TMI Blog2017 (4) TMI 1339X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the PAN No. of erstwhile company. Thus complete facts were not brought to the notice of AO at the time of completion of assessment as nothing has been placed on record by the assessee to demonstrate that assessee has furnished the name of the merged company along with their PAN No - for the mistake in the assessment order, the AO alone cannot be held responsible and the assessee is also equally responsible for it - set aside the order of the AO and restore the matter to his file with a direction to pass appropriate order in the name of merged company against its PAN No. - Decided in favour of assessee for statistical purposes. - IT(TP)A No.563/Bang/2016 - - - Dated:- 21-4-2017 - Shri Sunil Kumar Yadav, Judicial Member And Shri S. Jayaraman, Accountant Member Appellant by : Shri K.R. Pradeep, CA Respondent by : Shri G.R. Reddy, CIT(DR)(ITAT)-1, ORDER Sunil Kumar Yadav, Judicial Member This appeal is preferred by the assessee against the order of the Assessing Officer passed consequent to the directions of the DRP inter alia on the following grounds:- 1. That the order of the authorities below, the directions of the Dispute Resolution Panel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Arm's Length Price difference in Software Development services ₹ 7,85,33,060/- 2 Arm's Length Price difference in IT Enabled Services ₹ 28,15,78,052/- 3 Arm's Length Price difference in the Contract Manufacturing ₹ 30,72,68,521/- Total adjustment U /s 92CA ₹ 66,73,79,633/- 12. The AO/TPO/DRP erred in making adjustment of ₹ 7,85,33,060/- towards the Software Development Services, while determining the ALP of the international transactions of the appellant. 13. The AO/TPO/DRP erred in making an adjustment of ₹ 28,15,78,052/- towards the IT Enabled Services, while determining the ALP of the international transactions of the appellant. 14. The AO/TPO/DRP erred in making an adjustment of ₹ 30,72,68,521/- towards the Contract Manufacturing segment, while determining the ALP of the international transactions of the appellant. 15. That learned DRP failed to appreciate that no opportunity was provided to the appellant by the TP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d cogent reasons for rejecting the method followed by the appellant before substituting and prescribing a new method. 27. The onus is on the department to establish there is any tax avoidance and it is essential that incontrovertible evidences are in the possession of the AO before a reference is made as held by the Supreme Court in 131 ITR 597 and further has erred in not relying on the circular. 28. The Learned AO/TPO/DRP have failed to identify comparables in terms of Rule 10B(3). 29. The Learned AO/TPO/DRP failed to make the necessary adjustments as is required in terms of Rule 10B(2). 30. The AO/TPO/DRP erred in not granting the variances deduction of 5% envisaged in the Act and Circular. 31. No opportunity was given to the assessee before making the reference and before according the approval by the CIT. This is against the principles set out by the Hon'ble Supreme Court in Rajesh Kumar vs. DCIT - 287 ITR 91. OTHER ISSUES/ADDITIONS/DISALLOWANCES 32. The Learned DRP failed to adjudicate the disallowance u/s 40(a)(ia) of the Act of professional fees for miscellaneous services and public accountants' fees to the extent of ₹ 2,52,58,803/- inspit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er dated 24.07.2013 of the Hon ble High Court of Karnataka. Despite the fact of merger of assessee company i.e., M/s. GE Medical Systems (India) Pvt. Ltd. with M/s. Wipro GE Healthcare Pvt Ltd. brought to the notice of the AO, but he has framed the assessment in the hands of the merging company i.e., M/s. GE Medical Systems (India) Pvt. Ltd. He has also invited our attention to the fact that even DRP has recognized this fact and has passed the order in the hands of the merged company i.e., M/s. Wipro GE Healthcare Pvt Ltd. Since the assessment order was passed in the hands of non-existing company, the assessment order is not sustainable in the eyes of law and deserves to be quashed. 3. The ld. DR emphatically refuted the contention of the assessee with the submission that the AO issued notice upon the erstwhile company i.e., M/s. GE Medical Systems (India) Pvt. Ltd. u/s. 143(2) dated 31.07.2012. At the time of issuance of notice, the fact of merger of M/s. GE Medical Systems (India) Pvt. Ltd. with M/s. Wipro GE Healthcare Pvt Ltd. was not brought to the notice of the AO. More over, the proceedings were attended by the representatives of the merged company. Therefore, nothing is ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
