TaxTMI 
TaxTMI 
2020 (11) TMI 1127
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....tives of the assessee pointed out that the grounds raised in the respective appeals are liable to be disposed of either in the light of the Resolution of the same under Mutual Agreement Procedure (MAP) between the competent authorities of India and US and/or in view of the fact that the assessee is opting to settle the dispute under Vivad Se Vishwas Act, 2020 scheme. Learned Senior DR appearing for the Revenue has not disputed the aforesaid position sought to be canvassed by the learned representatives. 3. In order to impart completeness to the order, we proceed to dispose of the captioned appeals as under. 4. Insofar as ITA No.1876/Del/2015 is concerned, the grounds of appeal as revised/modified read as under :- "(I) Transfer pricing adjustment made to the transactions entered with Associated Enterprises ("AEs") in United States ("US") On the facts and in the circumstances of the case and in law, 1. The learned AO erred in completing the assessment proceedings by admittedly not giving effect to the directions of the Hon'ble DRP under section 144C(5) of the Act and thereby violating the provisions of section 144C(13) of the Act. Since the impugned o....
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....lity criterion; 7. The learned AO/TPO erred, in law and in facts, by accepting/rejecting companies based on unreasonable comparability criteria. 8. The learned AO/TPO erred, in law and in facts, by committing computational errors in the impugned TP order; 9. The learned AO/TPO erred, in law and in facts, by not making suitable adjustments on account of differences in the risk profile of the Appellant vis-a-vis the comparables, while conducting comparability analysis; 10. The learned AO/TPO erred, in law and in facts, by computing the arm's length price without giving benefit of +/- 5 percent under the proviso to section 92C of the Act; (II) Transfer pricing adjustment made to the transactions entered with Non-US AEs On the facts and in the circumstances of the case and in law, 11. The learned AO erred in completing the assessment proceedings by admittedly not giving effect to the directions of the Hon'ble DRP under section 144C(5) of the Act and thereby violating the provisions of section 144C(13) the Act. Since the impugned order does not take into account all the directions of the Hon'ble DRP, the same is bad in law a....
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....aw and in facts, by accepting/rejecting companies based on unreasonable comparability criteria. 18. The learned AO/TPO erred, in law and in facts, by committing computational errors in the impugned TP order; 19. The learned AO/TPO erred, in law and in facts, by not making suitable adjustments on account of differences in the risk profile of the Appellant vis-a-vis the comparables, while conducting comparability analysis; 20. The learned AO/TPO erred, in law and in facts, by computing the arm's length price without giving benefit of +/- 5 percent under the proviso to section 92C of the Act; (III) Corporate tax and other grounds On the facts and in the circumstances of the case and in law, 21. The learned AO has erred, in law and facts, in determining the total income of the Appellant at INR 32,57,31,280 and the total tax and interest payable (as reduced by the tax deducted at source and advance tax) by the appellant at INR 6,70,62,860. 22. The learned AO has erred in law and facts, in not granting full credit in respect of TDS and advance tax claimed by the Appellant; 23. The learned AO has erred in levying inte....
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.... arm's length price of the software development services transaction entered by the Appellant with its AEs in US; 3. The learned AO/TPO erred, in law and in facts, by not accepting the economic analysis undertaken by the Appellant in accordance with provisions of the Income-tax Act, 1961 ("the Act") read with the Income-tax Rules, 1962 ("the Rules"), and modifying the same for determination of arm's length prices ('ALP') of the impugned transaction to hold that the same is not at arm's length. 4. The learned AO/TPO erred, in law and in facts, by determining the arm's length margin/price using only FY 2009-10 data which was not available to the Appellant at the time of complying with the transfer pricing documentation requirements; 6. The learned AO/TPO erred in rejecting certain comparable by applying the following quantitative and qualitative filters : (a) The learned AO/TPO erred, in law and in facts, by not applying the upper turnover filter as a comparability criterion; (b) The learned AO/TPO erred, in law and in facts, by rejecting certain comparable companies identified by the Appellant for having different accounting year (i.e. co....
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....aw and in facts, by not accepting the economic analysis undertaken by the Appellant in accordance with provisions of the Income-tax Act, 1961 ('the Act') read with the Income-tax Rules, 1962 ('the Rules'), and modifying the same for determination of arm's length prices ('ALP') of the impugned transaction to hold that the same is not at arm's length. 13. The learned AO/TPO erred, in law and in facts, by determining the arm's length margin/price using only FY 2009-10 data, which was not available to the Appellant at the time of complying with the transfer pricing documentation requirements; 14. The learned AO/TPO erred in rejecting certain comparable companies by applying the following quantitative and qualitative filters: (a) The learned TPO/AO erred, in law and in facts, by rejecting certain comparable companies using 'Turnover less than INR 5 crores as a comparability criterion; (b) The learned AO/TPO erred, in law and in facts, by rejecting certain comparable companies identified by the Appellant for having different accounting year (i.e. companies having accounting year other than March 31 or companies whose financial statements were for a per....