TMI Blog2013 (5) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... ner cannot be rejected outright, as the jurisdictional Commissioner is part of the DRP which rejected assessee objections. We set aside the orders of AO and DRP and restore the entire assessment to the file of AO, leaving the issues contested now open for examination at a later time, if required. Since the entire assessment was restored to the file of AO, there is no need to discuss the issue of PE and attribution of profits now, which may have to be considered when it arises in the re-assessment procedure. - IT Appeal NO. 8134/2010 - - - Dated:- 7-2-2013 - B. RAMAKOTAIAH and Amit Shukla, JJ. For the Appellant J.D. Mistri, Nishant Thakkar and K.K. Ved. For the Respondent Narender Kumar. ORDER:- B. Ramakotaiah, Accounta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he jurisdictional Commissioner not only at the time of passing the draft assessment order but also part of DRP and at the time of final order. Therefore, the first objection is with reference to the above issue. 3. The next objection is that the contention of assessee that Indian entity has been appropriately remunerated at arms length separately by way of rebates/incentives paid to Indian entity Ingram Micro (India) Pvt. Ltd directly by various vendors, supported by various documents placed on record, which were rejected by the AO without examination and not considered by the DRP inspite of raising objections on this issue. He has mentioned that this aspect has to be examined by AO. The third reason is that the learned DDIT erred in not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd therefore, following the principles laid down in the case of Dresdner Bank Ag v. Asstt. DIT in ITA No.2962/Mum/2004 dated 16.01.2013, this plea of assessee cannot be accepted. Further, with reference to the contentions that the rebates and incentives were passed on to the Indian Companies, he referred to the segmental profits stated by the assessee company to submit that if the entire profits were passed on to the Indian Company as stated by the learned Counsel, how there are further substantial profits in the hands of the Singapore Company, as disclosed in accounts. 6. With reference to the objection that the cross examination was not allowed, he has referred to the orders of AO that the entire documents placed on record were taken du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y prayer that the matter may be restored to the file of AO for fresh examination. With reference to the objections raised by the DR that the FAR analysis was not done and transfer pricing procedure not undertaken, the learned Counsel referred to the paper book from pages 173 to 270 to submit that the FAR analysis was undertaken and these matters were before AO and the DRP. It was further submitted that AO did not make any TP reference. Since the issue of jurisdiction itself was raised, the prayer is for restoring to AO for fresh examination of all the issues. 8. We have considered the contentions raised by both the parties. As seen from the orders placed on record, the first objection with reference to possible bias on the part of the jur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y remunerated at arms length, there cannot be any further profit in the Singapore Company on the Indian operations. However, these aspects require fresh examination on the basis relevant agreement/understanding if any and details of incentives received and profit attribution which was to be done after examination of facts. Therefore, we are of the opinion that the matter should be restored to the file of AO, without going into the issue of PE/ attribution of profits. AO is directed to give an opportunity to assessee for cross examining persons whose statements are used against assessee. The statements have been recorded from the Indian personnel and might have been examined with reference to the Indian Company, however, assessee's contentio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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