2023 (3) TMI 88

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....der are independent of, and without prejudice to one another: 1. On the facts and in the circumstances of the case, and in law, the Learned Assessing Officer ('Ld. AO'), following the directions of Hon'ble Dispute Resolution Panel ('Ld. DRP'), erred in confirming the addition of Rs.26,31,30,651/- to the total income of the Appellant on under various sections of the Income Tax Act, 1961 ('the Act'), The Appellant prays that various disallowances/ additions/adjustments made by the AO be deleted. Transfer Pricing related 2. On the facts and in the circumstances of the case, and in law, the Ld. DRP/Ld. AO/Learned Transfer Pricing Officer ('Ld, TPO') erred in determining the arm's length price of the international transaction pertaining to payment of fees for advisory and other services by the Appellant to its associated enterprise ('AE') as 'Nil' as against Rs.15,75,65,912/- determined by the Appellant and thereby making a TP adjustment of Rs. 15,75,65,912/-. The Appellant prays that the book value of the international transaction be accepted to be the arm's length price of the said transaction and the above TP adjustment be delet....

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....ii. modifying the set of comparables; and iii. erroneously considering functionally dissimilar companies: • Domex E-Data Private Limited • Informed Technologies India Ltd. • Inteq B P O Services Pvt. Ltd. • Manipal Digital Systems Pvt. Ltd. as additional comparables in final set of comparables. The Appellant prays that the benchmarking analysis conducted by the Appellant in the TP study ought to be accepted, above mentioned companies be rejected from the final set of comparables and consequently, the TP adjustment be deleted. Corporate Tax related 7. On the facts and in the circumstances of the case, and in law, the Ld. AO as per directions given by Hon DRP has erred in denying the weighted deduction of Rs.18,63,37,428 (200% of revenue expenditure of Rs.8,82,53,166 and capital expenditure of INR 49,15,548) claimed by the Appellant under section 35(2AB) of the Act on the ground that Department of Scientific and Industrial Research ('DSIR') has not issued Form 3CL. The Appellant prays the Hon'ble Tribunal to allow the deduction under section 35(2AB) of the Act. 8. On the fact....

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....ing so as to enable the Hon'ble Tribunal members to decide these according to the law." 2.1. We proceed ground wise for the sake of completeness of our adjudication. 3. The assessee's first and foremost substantive ground is treated as general in nature. Rejected accordingly. 4. The assessee's 2nd to 4th substantive grounds seek to reverse transfer pricing adjustment of Rs.15,75,65,912/- pertaining to fee for advisory and other services involving its overseas associated enterprises "AE's" whose price has been taken by the TPO at NIL as affirmed in the DRP's directions. It emerges during the course of hearing that the assessee has filed its case law paper book running into 81 pages placing on record this tribunal's six orders i.e., common for assessment years 2010-11 and 2011-12 and 2012-13, and 2013-14 to 2016-17 each adjudicating the very issue against the department. We deem it appropriate to quote learned coordinate bench's last order dated 15.07.2021 for assessment year 2016-17 involving assessee's appeal ITA.No.190/PUN./2021 as follows : "4. The only other surviving issue in this appeal through various grounds is against the confirmation of transfer p....

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....e has come up in appeal before the Tribunal. 6. We have heard both the sides and gone through the relevant material on record. It is found as an admitted position that the facts and circumstances of the instant appeal are similar to those of the earlier years. The Tribunal has passed orders starting from assessment year 2009-10 to 2015-16, whose copies have been placed on record. In the lead order, which has been followed in later years, the application of the TNMM as the most appropriate method has been accepted in preference to the CUP method as applied by the TPO. After giving certain directions, matter has been sent back to the AO/TPO for deciding the issue accordingly. The ld. DR fairly conceded that the facts and circumstances of the instant appeal are mutatis mutandis similar to those of earlier years. Respectfully following the precedent, we set-aside the impugned order and remit the matter to the file of AO/TPO for deciding this issue afresh in accordance with the directions given by the Tribunal in assessee's own case for the earlier assessment years. Needless to say, the assessee will be provided adequate opportunity of hearing in such fresh proceedings." 5. ....