TMI Blog2012 (8) TMI 963X X X X Extracts X X X X X X X X Extracts X X X X ..... cts of the case are that the assessee company, a service provider, filed its return of income declaring income of ₹ 66,65,99,500/-. The assessment was completed at total income of ₹ 162,46,39,575/- after making following additions: - i) transfer pricing adjustments; ii) withdrawal of 10A deduction of ₹ 40,71,12,732/-. 3. Both these adjustments were made by the AO on the basis of directions given u/s 144C(5) by Dispute Resolution Panel (in short DRP ). 4. Being aggrieved with the order of AO passed u/s 143(3) read with sec. 144C, the assessee is in appeal before us and has taken following grounds of appeal: - 1. The final assessment order dated October 31, 2011 passed by the Deputy Commissioner of Income Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sole objective of rejecting comparables selected by the appellant and arriving at skewed results. 8. That on facts and in law, the ld. TPO/AO have erred by selecting certain companies which are earning super normal profits as comparable to the appellant. 9. That on facts and in law, the ld. TPO/AO have erred by exercising his powers u/s 133(6) of the I.T. Act, 1961 ( the Act ) to obtain information which was not available in public domain and relying on the same for comparability purposes. 10. That the ld. TPO has failed to make appropriate adjustments to account for differences in varying risk profile of the appellant vis- -vis the comparables and in the process also ignored Indian transfer pricing regulations and judicial preced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmination of Arm s Length Price of International Transactions undertaken by the assessee with the Associated Enterprise. TPO passed the order u/s 92CA(3), wherein he made the upward adjustment of ₹ 55,99,65,116/- to the income of the assessee, being the difference between Arm s Length Price and the price charged by the assessee. 7. After considering the assessee s reply, the AO passed the draft order and proposed the addition of ₹ 55,99,65,116/-. The assessee filed objections before DRP, which after considering them, directed the TPO to recompute ALP as per directions. 8. Ld. Counsel for the assessee submitted that TPO had obtained information from companies u/s 133(6) which was not completely provided to assessee. 9. L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10. Datamatics Financial Services Ltd. (Seg.) 11. Eclerx Services Ltd. 12. Flextronics Software Systems Ltd. (Seg.) 13. Genesys International 14. HCL Comnet Systems Services Ltd. (Seg.) 15. ICRA Techno Analytics Ltd. 16. Informed Technologies India 17. Infosys BPO Ltd. 18. Isservices India Pvt. Ltd. 19. Maple eSolutions Ltd. 20. Mold-Tek ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the issue should be decided after hearing the objections in this behalf. This view is supported by the coordinate benches of the ITAT in the cases of M/s Genisys Integrating Systems (India) Pvt. Ltd. and M/s Kodiak Networks (India) Pvt. Ltd. (supra). Consequently, we are of the view that such information gathered by the TPO u/s 133(6) should be provided to the assessee to enable it to verify the comparable figures with a right to file objection/apply thereon. The TPO shall arrive at the ALP after providing the assessee adequate opportunity of being heard in accordance with law. Consequently, we set aside the matter back to the file of AO/TPO accordingly. 14. Respectfully following the aforementioned decision, we set aside the matter b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unit, the turnover of the old unit has not reduced but, on the other hand, increased. During AY 2002-03, when no new unit was in existence, the turnover of old unit was ₹ 129 crores which, after the setting up of the new unit, has increased to ₹ 294 crores in AY 2008-09. In view of the above facts, we do not find any infirmity in the order of ld. CIT(A). The same is sustained and ground no. 3 of the Revenue s appeal is rejected. 20. Respectfully following the decision of Tribunal we hold that assessee was entitled for deduction u/s 10A as it had established a new unit. This ground is allowed. 21. Ground no. 13 is consequential and ground no. 14 is misconceived as no penalty order has been passed. 22. In the result, gr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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