TaxTMI 
TaxTMI 
2021 (4) TMI 151
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....t, 1961, by Deputy Commissioner of Income-tax, Large Taxpayers Unit, Circle - 1, Bangalore ("AO") (hereinafter referred to as the Impugned Order) in pursuance of the directions issued by Dispute Resolution Panel ("DRIP"), Bangalore under Section 144 C (5), dated 24 November 2015 on the following grounds: That on the facts and circumstances of the case and in law: 1. The order of the learned AO is based on incorrect interpretation of law and therefore is bad in law. 2. The learned AO has erred in assessing the total income at Rs. 46,19,68,010!- as against returned income of Rs. 37,76,59,670/- computed by the Appellant and has thus erred in computing the total tax payable (including surcharge and cess) by the Appellant as Rs. 3,68,85,910/-. 3. The Learned AO has erred, in levying interest under section 234B of the Act amounting to Rs. 1,34,16,328/-. Grounds relating to transfer pricing matters: 4. The Hon'ble DRP has erred in law and in facts, by providing a consolidated direction for 2nd 3rd 4th and 5th grounds of objections filed by the assessee, directing the Transfer Pricing Officer ("TPO") to determine the Arm's Lengt....
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....omparable Uncontrolled Price ("CUP") method without justifying how the same was the most appropriate method. 11. The learned AO/TPO have erred in law and in facts by considering CUP method without undertaking comparability analysis for identifying comparable transactions and determining the ALP of ME and GSMAF as Nil. 12. The learned AO/TPO have erred in law and in facts by not taking cognizance of the ruling of the jurisdictional Income Tax Appellate Tribunal in Appellant's own case for AY 2007-08 and AY 2009-10 which was brought to their notice wherein the Hon'ble Tribunal has clearly held that the AO/TPO cannot question the necessity of the expenditure or the benefits derived, cannot consider the ALP at 'Nil' and is required to determine the ALP by applying the methods recognized under the Act. 13. The learned AO/TPO have erred, in law and in facts, by making an addition of Rs. 7,91,35,133 to the total income of the Appellant on account of adjustment in the ALP for the international transaction of payment towards ME and GSMAE by the AE. 14. The learned AO/ TPO have erred in law, by not providing an opportunity of being heard to....
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....ased on the facts and circumstances of the case and in law, Yokogawa India Limited ("Yokogawa India" or the "Company" or the "Appellant") respectfully craves leave to prefer an appeal under section 253 of the Income-tax Act, 1961 ("Act") against the order passed on August 31, 2016 (" impugned order") under Section 143 (3) read with Section 144 C of the Income Tax Act, 1961, by Assistant Commissioner of Income-tax, Large Taxpayers Unit, Circle - 1, Bengaluru ("AO") (hereinafter referred to as the Impugned Order) in pursuance of the directions issued by Dispute Resolution Panel ("DRP"), Bengaluru under Section 144 C (5), dated August 24, 2016 on the following grounds: 1 The learned AO has erred in law, by passing the final assessment order after the expiry of the period specified under the Act and accordingly is bad in law. Grounds relating to transfer pricing matters: 2. Impugned order erroneously rejects the Transfer Pricing ("TP") documentation maintained by the assessee and upholds undertaking a new search beyond the due date prescribed for maintaining the TP documentation. 3. Impugned order erroneously proceeds on presumptions, choosing compan....
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....rred, in law, and in facts, in computing interest of INR 3,96,93,174 under Section 234B of the Act. 15. The learned AO has erred, in initiating penalty proceedings under section 271(1)(c) of the Act. The Appellant submits that each of the above grounds is independent and without prejudice to one another. The Appellant craves leave to AO, alter, amend, vary, omit or substitute any of the aforesaid grounds of appeal at any time before or at the time of hearing of the appeal, so as to enable the Hon'ble Tribunal to decide on the appeal in accordance with the law." Assessment year 2011-12: Brief facts of the case are as under: 2. Assessee is in the business of manufacture, training and distribution of process control instruments. It filed its return of income for year under consideration on 29/11/2011 declaring total income of Rs. 37,76,59,670/-. The assessment was taken up for scrutiny, and notices under section 143(2) of the Act was issued to assessee. As international transaction entered into between assessee and AE exceeded Rs. 15 crores, the case was referred to transfer pricing officer to determine arm's length price. 3. On receipt of th....
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....M No.4277/2015 (Delhi High Court). v) M/s. July Systems & Technologies Pvt. Ltd. in IT(TP)A No.368/Bang/2016." 9. On the contrary, the Ld.CIT DR placed reliance on orders passed by authorities below. 10. We have perused submissions advanced by both sides in light of records placed before us. We note that this is a legal issue that goes to the route cause of the case. We, therefore, adjudicated this ground first. We note that coordinate bench of this Tribunal dated 21/12/2020 in case of M/s Xchanging solutions Ltd. vs DCIT in ITA (TP) A No. 2664/Bang/2017 on and identical situation observed and held as under : "5. We have heard both the parties and perused the material on record. Similar issue came up for consideration in the case of Flextronics Technologies (India) Pvt. Ltd. Vs. ACIT in IT(TP)A No.832/Bang/2017 dt.31.12.2018 has held in paras 9 to 12 as under: 9. We have considered the rival submissions. We find that on identical facts, this Tribunal in the case of Software Paradigms Infotech (P.) Ltd. (supra) has quashed the final order of assessment observing as follows:- "3.3.1 We have heard the rival contention of both parties in the ma....
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....ed 17/1/2014 in the case on hand. W hold and direct accordingly. Consequently, ground No. 17 of assessee's appeal is allowed." 10. Respectfully following the aforesaid view of the Tribunal, we quash the impugned order of assessment. Since the impugned order of assessment is quashed on the ground that the same is not in conformity with the provisions of section 144C of the Act and further on the ground that the time for passing the final order of assessment is barred by time, we are of the View that the other issues raised by the assessee in its grounds of appeal and the grounds raised by the revenue in its appeal does not require any consideration. As far as the decision cited by the learned DR in the case of H & M Hennes & Mauritz India (P) Ltd. (supra) is concerned, we find that in the said decision, the counsel for the Assessee has in para 3.8 of the said order prayed for setting aside the final order of assessment of AO to pass orders in accordance with the directions of the DRIP. Thus, it is a case of concession by the Assessee and not on the basis of arguments advanced by the parties. The law is well settled that a decision on concession of the counsel c....
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....ate order in accordance with law having regard to the directions of the DRP. Assessee is directed to file all necessary details in support of its claim. Needless to say that proper opportunity of being heard must be granted to assessee. As we have wished decided the preliminary issue raised in Ground No.5, the other grounds raised are kept open. Accordingly appeal filed by assessee for assessment year 2011-12 stands allowed for statistical purposes. Assessment year 2012-13: 12. Present appeal arises out of the final assessment order dated 31/08/2016 passed by Ld. ACIT under section 143 (3) read with section 144C of the Act. At the outset, the Ld.AR submitted that, assessing officer has not completed the assessment within the period of limitation. Brief facts of the case are as under: 13. During assessment proceedings the Ld.AO noted that assessee had international transaction exceeding Rs. 15 crores, and the case was referred to the Transfer Pricing officer to determined arm's length price. Subsequently, an order under section 92CA was passed on 29/01/2016, proposing Adjustment of Rs. 15,82,32,432/- towards purchase of traded goods, management support fee and exce....
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....on 13/04/2016, thereby causing 2 days delay. The view taken by DRP that it has no power to condone the delay is inasmuch as such power is absent under section 144C of Income Tax (DRP) Rules 2009 cannot be found fault with. Hon'ble Pune Tribunal in case of TDK Electronics AG vs ACIT (supra) has dealt in detail with the various provisions, Act, wherein, the legislature has conferred the power of condoning delay to various authorities under the Act. Hon'ble Pune Tribunal in case of TDK Electronics AG vs ACIT (supra) on identical issue has held as under: "15. The scheme of the relevant provisions in this regard is that when the AO makes a reference to the TPO, the latter passes an order u/s. 92CA(3) of the Act. On receipt of the order from the TPO, the AO passes a draft order u/s. 144C(i). If dissatisfied with the draft order, the assessee has an option to either approach the DRP route by filing objections before the DRP or choose the appellate recourse by filing an appeal before the CIT(A). If an assessee opts to be governed by the procedure enshrined for the DRP reference, then the DRP is supposed to issue directions within nine months from the end of the month in which t....