TMI Blog2020 (4) TMI 230X X X X Extracts X X X X X X X X Extracts X X X X ..... s reasons given to exclude M/s. GDL is self explanatory, therefore, we agree with the contention of the assessee that M/s. GDL cannot be included as a comparable for computing the ALP, therefore, we direct M/s. GDL should not be included as a comparable while computing ALP. The appeal of the assessee is allowed. - I.T.A. No. 1385/Kol/2018 - - - Dated:- 18-3-2020 - Shri A. T. Varkey, JM And Dr. A.L. Saini, AM For the Appellant : Shri Soumen Saha Ms. Rachna Agarwal, AR For the Respondent : Shri Vijay Shankar, CIT, DR ORDER PER SHRI A.T.VARKEY, JM: This is an appeal preferred by the assessee against the order of AO dated 27.12.2016 pursuant to the TPO passing the revised order u/s. 92CA(5) r.w.s. 92CA(3) of the Income-tax Act, 1961 (hereinafter referred to as the Act ) dated 16.06.2017 and the AO passing the revised order dated 14.07.2017. 2. At the outset, we note that there is a delay of 283 days in filing this appeal before this tribunal. According to assessee, though the final assessment order was passed by the AO dated 27.12.2016 after the DRP order, subsequently the TPO passed a revised order dated 16.06.2017 and accordingly, the AO gave effe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds hereinabove before or at the time of hearing of the appeal. 4. The ld. Counsel for the assessee Shri R.N.Dutt, Advocate pleaded for admission of additional grounds. The ld. DR opposed the same on the ground that they arise out of an order passed u/s 154 of the Act. 5. After hearing the rival submissions, we find that the additional grounds arise out of a rectification order passed by the AO u/s 154 of the Income Tax Act, 1961 (Act). Though the assessee pleads that there is a merger, we are of the considered opinion that the proceedings made by the AO u/s 154/92CA(5) r.w.s. 92CA(3)/144C/143(3) of the Act dated 14.07.2017 is a separate proceedings and has to be separately challenged, as the assessee wishes to challenge as to whether the rectification in question carried out by the AO to the final assessment order are mistakes apparent on record or not. Such a challenge to the Sec.154 proceedings can be done only by filing separate appeal against the Sec.154 order. 6. Hence we do not admit these additional grounds of appeal. The assessee is free to file an appeal against the order passed by the AO u/s 154 of the Act. The delay in ITA No.280/Kol/2017 T.K.M.Globa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rejected by TPO TPO has contradicted itself by selecting Arshiya as a comparable despite its being engaged in warehousing business, while having himself rejected Gateway Distriparks Ltd. on account of its being engaged in warehousing business and therefore being functionally not comparable to the assessee. The panel has directed inclusion of Arshiya Om Logistics on similar functionality. In order to have uniformity and consistency, this entity should also be included. Thereafter, the TPO while giving effect to the Ld. DRP s direction did not make any adjustment by not including M/s. GDL as one of the comparable companies. Since the TPO did not include M/s. GDL while giving effect to the order of the DRP which resulted in AO passing the final assessment order and the assessee did not prefer any appeal against the final order of the AO dated 27.12.2016. Thereafter, the TPO issued notice u/s. 154 and revised the TP order by including M/s. GDL and computed the ALP (mean margin) and revised the adjustment under the head sale and purchase of services. Accordingly, the quantum of upward adjustment in respect of sale was computed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) The DRP directed the inclusion of Gateway for maintaining consistency and hence TPO subsequently included it again in the TP order (page 493 of PB 1). 7. It was also pointed out that in assessee s own case the Ld. DRP for AY 2013- 14 had directed the TPO to exclude this company on account of acquisition of Punjab State Warehousing Company in the year 2007 for fifteen years; (1)for having a rail subsidiary Gateway Rail Freight Ltd. (2) for having high asset base and (3) for having FAR different from assessee and drew our attention to page 8 of DRP direction for AY 2013-14. We note that for AY 2013-14, the Ld. DRP vide its order dated 25.08.2017 has directed exclusion of comparable M/s. GDL as under: Sl. Comparable TPO Assessee DRP 4 Gateway Distriparks Ltd. Rejected by TPO More than 90% of its revenue is from transportation, rental of container freight station, and container handling. Company is operating container freight station/terminal for keeping containers TPO has contradicted itself by selecting Arshiya as a comparable despit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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