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TMI Blog2022 (4) TMI 840X X X X Extracts X X X X X X X X Extracts X X X X ..... the Hon'ble DRP is against the facts and circumstances of the case. 2. The Hon'ble DRP erred in allowing the claim of the assessee for inclusion of M/s. Ashnoor Textiles Mills Ltd., as a comparable and adjustment on account of personnel cost and also holding that there was no basis for the TPO to reject M/s. Ashnoor Textiles Mills Ltd. holding it as loss making. 3. The Hon'ble DRP erred in holding that the assessee has furnished the details of break-up of employee cost for itself as well as comparables and directing that appropriate adjustment should be allowed to the assessee. 4. The Hon'ble DRP failed to note that the assessee while calculating the PLI of M/s. Ashnoor Textiles Mills Ltd. has not included other op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ft assessment order dated 25.02.2015. The assessee has objected the additions of the TPO/Assessing Officer before the ld. Dispute Resolution Panel. After considering the objections and submissions of the assessee, the ld. DRP has directed the Assessing Officer to include M/s. Ashnoor Textiles Mills Ltd. as a comparable and also directed the TPO to decide the percentage of risk adjustment to be calculated, after taking into account all the relevant facts and details. 2.1 Aggrieved, the Revenue carried the matter in appeal before the ITAT against the order of the ld. DRP. Vide order dated 31.01.2017, the Tribunal has observed that the ld. DRP has no power or authority to direct the TPO to decide the percentage of risk adjustment to be calcul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment order. The Revenue was clear in their mind in the challenge before the Tribunal which was an final order of assessment passed under section 144C(13) and therefore, on facts we found that the DRP has granted relief to the assessee and the correctness of relief granted to the assessee which has translated into a final assessment order which was questioned by the Revenue before the Tribunal on merits. Therefore, on facts we have held as above. 3. Upon the directions of the Hon'ble Jurisdictional High Court, the appeal was taken up for adjudication. Before us, the ld. DR has submitted that the assessee has projected the comparable M/s. Ashnoor Textiles Mills Ltd. margin as 5.06% before the ld. DRP by omitting the other operati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment order. 5. We have heard both the sides, perused the materials available on record and gone through the orders of authorities below. In the first round of litigation, vide order dated 31.01.2017, the Tribunal was of the opinion that the ld. DRP has exceeded its jurisdiction and has no power or authority to direct the TPO to decide the percentage of risk adjustment to be calculated, thereby not adjudicated the issues on merits. After considering the submissions of both the parties and in view of the provisions of section 144C of the Act, the Hon'ble Jurisdictional High Court has held that the order dated 24.11.2015 passed by the ld. DRP is an order of reducing the variation proposed in the draft assessment order dated 25.02.2015 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment order on this issue. 6.1 With regard to the directions of the ld. DRP to ascertain the percentage of risk adjustment, it was the submission before the ld. DRP that there were 334 employees engaged and that the products are manufactured using various types of viscose filament yarns and cotton yarns. It was further explained that the natural yarn was dyed according to the standards and specifications of the customers. The dyed yarns go through certain machine operations before it is assembled by hand workers. Before the ld. DRP, the assessee has furnished comparative chart for percentage of employee cost on turnover and pointed out that the percentage of employee cost on turnover was 3.92% for RIBA Textiles Pvt. Ltd., 7.33% for M/ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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