TaxTMI 
TaxTMI 
2026 (4) TMI 480
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....alid. 3. Brief facts of the case shows that the assessee company filed its return of income at the total income of Rs. Nil. The case was selected for scrutiny which resulted into the final assessment order passed under section 143 (3) read with section 144C (13) of The Income Tax Act, 1961 (The Act) determining the assessed income at Rs. 190,805,854/-. 4. The assessee preferred an appeal before the income tax appellate tribunal, the Tribunal passed order in IT (TP) 492/Bangalore/2015 on 19 January 2022. 5. Subsequently a miscellaneous application was preferred by the assessee in MA No. 61/Bangalore/2022 dated 26 August 2022 wherein the further partial relief was granted to the assessee. 6. It is interesting to note that what happened in the ITAT order. Before the ITAT, the assessee sought for exclusion of 5 comparable such as i. E info Chips Limited ii. Acropetal technologies Limited, iii. E Zest solutions Ltd, iv. ICRA Techno analytics Ltd and v. persistent systems and solutions Ltd. 7. The coordinate bench as per paragraph No. 31 of its order dated 19 January 2022 restored the issue of exclusion of the above five compara....
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....olution panel rendering the AO's order invalid and bad in law. 15. The learned dispute resolution panel disposed of this objection quite paragraph No. 3.1 stating that "it has to be noted that the scope for the DRP to issue direction is only under section 144C (5) wherein the DRP issued direction in pursuance of objections filed by the assessee under section 144C (2) (b) against the draft assessment order issued under section 144C (1) of the act and hence the DRP could issue directions only after receiving objections from the assessee against order giving effect issued by the TPO and the subsequent tour GE in the form of draft assessment order by the AO. Nonetheless, it is pertinent to note that the DRP was neither respondent in the appeal filed before the Honourable ITAT nor did the Honourable ITAT forwarded a copy of the appeal order to the DRP. Hence the DRP could not have initiated any action unless these objections are filed before the panel. In view of the above, we do not find any infirmity in the action of the TPO in passing an order giving effect to the direction of the honourable ITAT under section 92CF (3) read with section 254 of the act and the AO's action in passin....
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....the assessing officer on the draft assessment proposed by him. Therefore, neither the TPO and not the DRP is a party before the minimal to whether we may r) and any direction given to them would not have been an occasion to comply with by these two authorities. Thus, the direction of the ITAT to the DRP was impossible to perform. She also submitted that law does not compel a man to do that which he cannot perform. And therefore, the ITAT order could not have been complied with by the learned dispute resolution panel. 19. Even otherwise she submitted that there is no grievance left of the assessee that these five comparables were directed by the ITAT to the learned dispute resolution panel to reconsider. In the present case the learned TPO has reconsidered them, in pursuance of the order of the TPO, the assessing officer has passed the draft assessment order, this draft assessment order has been taken before the learned dispute resolution panel and the learned dispute resolution panel in its direction have also upheld the inclusion of the above 5 comparables. The assessee got complete opportunity before the learned TPO as well as before the learned DRP contesting exclusion of the....
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....authority. It is a settled principle that where a particular thing is to be done in a particular manner, it must be done in that manner and in no other manner. He placed heavy reliance on gender to shows versus Marvel façade (1999) eight SCC 266 (SC), J Roku the money was received Sec government of Andhra Pradesh (2015) 13 SCC 722 and other similar decisions. Thus, the order of the learned transfer pricing officer insofar as inclusion of five companies as comparable is without jurisdiction and bad in law and liable to be quashed. 22. We have carefully considered the rival contention and perused the order of the coordinate bench passed in the case of the assessee. Admittedly the ITA T restored and issue of exclusion of 5 comparables to the learned dispute resolution panel. In case of appeal before the tribunal, the respondent was the learned assessing officer. Therefore, in all fairness, any direction that needs to be given is to be given to the learned assessing officer and nobody else. Admittedly the learned TPO as well as the learned dispute resolution panel are not respondent in the appeal before the ITAT. Further according to the provisions of section 144C of the act,....
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.... ITAT. 26. In this case the learned transfer pricing officer passed an order under section 92CA (3) read with section 254 of the income tax act 1960 one wherein the learned transfer pricing officer noted that there is a set-aside proceedings before the learned transfer pricing officer as per paragraph No. 4 of his order and subsequently in paragraph No. 5.4 the learned TPO included the comparable is our system International Limited and Helios and Mathson information technology Ltd. Therefore, whatever is restored by the ITAT to the learned transfer pricing officer with respect to the software development segment, he has made the adjustment. Further he was not authorised to make any adjustment with respect to other five comparable companies for which the ITAT restored back to the learned dispute resolution panel therefore he returned them. 27. Further with respect the ITAT upheld the arm's-length price of the guarantee fee at the rate of 0.5%, the learned transfer pricing officer the same at Rs. 2,047,608/-. 28. Thus, the transfer pricing officer retains the software development segment adjustment of Rs. 43,166,829 and corporate guarantee commission of Rs. 2,047,608 which r....