decision of Ld. DRP itself passed in the relevant AY 2012-13 was erroneous and, therefore, this comparable M/s. GDL should be excluded. Per contra, the Ld. DR could not controvert that the ld. DRP had rejected this company as a comparable for AY 2013-14 and has clearly held that the FAR is different from that of the assessee company. And the Ld. DR could not point out any difference in fact or law as of this year with AY 2013-14. 9. After hearing both the parties and after perusal of the records, we note that the assessee has taken consistent stand before the TPO as well as the Ld. DRP that M/s. GDL cannot be a comparable since it is fun....