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2015 (11) TMI 1683 - ITAT DELHITPA - selection of comparable - Can the DR argue for the exclusion of some companies, which were treated by the AO/TPO as comparable’? - Held that:- The answer to this question can be given in negative alone. It is understandable that when CIT(A) has decided some point in favour of the assessee and against the Revenue, the AO is fully empowered to assail the correctness of such a decision in an appeal before the tribunal. Similarly, when an assessment order is passed u/s 143(3) read with section 144C of the Act, the AO can be aggrieved against the direction given by the DRP. In such cases of grudge, the AO can approach the tribunal for an appropriate relief, wherever and to the extent the law permits. The underlying idea behind these situations is that the AO is dissatisfied with reversal of his view either by the CIT(A) or the DRP, as the case may be, which he wants to be restored. But, the AO in our considered opinion, can under no circumstance be aggrieved with his own view taken in the assessment order independent of any external influence of the DRP etc. It goes without saying that in all the appeals filed by the assessee against the final order passed by the AO u/s 143(3) read with section 144C of the Act, the respondent is always the AO. In other words, the DR represents the AO in an appeal before the tribunal. Taking up an issue for argument by the DR before the tribunal means taking up the issue by the AO through the DR. If we allow the DR to argue that the decision taken by the AO/TPO was wrong and certain companies included by the TPO himself should be deleted, it would mean that the AO is challenging the correctness of his own decision through the DR before the tribunal, which is illogical. Department right to file appeal against the independent free decision of the AO/TPO - Held that:- AO was without any remedy to challenge the unconvincing adverse direction given by the DRP, given effect to in his own order, in respect of any objections filed before this cut-off date of 1.7.2012. Now with this amendment, the Revenue has been given a liberty to file appeal before the tribunal if the CIT objects to any direction issued by the Dispute Resolution Panel, that has been given effect to by the AO. The point to be underscored is that such power of filing appeal is restricted only to the cases where `objection is to the direction of the DRP’ and not to the voluntary action of the AO himself. In other words, if the AO/TPO has chosen a company as comparable, which has been directed to the excluded by the DRP, then an appeal can be filed against the assessment order on such exclusion. The power to file appeal does not extend to the selection of a company as comparable by the AO/TPO himself which has remained intact even after the direction given by the DRP. No hesitation in holding that albeit the tribunal has the power to voluntarily direct the AO/TPO to reconsider the correctness of the companies included by him in the list of comparables, but in no case, can the DR argue, as a matter of right, against such inclusion. Set aside the impugned order and restore the matter to the file of AO/TPO for recalculating the ALP of the international transaction of ‘Rendering of services’ afresh in conformity with our above discussion
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