TMI Blog2013 (7) TMI 699X X X X Extracts X X X X X X X X Extracts X X X X ..... mparables. Consequently, the adjustment arrived at by the Transfer Pricing Officer and the addition made by the Assessing Officer cannot be sustained on the basis of the Transfer Pricing Study with regard to the four companies which were clearly functionally not comparable - Decided against Revenue. - ITA 271/2013 & ITA 277/2013 - - - Dated:- 29-5-2013 - Badar Durrez Ahmed And Vibhu Bakhru,JJ. For the Appellant : Mr Kiran Babu For the Respondent : None JUDGMENT Badar Durrez Ahmed, J (Oral) CM Nos. 8856/2013 8916/2013 Exemptions are allowed subject to all just exceptions. CM Nos. 8857/2013 8917/2013 Delay in re-filing is condoned. ITA Nos. 271/2013 277/2013 1. These appeals by the revenue raise a co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d:- (1) Whether the reference made by the Assessing Officer to the T.P.O. mechanically is bad in law making the TPO s order void-ab-initio? (2) Whether the mechanical acceptance of TPO s recommendation by the AO makes the assessment order bad in law? (3) Whether the TPO was justified in considering the current year data? (4) Whether the comparables selected in the order of the TPO are functionally non-comparable to the appellant? 4. Question Nos. (1) to (3) were held against the respondent / assessee and in favour of the revenue. However, question No. 4 above was decided by the CIT (Appeals) in favour of the respondent / assessee. This resulted in the filing of two appeals by the respondent /assessee, being, ITA No. 4187/Del/201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e opinion that the T.P.study wherein these 4 comparables taken were wrong as apparently there is no functional comparability, we cannot approve such T.P.study, even if the T.P.O. has accepted it. Wrong facts have to be corrected. There can be no estoppel in such factual situation. The Ld.CIT(A) has the power to accept fresh claim of the assessee. Marketing support services cannot be compared with turn key Engineering services. We agree with the view of the First Appellate Authority that EIL, Rites, Wapcos and TCE are engineering companies that provide end-to-end solutions and whereas the assessee company provides marketing support services to the parent company, which is in the nature of support service and hence not functionally comparable ..... X X X X Extracts X X X X X X X X Extracts X X X X
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