2025 (9) TMI 303

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....for respondent. Perused the appeal papers. This appeal by the Revenue challenging the order passed by the Income Tax Appellate Tribunal, Bengaluru 'C' Bench, Bengaluru (for short, 'the Tribunal') dated 08.02.2023 in ITA.No. 912/BANG/2019 for the Assessment Year 2010-11. 2. The assessee is a joint venture company promoted by M/s. Alpha Design Technologies Pvt Ltd., and M/s. ITL Optronics of Israel engaged in the business of manufacturing, assembling and testing of opto electronic equipment. The respondent-assessee filed return of income on 27.09.2010 declaring loss of Rs. 9,60,93,512/-. The Assessing Officer after selecting the return of income for scrutiny, referred the matter for determination of Arms Length Price (for short, 'ALP') ....

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....f the Income Tax Act, 1961 (for short, '1961 Act'). 4. Learned counsel Sri. Sushal Tiwari for the appellant submits that the order of the Tribunal dated 27.11.2015 has given positive direction without any exercise to be undertaken by the TPO. It is his submission that unless the TPO has taken a judicious decision while giving effect to the directions of the Tribunal, the Assessing Officer is not required to pass draft assessment order. It is further submitted that when the Assessing Officer was not enabled to make any determination of ALP, the TPO has given effect to the directions. 5. On the other hand, learned counsel Smt. Tanmayee Rajkumar appearing for the respondent-assessee submits that the order of remand by the Tribunal direct....

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.... directions. The Assessing Officer has passed final assessment giving effect to the directions of DRP. The said final assessment order was the subject matter before the Tribunal. These facts are not in dispute. 8. The Tribunal while considering the contention of the assessee set aside the three comparability of three companies to the Transfer Pricing Officer/Assessing Officer for verification and re-determination of ALP. The TPO giving effect to the order of the Tribunal has determined the re-adjusted ALP. It is not in dispute that the ALP determined by the TPO while giving effect to the order of Tribunal is in variance. Section 144C(1) of the Act mandates that if any variation is found as a consequence of the order of the TPO under Sect....