9911796707
TMI Blog2020 (11) TMI 116X X X X Extracts X X X X X X X X Extracts X X X X ..... order giving effect to DRP directions was not passed within the permitted time period, the Hon'ble CIT(A) erred in not explicitly quashing the impugned assessment proceedings, being void ab initio. 3. The Ld. AO erred on facts and in law in enhancing the income of the Appellant by INR 83,857,011 holding that the international transactions pertaining to provision of Information Technology enables Services ('ITeS') and cost reimbursements do not satisfy the arm's length principle envisaged under the Act and in doing so have grossly erred by: a. not appreciating that none of the conditions set out in section 92C(3) of the Act are satisfied in the present case; b. imputing a mark-up on the international transaction pertaining to reimbursement of expenses received from Associated Enterprise ('AE'), ignoring the fact that such reimbursements are mere noncore, non-value adding pass through transactions; thereby treating such cost reimbursement transaction as part of the core transaction of the Appellant and re-computing the Profit Level Indicator ('PLI') after considering the same as part of the operating revenue and operating cost; c. rejectin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uate application of mind with the single-minded intention of making an addition to the returned income of the Appellant; 3.2. including certain companies having significantly higher turnover vis-a-vis the Assessee; 3.3. including certain companies that are not comparable to the Appellant in terms of functions performed, assets employed and risks assumed; 3.4. resorting to arbitrary rejection of low-profit/ loss making companies based on erroneous and inconsistent reasons; 3.5. excluding certain companies on arbitrary/ frivolous grounds even though they are comparable to the Appellant in terms of functions performed, assets employed and risks assumed; 3.6.Collecting selective information of the companies by exercising power granted to section 133(6) of the Act that was not available to the Appellant in the domain and relying on the same for comparability purposes (and to the sent of completely ignoring reliable data available in public domain/ annual reports in numerous cases) a. and further in doing so violating the fundamental principles of natural justice by not sharing with the Appellant, in case of a number of comparables, the information/ reply received by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he rate applicable to loans. 5. The Ld. AO have grossly erred by disregarding judicial pronouncements in India in undertaking the TP adjustment. 6. The Ld. AO has grossly erred on facts and in law by levying interest under section 234A, 234B and 234C of the Act mechanically and without recording any satisfactory reasons for the same. The above grounds of appeal are without prejudice to each other." ADDITIONAL GROUNDS " That on the facts and circumstances of the case and in law, the orders passed by the Commissioner of Income Tax (Appeals)/AO")/ Transfer Pricing Officer ("TPO") are bad in law and void ab initio as the same have been passed on a non-existent entity, namely Genpact Infrastructure (Hyderabad) Pvt. Ltd." 3. The assessee Company is engaged in the business of providing IT and IT Enabled Services to different clients. The assessee also received the reimbursement of expenses from its Associated Companies in Bermuda. The assessee also got substantial amounts outstanding from AE Genpact International Inc (Hungarian Branch), which has been outstanding for a very long time. The assessee filed e-return of income on 8/10/2008 declaring income of Rs. 5,65,511/-. Ge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... viously known as Genpact Infrastructure (Bhopal) Private Limited)(ITA 168/2019, CM Appl. 40543/2019 order dated 17.09.2019) Delhi High Court vi) PCIT v. Genpact India (previously known as Genpact Infrastructure (Kolkata) Private Limited)(ITA 172/2019, CM Appl. 40541/2019 order dated 17.09.2019) Delhi High Court vii) PCIT v. Transcend MT Services (P.) Ltd. (2019) 109 taxmann.com 421 (Del.) viii) DCIT vs. Mapsa Logistics (P.) Ltd. ITA Nos. 2666, 2667 & 2669/Del/2017 Tri. ix) V3S Infratech Ltd. vs. DCIT ITA Nos. 6514 & 6515/Del/2016 x) Spice Entertainment Ltd. vs. CIT 280 ELT 43 (Del) xi) CIT vs. Spice Infotainment Ltd. Civil Appeal 285 of 2014, Judgment dated November 2, 2017 (SC) xii) CIT vs. Dimension Apparels (P) Ltd. (2014) 370 ITR 288 xiii) PCIT vs. Maruti Suzuki India Limited (2017) 397 ITR 681 (Del) xiv) PCIT vs. Maruti Suzuki India Limited (SLP(C) Diary No. 14106 of 2018) xv) CIT vs. Micra India (P.) Ltd. (2015) 231 Taxman 809 xvi) PCIT vs. Nokia Solutions and Networks India Pvt. Ltd. 402 ITR 21 (Del. HC) xvii) CIT vs. Micron Steel (P.) Ltd. (2015) 372 ITR 386 xix) BDR Builders and Developers Pvt. Ltd. vs. ACIT (2017) 397 ITR 529 (Del. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 019] 260 Taxman 412 (Del.) 31 (2019) 261 Taxman 137 (Guj) existing undertakings into one undertaking, the shareholders of each blending company become substantially the shareholders in the company which is to carry on the blended undertakings. There may be amalgamation either by the transfer of two or more undertakings to a new company, or by the transfer of one or more undertakings to an existing company. Strictly 'amalgamation' does not cover the mere acquisition by a company of the share capital of other company which remains in existence and continues its undertaking but the context in which the term is used may show that it is intended to include such an acquisition. See: Halsbury's Laws of England (4th edition volume 7 para 1539). Two companies may join to form a new company, but there may be absorption or blending of one by the other, both amount to amalgamation. When two companies are merged and are so joined, as to form a third company or one is absorbed into one or blended with another, the amalgamating company loses its entity." (iv) Fourthly, upon the amalgamating company ceasing to exist, it cannot be regarded as a person under Section 2(31) of the Act 1961 agai ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
