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TMI Blog2020 (12) TMI 1371X X X X Extracts X X X X X X X X Extracts X X X X ..... e findings, reasons, conclusions and directions of Dispute Resolution Panel (DRP) u/s 144C are unsustainable in law requires to be set aside. Consequently the additions based on such directions also requires to be set aside. 4. The DRP erred in not considering the relevant materials, evidences, data and relevant law. The directions. issued are without application of mind. 5. That the Orders AO/TPO Directions of the DRP violates the principles of judicial discipline as the binding nature of the orders of the higher appellate authorities have been totally ignored. 6. That the order of the AO/TPO/DRP and the directions given therein are bad in law and not as per law requires to be cancelled. 7. That the AO/TPO/DRP erred in not providing adequate and sufficient opportunity as required under law thus violating the principle of natural justice, hence on this ground alone the orders requires to be annulled. ISSUE OF TRANSFER PRICING 8. That the order of the Transfer Pricing Officer is without jurisdiction, against the law, facts, circumstances, natural justice, equity and all other known principles of law. 9.The learned DRP erred in overlooking the fact that the entire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the adjustment proposed includes non AE transactions. iii. The Learned AO / TPO / DRP erred in wrongly adopting the financial results of the assessee. iv.The Learned AO / TPO / DRP erred in comparing the appellant's distribution margin with comparables which are not in the business of trading/ distribution. v. The Learned AO / TPO / DRP erred in not following their own orders passed for the earlier asst. years on this issue. vi. The selection of the method by the Learned AO / TPO / DRP is not as per law. vii. The Learned AO / TPO / DRP erred in not granting the variances deduction envisaged in the Act and Circular. viii. The Learned AO / TPO / DRP erred in not carrying out the adjustments as required under law as well as the facts. ix. The Learned AO/TPO/DRP have failed to identify a comparable in terms of Rule 10B(3). x. The Learned TPO/DRP erred in rejecting certain comparables on unsustainable and untenable grounds/reasons while considering comparables which failed to meet the filters /criteria as required under law. xi) The AC/TPC/DRP erred in rejecting the following comparables selected by the assessee 1) Advanced Micronics Devices Ltd 2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... / DRP erred in not carrying out the adjustments like risk, working capital, etc., as required under law as well as the facts. iv The Learned AO / TPO / DRP erred in wrongly adopting the financial results of the assessee. v)The Learned AO/TPO/DRP have failed to identify a comparable in terms of Rule 10B(3). vi)The Learned TPO/DRP erred in rejecting certain comparables on unsustainable and untenable grounds/reasons while considering comparables which failed to meet the filters /criteria as required under law. vii) The Learned AO/TPO/DRP erred in not granting the variances deduction envisaged in the Act and Circular. The Learned TPO/DRP have failed to apply the provisions of Rule 10B(4)&(5) & 10CA(2) while selecting the criteria and filters. viii)The learned TPO / DRP erred in rejecting R & D expense more than 3% on turnover to eliminate companies engaged in R & D activities. ix)The learned TPO / DRP erred in applying the software development service income threshold of 75% to sales to select comparable companies. x)The learned TPO / DRP erred in rejecting the comparable companies having ratio of employee cost to sales less than 25%. xi)The Learned TPO/DRP erre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wance can be made u/s 40(a)(ia) of the Act. 19. The above disallowances have been made without providing sufficient and adequate opportunity as required under law and the Act. On this ground alone the above disallowances requires to be deleted. 20. The Learned AO/DRP erred in not granting relief u/s 90 of the Act to the extent of Rs.11,72,448/- and no reasons have been given for not giving credit for the above amount. 21. The Learned AO/DRP erred in not giving TDS credit amounting to Rs.1,14,36,741/- and no reasons or explanations have been given for denying the credit. ISSUE OF INTEREST U/S.234 B&C 22. The appellant denies the liabilities for interest u/s 234B & C of the Act. Further prays that the interest if any should be levied only on returned income. No opportunity has been given before the levy of interest u/s 234 B & C of the Act. 23. Without prejudice to the appellants right of seeking waiver before appropriate authority the appellant begs for consequential relief in the levy of interest u/s 234B & C of the Act. 24. For the above and other grounds and reasons which may be submitted during the course of hearing of this appeal, the assessee requests that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst comparables selected by Ld.TPO and simply followed DRP directions issued for AY 2014-15. As AY: 2014-15 has been set aside by this Tribunal, we deem it fit and proper to remit the issues to file of Ld.AO/TPO for taking necessary action of passing a speaking order by granting fair opportunity to assessee of being heard. It is also observed that all these are pending before lower authorities and we find no reason adjudicate these issues at this stage. Accordingly, following earlier orders passed by this Tribunal in assessee's own case, we set aside all issues to Ld.AO for readjudication of issues in the light' of the findings given in earlier years. (Refer Annexure 1).
7. In respect of Ground No.16, being disallowance of provision for onerous contract amounting to Rs.60,00,000/-. Ld.AR could not prove from the records that the same has been debited to profits & Loss account. Accordingly we reject this ground. However, assessee may claim such amount in relevant year of Accrual. Accordingly Ground No.16 sands dismissed.
8. In the result appeal filed by assessee stands partly allowed for statistical purposes.
Order pronounced in the open court on 11th Dec, 2020 X X X X Extracts X X X X X X X X Extracts X X X X
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