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2019 (7) TMI 1318 - AT - Income TaxTP Adjustment - comparable selection - comparables namely IBN18 and Raj TV inclusion /exclusion - HELD THAT:- IBN18 - After going through Balance Sheet of IBN18 Broadcast Limited, we have observed that the said company has no doubt made losses on overall basis but so far as relevant segment is concerned, the OP/OC is positive at consolidated level , while the company has operating losses at standalone basis. These aspects which go to root of the matter are not looked by authorities below nor contended by assessee before authorities below. Thus, we are of the view that this need to be restored to the AO/TPO to consider this comparable again for denovo adjudication for its inclusion/exclusion as to comparable for determining ALP, after considering standalone as well consolidated results vis-à-vis FAR analysis.The assessee is directed to present all explanations/evidences to substantiate for its inclusion as comparable. The AO/TPO are directed to adjudicate on this comparable unhindered by any opinion expressed by us in this order, on merits in accordance with law. We order accordingly. Inclusion of Raj Television Network Limited as comparable cannot be excluded as it is not persistent loss making company because after the exclusion of exceptional losses , the said company Raj TV is in profits in the year under consideration while for immediately preceding year admittedly it was in losses. Thus, we direct inclusion of Raj TV after making adjustment of these exceptional expenses to the tune of ₹ 1628.79 lacs, wherein PLI is to be recomputed by AO/TPO. The AO/TPO are directed to include Raj TV as comparable after making adjustment for exceptional item of expenses to the tune of ₹ 1628.79 lacs. Applying profitability of 28% on transactions of the assessee with its non-AE’s - Respectfully following aforesaid decisions of the ITAT in assessee’s own case [2016 (9) TMI 1328 - ITAT MUMBAI] and keeping in view similar facts and circumstances for the year under consideration before us, we hold that no adjustment to income is required by computing ALP @28% on transactions of the assessee with non AE’s.
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