TMI Blog2020 (9) TMI 345X X X X Extracts X X X X X X X X Extracts X X X X ..... file of the AO/TPO for deciding the issue afresh in the light of the MAP resolution dated 29th January, 2018 and the order passed by the DRP in assessee s own case for assessment year 2014-15 AO/TPO shall decide the issue as per fact and law after giving due opportunity of being heard to the assessee. We hold and direct accordingly. Grounds raised by the assessee are accordingly allowed for statistical purposes. - ITA No. 7696/Del/2017 - - - Dated:- 8-9-2020 - Shri R.K. Panda, Accountant Member And Ms Suchitra Kamble, Judicial Member For the Assessee : Shri Nageswar Rao, Adv. Ms. Sherry Goyal, Adv. For the Department : Shri Surender Pal, CIT(DR) ORDER PER R.K. PANDA, AM This appeal filed by the assessee is di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rotective adjustment has been deleted by the Hon ble DRP in AY 2011-12 3. The TPO/AO/DRP have erred by not adopting a consistent approach as adopted by their office in AY 2011-12, since a similar protective adjustment has been deleted by the Hon ble DRP in AY 2011-12 4. The TPO/AO/DRP have erred, in law, by not prescribing any method for the purpose of redetermination of ALP, thereby rendering the order under section 92CA(3) of the Act passed by the TPO as illegal, null and void. 5. The TPO/ AO/ DRP have erred in computing the ALP by applying a hypothetical price that would have been charged between related enterprises in controlled circumstances, as the ALP and thereby proposing an adjustment to the appellant s income. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ective assessment in the case of the appellant without appreciating that there is no ambiguity as regards the ownership of the income. 10. The TPO/AO/DRP have erred, in law and facts and circumstances of the case, by violating of the principle of double jeopardy and proposing an addition on the transaction of business restructuring on which the taxpayer has already been penalized in AY 2010-11. 11. The TPO/AO/DRP have made certain arithmetical errors while computing the impugned adjustment to the total income of the appellant. 12. The AO/DRP has erred on facts and in law, in initiating penalty proceedings under section 271(1) (c) of the Act. 3. Facts of the case, in brief, are that the assessee is a company engaged in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ices. For providing network connectivity services to its customers, BTGC India also avails network connectivity services from its Associated Enterprises ( AEs ). Similarly for providing network connectivity services to its customers, AEs of BTGC India avail network connectivity services from BTGC India. 5. Rejecting the various explanations given by the assessee, the TPO proposed an upward adjustment of ₹ 1006937657/- to the total income of the assessee. The AO accordingly, in the draft assessment order, passed on 20th December 2016 added the same to the total income of the assessee. 6. The assessee approached the DRP who upheld the action of the AO/TPO by observing as under :- In this case, the substantive adjustment ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e final assessment order dated 27th October 2017 added the same to the total income of the assessee on protective basis. 8. Aggrieved with such order of the AO/TPO/DRP the assessee is in appeal before the Tribunal. 9. Ld. Counsel for the assessee submitted that the only issue involved in the present appeal related to protective adjustment on account of business restructuring that has take place in asstt. Year 2010-11.He submitted that the TPO/DRP have made adjustment on substantive basis for the assessment year 2010- 11. However, since proceedings in assessment year 2010-11 were subjudice, protective adjustment was made for assessment year 2013-14. He submitted that similar protective adjustments were also made for the assessment year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AO/TPO/DRP and the paper book filed on behalf of the assessee. The only issue to be decided in the present appeal relates to protective adjustment on account of business restructuring that has taken place in assessment year 2010-11. We find that TPO/DRP have made adjustment on substantive basis in assessment year 2010-11. However, since the proceedings in assessment year 2010-11 were subjudice, protective adjustment was made in the impugned assessment order making an addition of ₹ 100,69,37,657/- which is in line with similar addition for assessment year 2011-12, 2012-13 and 2014-15. We find the MAP resolution was passed on 29th January, 2018 which is much after the order passed by the AO/TPO/DRP. Under these circumstances we deem it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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