2017 (6) TMI 1381

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....ers (Malaysia) Berhad. For asst. year 2008-09, the assessee filed its return of income on 30/9/2008 declaring loss of 1,346/-. During the year under consideration, the assessee as per its report in Form No.3CEB had entered into international transactions and, therefore, the Assessing Officer ('AO') made a reference to the Transfer Pricing Officer ('TPO') u/s 92CA(l) of the Act for determining the arms length price ('ALP') of the international transactions with its associated enterprises ('AE'). The TPO vide order u/s 92CA of the Act proposed a TP adjustment of in respect of the international transactions entered into by the assessee in the year under consideration. The AO accordingly passed the draft assessment order for asst. year 2008-09 vide order dated 30/1 1/2011. In response thereto, the assessee filed its objections in respect of the Draft Order of assessment before the DRP, B'lore. The DRP issued its directions u/s 144C (5) r.w.s 144C (8) of the Act on 4/7/2012 rejecting the objections raised by the assessee and upholding the TP adjustment proposed by the TPO. In pursuance thereof, the AO passed the final order of assessment for asst. yea....

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.... that the aforesaid co-ordinate bench decision in the assessee's own case for asst. years 2004-05 to 2007-08 (Supra) was followed by another co-ordinate bench in its order in IT(TP)A No.347/Bang/2014 dated 5/5/2017 in the assessee's own case for asst, year 2009-10, 3.4.2 In its order in ITA No.347/Bang/2014 dated 5/5/2017 in the assessee's own case for asst. year 2009-10, the co-ordinate bench, following its own earlier orders . in the assessee's own case for asst. years 2004-05 to 2007-08 (Supra), at para 4 its order, has decided the issue in dispute in favour of the assessee and against Revenue, holding as under:- 4.We .have heard the learned Departmental Representative as well as learned Authorised Representative and considered the relevant material on record. The assessee is a subsidiary of United Engineers Mauritius Co. Ltd. which in turn a subsidiary of United Engineers Malaysia (UEM), Berhad. In order to participate in the international bidding for the development, maintenance and management of National Highways under National Highway Authority of India (NHAI), UEM had formed a joint venture with S R Projects Limited and along with the joint ventu....

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.... assessee has made elaborate submissions before the TPO as well as the According to the learned counsel for the assessee and the material on record, the assessee has incurred loss on the project due to the foliowing reasons: (i) There was considerable delay in handing over the site by NHAI resulting in delay in completion of the project. (ii) unit rate had increased. (iii) Loss of operating cost during extended period of contract (iv) Compensation for. toss of owning cost of plant end equipment during the original period and extended period of overstay. (v)Loss suffered during original contract period and the extended contract period to meet cash flow deficit. In support of his contention, the assessee had filed the following evidence : (i)Arbitration claim filed by UEM with Dispute Adjudication Board on Sep. 17, 2010 for an amount of 005.86 crores. (ii)Arbitration claim filed by OEM with Hon'bie Arbitral Tribunal on 15-3-2012. Part of the Arbitration claim is filed by OEM and it is submitted that the assessee is in the process of filing part Il of the arbitration claim with the Arbitral Tribunal (....

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.... where the TPO has accepted the transaction to be at ALP in the hands of the AE? then he cannot take a different stand in the case of the other party to the transaction i.e. the assessee herein, In view of the same we do not see any purpose being by remanding the issue to the lower authorities. 15. In the result, the assessee's appeals are allowed. Since the issue arising from the identical facts and circumstances and therefore it is covered by the decision of the co-ordinate bench of this Tribunal in assessee's own case. Hence following the earlier order of this Tribunal, we do not find any reason to interfere with the impugned order of the CIT (Appeals). 3.4.3 Since the issue in dispute is arising from identical facts and circumstances as in the earlier/later years, it is, therefore, covered by the deicison of the co-ordinate bench of the Tribunal in the assessee's own case for asst. years 2004-05 to 2007-08 dated 30/8/2013 (Supra) and asst. year 2009-10 vide order dated 5/5/2017 (Supra). In this factual view of the matter, and following the aforesaid decisions of the co-ordinate benches of the Tribunal (Supra), we hold that where the TPO has acce....