TMI Blog2012 (9) TMI 45X X X X Extracts X X X X X X X X Extracts X X X X ..... tice. Thus the matter is restored back to the file of the AO with the direction to supply whatsoever information used against the assessee and the assessee be granted a reasonable opportunity of being heard and thereafter pass a fresh assessment order, as per law - in favor of assessee for statistical purposes. - IT Appeal No. 5467 (Delhi) of 2011 - - - Dated:- 20-7-2012 - R.P. Tolani, Shamim Yahya, JJ. Vijay Iyer and Manoneet Dalal for the Appellant. Peeyush Jain for the Respondent. ORDER Shamim Yahya, Accountant Member This appeal by the Assessee is directed against the order of the Ld. Assessing Officer, New Delhi pertaining to assessment year 2007-08. 2. The grounds raised read as under:- "1 The order pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gard. 5. That on the facts and in law, the Learned TPO/DRP/Assessing Officer erred in making upholding an upward adjustment of Rs. 24,467,485/- in respect of the international transactions of the appellant pertaining to provision of Information Technology ('IT') enabled services to its Associated Enterprises ("AEs"). 5.1 That on the facts and in law, the Learned TPO has erred in not discharging his statutory onus to establish that the any of the conditions specified in clause (a) to (d) of Section 92C (3) of the Income Tax Act, 1961 ('the Act') have been satisfied before disregarding the arm's length price determined by the Appellant and proceeding to determine the arm's length price himself. 5.2 That on the facts and in law, the Hon' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant vis-a-vis the comparables and in the process also neglected the Indian transfer pricing regulations, OECD guidelines on transfer pricing and judicial precedence. 5.8 That on facts and in law, the Hon'ble DRP erred in not giving due cognizance to the fresh comparability analysis conducted by the Appellant, in the interest of substantial justice. 6. The Learned TPO/ AO have erred, in incorrectly computing the operating margins of the Appellant by not considering the foreign exchange gains/ losses as operating in nature and financial charges as non-operating in nature, post the directions issued by the Hon'ble DRP. 7. That on facts and in law, the Hon'ble DRP and the Learned TPO/ AO have erred by not considering that the adjustment t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hnology (IT) enabled services in the nature of survey programming, data collection, data analysis and business research. It is a captive contract service provider rendering IT enabled services to its associated enterprise. It primarily provides back office support for Exevo Inc guides/ instructs Exevo India with regard to the services to be provided. According to assessee Exevo US is into losses whereas Exevo India was profitable. 3.1 In transfer pricing assessment proceedings for A.Y. 2007-08 the TPO did not concur that the analysis undertaken by the assessee and re-determined arms length price by rejecting certain comparable companies identified by the assessee and introducing new companies. In this process TPO relied heavily on non-p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sponse shared with appellant. 1 Accentia Technologies Ltd. (Seg.) To determine functionality segmentation Shared, but not complete 2 Apex Knowledge Solutions Ltd. To determine functionality Not shared 3 Asit C Mehta Financial Services Ltd. To obtain segmental details and determine functionality Not shared 4 Caliber Point Business Solutions Ltd. To obtain annual reports for March ending Not shared 5 HCL Comnet Systems Services Ltd (Seg.) To obtain information for the March financial year end and to determine whether it qualifies all the filters Not shared 6 ICRA Techno Analytics Ltd. (S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bang.) ( iii ) Electronics for Imaging India (P.) Ltd. v. Dy. CIT [I.T Appeal No. 1171(Bang) of 2010]. ( iv ) Adobe Systems India (P.) Ltd . [I.T Appeal No. 5693 (Delhi) of 2011]. 5.2 In the background of the aforesaid discussion and precedents, assessee requested that this matter be restored back to the file of the Assessing Officer /TPO for consideration with directions that all information sought to be used against the assessee be furnished to the assessee, the assessee be given sufficient opportunity to present objections and arguments against such information and if required cross examine the parties whose replies are sought to be used against the assessee and the usage of information be restricted to data contained in t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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