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2016 (7) TMI 242 - AT - Income TaxTransfer pricing adjustments - Grant of adjustment on account of under capacity utilization - Held that:- A perusal of order dated 28-10-2011 passed by TPO u/s.92CA(3) of the Act shows that the TPO has not touched upon the issue of capacity under utilization adjustment claimed by the assessee. The Commissioner of Income Tax (Appeals) in the impugned order for assessment year 2008-09 in para 2.2.4 to 2.2.5 has directed the Assessing Officer/TPO to grant the adjustment on account of the capacity under utilization on the basis of the order of TPO passed in the subsequent assessment year i.e. assessment year 2009-10. It is an undisputed fact that the benefit of ‘under capacity utilization’ has been granted by the Tribunal in various cases wherever the assessee deserves or where the facts and circumstances of the case warrants so. In the present case, it is not clearly emerging from the records as to on what basis under capacity utilization adjustment is to be granted to the assessee. Therefore, we deem it appropriate to remit the file back to TPO for deciding the issue afresh by passing speaking order. The TPO shall decide the issue after considering the facts of the case, documents on record and in the light of decisions of Tribunal. The appeal of the Department for the assessment year 2008-09 is accordingly allowed for statistical purpose.
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