9911796707
TMI Blog2017 (1) TMI 1739X X X X Extracts X X X X X X X X Extracts X X X X ..... "Transfer Pricing "1. The order passed by the Honorable Dispute Resolution Panel ("DRP") and the learned Assessing Officer ("AO") I Transfer Pricing Officer ("TPO") is not in accordance with the law and is contrary to the facts and circumstances of the present case and in any case in violation of the principle of equity and natural justice. 2. The Honorable DRP and the learned AOITPO erred in fact and in law in determining the Arm's Length Price ("ALP") by adopting the financial data for a single year [i.e. the financial year ("FY") 2005-06] of the com parables as against multiple year data considered by the Appellant. 3. The learned TPO has erred in selecting companies as comparable to the Appellant despite such companies failing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts in upholding the arm's length margin arrived at by the learned TPO by not considering the lower range of 5 percent from the mean margin as allowed under the Act and the Income-tax Rules, 1962 ("Rules"). 8. Without prejudice to all of the above, the Honorable DRP and the learned AO/TPO have erred in facts and in law in applying the provisions of transfer pricing to the Appellant without appreciating the fact that the Appellant was entitled to tax holiday under section 10A of the Act during the relevant year and therefore there would be not be any motive to shift profits to the other country. Adjustments under the Section 10A of the Act 9. The Honourable DRP and the learned AO has erred in law and on facts in concluding that comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being eligible for deduction under section 37 of the Act but only entitled to depreciation at 60 percent. Consequential Grounds 14. The learned AO has erred in not granting a higher foreign tax credit based on the assessed income. 15. The Honourable DRP and the learned AOITPO has erred in law and on facts in levying interest under section 2348 and section 2340 of the Act. The Appellant craves leave to add, alter, vary, omit, substitute or amend the above grounds, at any time before or at the time of hearing of the appeal. Each of the above objections is independent and without prejudice to the other grounds preferred by the Appellant. The Appellant-Company does not have a Managing Director and hence these concise grounds of appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... )/2004 dated 27-06-2007. He submitted a copy of this Tribunal order. He pointed out that the issue involved in this ground is regarding the head of income under which the interest income has to be taxed as to whether it should be taxed under the head "Income from business" or under the head 'Income from "Other sources". At this juncture, a query was raised by the Bench as to whether change of head for taxing interest income will have any impact on the amount of tax payable by the assessee and in reply, it was submitted by the ld. AR of the assessee that in the present year at least, there will be no impact but the assessee wants to keep the issue alive. The Bench opined that if this issue has no impact on the tax liability of the assessee i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ption is claimed or allowed in India. 8. As against this, the ld. DR of the revenue supported the orders of the authorities below. 9. We have considered the rival submissions. Ground no. 1 to 8 and additional grounds are rejected as withdrawn. 10. Ground no. 9 & 10 are allowed by respectfully following the judgment of the Hon'ble Karnataka High Court rendered in the case of M/s Tata Elxsi Ltd. (Supra) wherein it was held by the Hon'ble High Court that the total turnover is sum total of export turnover and domestic turnover and therefore, if an amount is reduced from export turnover then the total turnover also automatically goes down by the same amount. We direct the AO that the expenses he has reduced from the export turnover should als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the actual business income was the income assessed after making such disallowance and the same should be considered for the purpose of computing the deduction allowable u/s 10A of the IT Act, 1961. 14. Regarding ground no. 14, we restore the matter regarding granting of foreign tax credit to the assessee to the file of the AO for a fresh decision with the direction that if it is established by the assessee that an income was taxed in a foreign country and the same was also taxed in India and on such income, no exemption was claimed by the assessee in India then foreign tax paid in a foreign country should be considered for foreign tax credit as per law. The AO should pass necessary order as per law on this aspect after providing adequa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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