TaxTMI 
TaxTMI 
2023 (3) TMI 1020
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....peal against the Assessment Order, dated 23.12.2008, passed under Section 143(3) of the Income Tax Act, 1961 (hereinafter referred to as „the Act‟). 2. The appeal was filed with the application seeking condonation of delay in filing the appeal on the ground that the Director of the Appellant-Company at the relevant time was outside India and therefore, could not execute the appeal paper. In view of the explanation provided by the Appellant, delay of 10 days in filing the appeal is condoned. Accordingly, we proceed to examine the appeal on merits. The Appellant has raised following grounds of appeals: "1. Under the facts and in law, the Hon‟ble CIT(A) has erred in confirming the addition of Rs. 1,79,98,287/-. 1.1 The ....
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....ing Officer noted that the Appellant has entered into international transactions with its Associated Enterprises (AEs) and therefore, a reference was made under Section 92CA(1) to the Transfer Pricing Officer (TPO) for the determination of Arm‟s Length Price (ALP) of the international transactions. The TPO, while examining the international transaction of „Export Finishing Goods‟ amounting to INR 17,11,08,977/-, noted that sales of INR 17.75 Crores, being 42.8% of the total sales, were made to the AEs while sales of INR 22.49 Crores, being balance 57.2% of the total sales, were made to Non-AEs. According to the TPO, the gross margin on cost earned in case of sales made to non-AEs was 16.68% which was more than the gross ma....
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....cing adjustment of INR 1,79,98,287/- proposed by the TPO order, dated 30.10.2008, was incorporated by the Assessing Officer in Assessment Order, dated 23.12.2008, passed under Section 143(3) of the Act. 3.3. Further, the Assessing Officer also made an addition of INR 72,50,000/- under Section 68 of the Act treating the following unsecured loans as unexplained cash credit in terms of Section 68 of the Act: Name of the Lender Amount (INR) - Shri Pravin Kumar Jain 22,50,000 - Jain International 5,00,000 - Radhika Woolen and Silk Mills Pvt. Ltd. 30,00,000 - Rawmet Commodities Pvt. Ltd. 15,00,000 72,50,000 3.4. Being aggrieved, the Appellant preferred an appeal before CIT(A) challenging, both, the transfer ....
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....r of CIT(A) confirming the transfer pricing addition of INR 1,79,98,287/-. 5. The Ld. Authorised Representative for the Appellant reiterated the submission made before Assessing Officer and CIT(A) explaining the difference in the margin in respect of sales made to AE‟s and Non-AEs. The Ld. Authorised Representative for the Appellant submitted that in the immediately preceding Assessment Year 2006-07, the Tribunal has, vide order dated 11.03.2015 passed in ITA No.9123/Mum/2010, remanded the identical issue to the file of TPO for passing de-novo order in identical facts and circumstances. Per contra, the Ld. Departmental Representative relied upon the order passed by the TPO and the CIT(A). 6. We have considered the rival submissions ....
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.... Accordingly, we restore the issue to the file of TPO with a direction to consider this issue denovo and pass a reasoned and speaking order after giving the assessee reasonable opportunity of hearing. This issue is restored back to the file of TPO and considered to be allowed for statistical purposes in the manner aforesaid." (Emphasis Supplied) 7. We find that there is no change in the facts and circumstances in the assessment year before us. For Assessment Year 2005-06, the TPO has adopted same approach as adopted in the Assessment Year 2004-05 with stands rejected by the above order of the Tribunal. The Tribunal had, for the immediately preceding Assessment Year 2004-05, accepted the contentions raised on behalf of the Appellant and re....
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....hat the aforesaid documents were filed before CIT(A) to establish genuineness of the transaction. However, the CIT(A) treated the unsecured loans as not genuine based upon conjecture and surmise. Per contra, the Ld. Departmental Representative submitted that loan of INR 3,00,000/- taken from Radhika Woolen & Silk Mills Pvt. Ltd., and INR 15,00,000/- taken from Rawmet Commodities Pvt. Ltd. cannot be treated as genuine since the lenders were neither related to the Appellant nor any goods were purchased or sold by the such lenders. Thus, the lenders had no motive/purpose to give loans to the Appellant as observed by the CIT(A). 9. We have considered the rival submissions and perused the material on record. We are not inclined to accept the ap....