TMI Blog2014 (4) TMI 468X X X X Extracts X X X X X X X X Extracts X X X X ..... 5-10-2013 - B.R.MITTAL AND D. KARUNAKARA RAO, JJ. For the Appellant : Ajit Kumar Jain. For the Respondent : Hiren Dedhia. ORDER:- PER : B.R.Mittal, J. The department has filed this appeal for assessment year 2007-08 against order of ld. CIT(A) dated 23.2.2012 on following grounds: "1. On the facts and in the circumstances of the case and in law, the ld. CIT(A) erred in giving the benefit of safe-harbour of 5% under the 2nd proviso to Section 92C(2), when the safe-harbour is not in the nature of a standard deduction as can be deduced from the Memorandum to the Finance Bill (2) of 2009, and CBDT Notification F No.142/13/2010-SO(TPL) dated 30.09.2010; 2. The appellant prays that the order of ld. CIT(A)j on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings ignoring the rules 10B(2) and (3) of the Income Tax Rules 1962 governing comparability analysis and also in violation of principles of natural justice. Thus the Appellant prays that the alleged comparables selected by the learned TPO should be rejected; 4. On the facts and in the circumstances of the case and in law, the Hon'ble CIT(A) erred, in upholding /confirming the action of the TPO of using data obtained under section 133(6) of the Act which was not available in public domain as on specified date (as defined in section 92F(iv) of the Act read with Rule 10B(4) of the Rules; 5. On the facts and in the circumstances of the case and in law, the Hon'ble CIT(A) erred in upholding/confirming the action of the TPO with res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es like Infosys BPO limited and Wipro Limited with significantly high turnover as compared to the Appellant; 11. On the facts and in the circumstances of the case and in law, the Hon'ble CIT(A) erred in upholding / confirming the action of the TPO in rejecting the without prejudice contention of the Appellant to compute the margin of alleged comparable companies based on multiple year financial data; 12. On the facts and in the circumstances of the case and in law, the Hon'ble CIT(A) erred in upholding / confirming the action of the TPO in not allowing risk adjustment in accordance with the provisions of Rule 10B of the Income Tax Rules, 1962 to account for difference between international transactions and the alleged comparab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 27.10.2010, the AO made addition of Rs.1,51,66,149/- while making assessment vide order dated 31.12.2010. Being aggrieved, assessee filed appeal before ld. CIT(A) interalia contending that TPO adopted the set of 25 comparables with arithmetic mean of 30.75% after rejecting the set of comparables adopted by assessee computed arithmetic mean of profit level indicator (PLI) at 16.16%. The assessee adopted TNMM to benchmark with its international transactions, with operating profit over total cost as PLI at 23%. In the grounds of appeal filed before ld. CIT(A), assessee disputed the approach followed by TPO in selecting the comparables. Assessee also took a ground of appeal viz ground No.5 before ld. CIT(A) as under : "5. The ld. AO/T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the other grounds taken by assessee before ld. CIT(A) require adjudication on merits. He submitted that the matter may be restored to ld. CIT(A) to decide the grounds taken by assessee on merits as the said grounds were not pressed conditionally as per letter dated 22.2.2012. 6. Ld. DR has no objection to restore the matter to the ld. CIT(A) to decide the same afresh on merits by a speaking order. 7. In view of above submissions of ld. Representatives of the parties and considering the order of ld. CIT(A), we set aside impugned order of ld. CIT(A) and restore the matter to the file of ld. CIT(A) with a direction to decide the issue/grounds of appeal taken by assessee on merits by a reasoned order after giving due opportunity of hearing ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
