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TMI Blog2018 (5) TMI 2084X X X X Extracts X X X X X X X X Extracts X X X X ..... desk. The Appellant has attached a copy of the attendance register and medical certificate along with this Affidavit. 9. Because of the serious nature of the illness, he was either on leave or was working from home for a short period till November, 2011. Copy of the attendance register evidences this fact. 10. Eventually, the receipt of the Assessment Order came to the notice of the Appellant only on December 7, 2011 and the same was communicated to the consultants on the same day for appropriate action. However, by that time, the due date for filing of the appeal had already elapsed. 11. The appeal documents were immediately prepared and the appeal was filed by the appellant with the ITAT on December 15, 2011. Thereby, the appeal filed by the appellant was delayed by 20 days from the actual due date of November 25, 2011. 12. The Appellant submits that the delay in filing the appeal papers are not intentional and was due to unforeseen circumstances. The Appellant submits that the time limit fixed for filing the appeal is not meant to destroy the right of the parties. They are meant to see that the parties do not resort to dilatory tactics. 13. The appellant submits that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ul consideration of the submissions/reasons put forth by the assessee in the Affidavit, we are of the opinion that there was no malafide on the part of the assessee; and there was sufficient and reasonable cause for delay of 20 days delay in filing the appeal. We are also of the view that even if the delay is condoned, there would be no loss to the Revenue as legitimate taxes payable in accordance with law alone will be collected. We, therefore, being of the opinion that this is a fit case for condonation of delay; accordingly condone the delay in filing this appeal before the Tribunal and admit the appeal for consideration and adjudication. It is ordered accordingly. ORDER This appeal by the assessee is directed against the final order of assessment passed under Section 143(3) r.w.s. 144C of the Income Tax Act, 1961 (in short 'the Act') vide order dt. 23.9.2011 for Assessment Year 2007-08; in pursuance to the directions issued by the Dispute Resolution Panel (DRP), Bangalore under Section 144C of the Act on 20.9.2011. 2. Briefly stated, the facts of the case are as under :- 2.1 The assessee company, a wholly owned subsidiary of Flowserve Corporation, USA, is engaged in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appeal related to 'Management Charges' and had retained other grounds, including those related to adjustments made towards Design Services Segment. 3.2 The assessee has two manufacturing divisions, one manufacturing pumps and the other manufacturing valves. The assessee also renders engineering and design services to its AEs. The segmental details were provided by the assessee before the TPO and the TPO has accepted the transactions related to the manufacturing segment to be at arm's length and did not propose any adjustment in this segment. However, the TPO determined the ALP of management charges to be NIL The TPO also rejected the comparability analysis carried out by the assessee, with regard to the Design and Engineering Services Segment and conducted his own TP Study. While doing so, the TPO characterized the design services as 'ITES'; conducted his own comparability analysis, selected a set of 20 comparable companies and determined the margin at 23.65% thereby making an adjustment of Rs. 68,31,724 to the Design and Engineering Services Segment. The entire management charges of Rs. 7,70,99,285 was added to income of the assessee by way of an adjustmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the learned TPO and the learned AO erred in concluding that the assessee is exposed to single customer risk without evaluating the business arrangement of the Appellant. 3. That the learned TPO and the learned AO erred in disregarding the use of multiple year data, instead of accepting the use of contemporaneous data due to non-availability of current year data in the public domain at the time of preparing the documentation. 4. That the learned TPO and the learned AO erred in not allowing the benefits of market risk adjustment to the Appellant. 5. That the learned TPO and the learned AO erred in not allowing the benefit of range of +/- 5% as provided in proviso to Section 92C(2) of the Act to the Appellant, while determining the arm's length price. II. Corporate Tax 6. Re-computation of deduction allowable under section 10A and 10B of the Income-tax Act, 1961 (the Act) 6.1. The learned Assessing Officer (AO) has erred in recomputing the deduction under section 10A and 10B of the Act by adjusting the following expenses from the Export Turnover: 6.2. The learned AO has erred in reducing foreign travel expenditure incurred in foreign currency from Export Turnover u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reduced from the Total Turnover in order to compute the deduction under section 10A. 7. Interest levied under section 234B of the Act The learned AO has erred in levying interest under section 234B of Rs. 8,138,410 which is consequential in nature. 8. Interest levied under section 234D of the Act The learned AO has erred in levying interest under section 234D of Rs. 32,073 which is consequential in nature." 5. Ground No. 1 being general in nature, no adjudication is called for therein. 6. Ground Nos. 2 to 5 - Design &Engineering Services. 6.1 Several grounds (supra) have been raised in respect of the Design & Engineering Services Segment. 6.2.1 The assessee has also filed a letter dt. 3.10.2017 i.e. an application under Rule 11 of ITAT Rules, 1963 seeking permission for raising additional grounds, inter alia, specifying the companies that are to be excluded from the set of comparable companies; the companies it seeks inclusion in the set of comparable companies applying the employee cost filter of 25% on sales, etc. which are extracted hereunder :- "Ground No. 2.2.1: The Learned Transfer Pricing Officer ("Ld. TPO")/Learned Assessing Officer ("Ld. AO") and Hon'ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le selecting the comparable companies. Reason for filing Additional Ground of Appeal The Appellant during the proceedings before the Hon'ble DRP had raised the above ground. However, it is submitted that due to clerical oversight, the ground was omitted to be included in the Form 36B preferred before this Hon'ble ITAT. Accordingly, the Appellant humbly requests the Hon'ble Bench members to accept the above ground. Ground No. 2.8: The Appellant seeks exclusion of the following companies from the list of companies proposed as comparables by the Ld. TPO. * Allsec Technologies Limited; * I Services India Private Limited; and * Triton Corp Limited Reason for filing Additional Ground of Appeal The Appellant submits that it had not raised grounds for rejection of the above-mentioned companies before the Ld. TPO or before the Hon'ble DRP due to lack of relevant details during that time. However, subsequent to filing the Form 36B, the Appellant has come to the notice that by way of various tribunal rulings the above-mentioned companies have been directed to be rejected. Therefore, by applying similar approach the Appellant humbly request the Hon'ble b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Authorised Representative submitted that the assessee has got partial relief from MAP resolution with respect to payments of "Management Charges", pursuant to which there should be a revision in the operating margin of the assessee. Therefore, the TPO should rework the margin of the assessee pursuant to MAP resolution and the adjustments needs to be reworked. In support of this alternate contention, it was pointed out that the Assessing Officer himself has reworked the margin for Assessment Year 2011-12 as "Management Charges" has been partially disallowed as evidenced in the Assessing Officer's letter dt. 27.7.2017, conveying the MAP resolution to the assessee. It is submitted that in view of the above, the TPO should re-examine this issue afresh in the light of the submissions put forth above. 6.4 Per contra, the learned Departmental Representative while agreeing to the proposal that the issue requires a fresh examination, pointed out that the assessee has identified itself as an ITES provider in the search process. 6.5.1 We have carefully considered the submissions made and the material on record and are of the view that it was not correct to characterize the assessee as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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