TMI Blog2017 (7) TMI 1161X X X X Extracts X X X X X X X X Extracts X X X X ..... law and facts are involved, hence they are decided by this common judgment. 2. By way of these appeals, the appellant has challenged the judgment and order of the Tribunal whereby the tribunal has dismissed the appeals of the department confirming order of CIT(A) which has modified the order of AO. 3. This Court admitting the appeal on 11.01.2017, framed the following substantial questions of law:- Income Tax Appeal No.71/2015 (i) Whether the Tribunal was legally justified in deleting the addition of ₹ 1,02,91,000/- made on account of adjustment of the Arm s Length Price of the international transaction on payment of royalty by assessee to its Associated Enterprise, from the income of the assessee u/s 92C? (ii) W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was manufacturing of dyes and pigments . The segmental data for this company was available for F.Y. 02-03 and accordingly the assessee had identified it as a comparable. However, the date for 03-04 and 04-05 were not available on the date, of the study as well as on date. As mentioned earlier, the comparable companies whose contemporary data was available have been taken in the fresh analysis as it best describes the economic scenario and identical market condition. Hence, the margin of this company is not considered for benchmarking the margins of the assessee. (2) Atul Ltd.: This company was proposed to be rejected on the ground of significant related party transactions, as the financial information would not be consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oup of products, such as Sulpha drug intermediates, pharmaceutical intermediates, disinfectants etc. This clearly chows that even the product range of this company are not comparable.. Companies added for benchmarking Manufacturing function margin:. The assessee deals in printing inks with NIC Code 24222. However a search on CMIE (Prowess) database revealed that 2 companies had not been included in the list of comparables. While M/s Indian Toners Developers Ltd. had been taken out by the assessee on the basis of non-comparable product , the company M/s Rainbow Ink Varnish Manufacturing Co. Ltd. had not been identified in the T.P. Study. Accordingly, it had been proposed to include these two companies as comparables. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... significant. On the other hand, this company had been taken out in the manufacturing function on account of noncomparable products (by the assessee). However, it was seen that this also dealing in printing inks. Hence, this is considered a Comparable under both the segments. (2) Metrochem Industries Ltd.: It was proposed to be excluded on account of product differences. The assessee has objected to the same by claiming that this company is dealing in dyes intermediates and hence should be considered. It is observed that this company has been taken as a comparable in the manufacturing segment as well, and hence this is considered as a comparable for both segments. 5. The conclusion which has been reached by the AO ought not t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the subject Assessment Year. It may also be pointed out that the decision of the Tribunal in case of Carlyle India Advisors (P.) Ltd. (supra) was the subject matter to challenge by the Revenue before this Court. This Court by an order dated 22nd February, 2013 refused to entertain the appeal of the Revenue CIT v. Carlyle India Advisors (P.) Ltd. MANU/MH/0544/2013 : [2013] 357 ITR 584/214 Taxman 492/32 taxmann.com 23 (Bom.). 8. We note that finding of the comparable to be adopted to determine the ALP as the basis of the activity conducted by the respondent-assessee is essentially a finding of fact. The view taken by the Tribunal is a reasonable and possible view. Moreover it has not been shown us to be in any manner perverse. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . {supra) to this Court in appeal. The appeal being {CIT v. Carlyle India Advisors (P.) Ltd. MANU/MH/0544/2013 : [2013] 32 taxmann.com 23 (Bom.)) - wherein this Court refused to entertain the Revenue's appeal as is reflected in the order dated 22nd February, 2013. Thus, we see no reason to interfere with the impugned order of the Tribunal; (b) In the circumstance, the Tribunal in the impugned order adopted the same comparable it had adopted in the case of Carlyle India Advisors (P.) Ltd. (supra) for the purpose of arriving at the ALP in respect of its International Transaction; (c) Further, Mr. Kotangale, learned Counsel appearing for the Revenue very fairly points out that a similar issue as arising herein, was a subject matt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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