TMI Blog2014 (8) TMI 1099X X X X Extracts X X X X X X X X Extracts X X X X ..... ns and completing it. He has recorded a finding of fact that grounds 2 to 10 relates to transfer price adjustment. The order passed by the assessing officer under section 143(3) of the Act reveals that there is a specific material on record. The assessee is a captive service provider rendering back office support service to its affiliate enterprises. The activities undertaken by the assessee are essentially IT enabled services such as data entry, transcription and audit of shipping bills such as bill of lading. The detailed reference is made from para 4.2. onwards by the Commissioner to all the material that has been produced and failure on the part of Transfer Pricing Officer to perform his duties. The Tribunal also has referred to this material and rendered a finding of fact that if initial burden on the assessee has been discharged in this case by producing evidence, then, it is for the Transfer Pricing Officer or the assessing officer to consider it and conclude that the instances are not comparable. Any comparable cases as brought by the assessee could have been scrutinized in this backdrop and on this touchstone. The findings of the First Appellate Authority were under cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... addition on account of adjustment to Arm's length price (in short 'ALP'). Mr.Pinto submits that though, the substantial questions of law as framed in the present appeals are not happily worded, yet, the basic foundation of these appeals is refusal by the Tribunal and equally by Commissioner of Income Tax (Appeals) to send back the case to the assessing officer or the Transfer Pricing Officer. That would have served the ends of justice, according to Mr.Pinto. In his submission, he submits that the Transfer Pricing Officer had no opportunity to examine the cases which have been placed on record. Whether the instances which have been placed on record by the assessee are comparable or not is an exercise which is required to be carried out by the Transfer Pricing Officer in terms of section 92CA of the Income Tax Act, 1961. He had no opportunity to do so as the Commissioner and the Tribunal both decided to take up the instances and find out whether they were comparable. The Transfer Pricing Officer has held that the assessee did not furnish any material to show that these were comparable. Therefore, it was in the fitness of things that the Commissioner ought to have restore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resentative was submitting before the Tribunal that the Transfer Pricing Officer had no opportunity to consider the documents and the record and which has been duly noted and considered by the Tribunal. The departmental representative argued that there were nine cases chosen by the assessee as per the table C in the final list of comparables and which is drawn by the Commissioner of Income Tax (Appeals). These were not before the officer and that is how the matter ought to go back to the Transfer Pricing Officer. Mr.Kaka submits that from para 31 of the order of the Tribunal, it would be apparent that record was very much there before the Transfer Pricing Officer. He did not perform his duty in law and that is how the Commissioner had to step in and eventually the Tribunal upheld the order of the Commissioner. Therefore, the Tribunal did not and rightly permit the departmental representative to argue the appeal contrary to the record. This appeal, therefore, does not raise any substantial question of law and deserves to be dismissed. 6. With the assistance of Mr.Pinto and Mr.Kaka, we have perused the memo of appeal and all annexures thereto, including the impugned order. We are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... half was furnished by the assessee, then, it would be the bounden duty of the Transfer Pricing Officer to pass an order in terms of sub-section (3) of section 92CA of the Income Tax Act. He having failed to do so, the Commissioner was fully justified in undertaking the exercise in terms of the statutory provisions and completing it. He has recorded a finding of fact that grounds 2 to 10 relates to transfer price adjustment. The order passed by the assessing officer under section 143(3) of the Act reveals that there is a specific material on record. The assessee is a captive service provider rendering back office support service to its affiliate enterprises. The activities undertaken by the assessee are essentially IT enabled services such as data entry, transcription and audit of shipping bills such as bill of lading. The detailed reference is made from para 4.2. onwards by the Commissioner to all the material that has been produced and failure on the part of Transfer Pricing Officer to perform his duties. The Tribunal also has referred to this material and rendered a finding of fact that if initial burden on the assessee has been discharged in this case by producing evidence, then ..... X X X X Extracts X X X X X X X X Extracts X X X X
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