9911796707
TMI Blog2020 (4) TMI 230X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 effect to that vide order dated 14.07.2017 received by the assessee on 18.07.2017. As per the advice given to the assessee at that point of time, the assessee preferred an additional ground before the ITAT on 13.09.2017. However, the Tribunal while adjudicating the additional ground of the assessee in respect of the assessment order passed by the AO dated 27.12.2016 directed the assessee to file separate appeal before the Tribunal and observed that "the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the facts and circumstances of the case, the Learned ("Ld.") TPOIAO and subsequently the Ld. Panel have erred in selection of companies which are functionally not comparable to the assessee. 4, That on the facts and circumstances of the case, the Ld. AO have erred in initiating penalty proceedings u/s. 271(1)(c) of the Act. 5. The Appellant craves leave to add to and/or amend, alter, modify or rescind the grounds 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arks Ltd. (in short GDL). 4. Brief facts of the case are that the assessee company was established in 1991 as a wholly owned subsidiary of TM International Logistics Limited (in short "TMILL"). The assessee company was engaged in providing freight forwarding services to both AEs and non-AEs. According to assessee, it acts as an interface, which is based on manpower driven activity like coordinating between the end customer and the various category of service providers i.e. companies engaged in warehousing, transportation CHA, container freight handling services etc. whose business are based on their assets like CHA license, vehicles, plant and machinery, port handling equipment and warehouses. According to assessee, it has rendered/receive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parable 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 at Rs. 3,19,57,511/- and quantum of downward adjustment in respect purchases was computed at Rs. 67,49,615/- and revised total adjustment at Rs. 3,87,07,126/- and AO gave effect to the order of TPO by revising the total i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... handout) iii) Out of the total assets of INR 139.86 crores, revenue generating assets such as land of INR 23 cr. building of INR 79 cr. vehicles of INR 16.8 cr. yard equipment of INR 7.9 cr. etc. amount to 97.62% of the total assets, as against 5% revenue generating assets of the Assessee. iv) The company has only segment-CFS and no data is separately available for freight forwarding services. (page 862 of PB 2) (page 16 of handout) v) The TPO had erroneously included Gateway in TP order despite having rejected it on account of functional profile. However, the same was rectified by the TPO in rectified order. (Page 463-464 of PB 1) vi) The DRP directed the inclusion of Gateway for maintaining consistency and hence TPO subsequently i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich has railway rakes/trailers beside other JVs. Out of total tangible assets of Rs. 262.35 cr. the company has building and land (174.27 cr.) vehicles (38.42 cr.) yard equipments, electrical installations and P&M (37.70 cr.). FAR is different. 8. The Ld. AR contended that since the facts and law are similar as that of AY 2012-13 the decision of Ld. DRP itself passed in the relevant AY 2012-13 was erroneous and, therefore, this comparable M/s. GDL should be excluded. Per contra, the Ld. DR could not controvert that the ld. DRP had rejected this company as a comparable for AY 2013-14 and has clearly held that the FAR is different from that of the assessee company. And the Ld. DR could not point out any difference in fact or law as of this ..... X X X X Extracts X X X X X X X X Extracts X X X X
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