TMI Blog2022 (5) TMI 1616X X X X Extracts X X X X X X X X Extracts X X X X ..... ation upon Grounds pertaining to the levy of interest u/s 234B and 234D - As the aforesaid grounds have not been adjudicated by the Tribunal in the common order dated 26.03.2021. This being an error apparent on record, order of the Tribunal is hereby recalled on this limited issue also for the purpose of adjudication of Ground No.6 7 of the grounds of appeal of the assessee. Non-consideration of certain facts in the common order - Tribunal in para 7.4 inter alia has observed that no other transaction of purchase of AE is benchmarked with the prices in ICIS-LOR website; that however the applicant s purchase of Paraxylene from AE s was benchmarked using ICIS LOR - HELD THAT:- We find from the order of the Tribunal that the point raised by the assessee was not the sole point to arrive at the final conclusion. The Tribunal has considered the overall facts and circumstances of the case. It cannot be said that any error apparent on record has occurred in the aforesaid order of the Tribunal. The applicant has raised this context in just by disputing one observation made by the Tribunal whereas the order passed by the Tribunal is based on overall facts and circumstances of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On the facts and in the circumstances of the case and in law, Ld. Commissioner of Income-tax (Appeals) ['CIT(A)] has erred in not giving specific directions to compute deduction towards section 80HHC of the Act under MAT by considering adjusted book profits instead of the income under normal provisions, in view of the decision of the Hon'ble Supreme Court in the case of CIT vs. Bhari information Technology Systems (Pvt.) Ltd [(2012) 17 taxmann.com 62 (SC)]. Ground 11: Re-computing deduction allowable under section 80HHC of the Act under the MAI without regard to the sub-section (1B) of Section BOHHC On the facts and in the circumstances of the case and in law, the Appellant humbly requests appropriate directions to allow deduction of hundred percent of profits eligible under section 80HHC of the Act under MAT, in view of subsequent decision of the Hon'ble Supreme Court in the case of Ajanta Pharma vs CIT (2010) 327 ITR 0305]. A copy of the judgment is enclosed as Annexure 1. Ground 12: Allowance of deduction under clause (ii) to Explanation 1 of Section 115JB(2) of the Act relating to lower of brought forward business loss or unabsorbed depre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner of Income Tax (Appeals) was not justified in imposing interest u/s 234B of the Act amounting to Rs.3,99,100/- 7. That on the facts and circumstances of the case, the learned Commissioner of Income Tax (Appeals) was not justified in allowing imposition of interest under section 234D of the Act amounting to Rs.2,52,420/-. 5. We further find that the aforesaid grounds have not been adjudicated by the Tribunal in the common order dated 26.03.2021. This being an error apparent on record, order of the Tribunal is hereby recalled on this limited issue also for the purpose of adjudication of Ground No.6 7 of the grounds of appeal of the assessee. 6. The next contention of the ld. counsel for the assessee is regarding non-consideration of certain facts in the common order dated 26.03.2021. The assessee in this respect has pleaded as under: 9. Non-consideration of material facts on record with respect to certain grounds of Assessee's appeal -ITA 388/Kol/2017 [Ground 4 and 5] a. Applicant had filed Ground Nos. 4 and 5 in respect of the transfer pricing addition upheld by the CIT(A). b. While deciding the above ground against taxpayer, Hon'ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... material, as compared to purchases made by assessee, after the transaction dated 25.3.2003 . With utmost respect we wish to draw attention to submissions and material on record which show that contention of Applicant was slightly different and was that ICIS- LOR rates reflect market prices. To meet urgent business requirement to replenish its low stock urgent purchase made from AE is compared with ICIS LOR spot rate. It is important to consider that AE is also a trader. Therefore, valid comparison in CUP can be made only by comparing the impugned transaction price with spot price, which itself by all means is market price for such terms and conditions. These facts can be seen from the submissions made before lower authorities also as can be seen from appeal records. Hence the conclusion on Grounds of appeal 4 5 appears to result from consideration of mistaken facts. We pray, that Hon'ble Tribunal order dated 26.03.21 be recalled to this extent and justice rendered by considering and adjudicating issues considering complete and correct facts. In view of the above, the Applicant respectfully submits that such obvious error in material facts resulted in grave ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f AE is benchmarked with the prices in ICIS-LOR website; that however the applicant s purchase of Paraxylene from AE s was benchmarked using ICIS LOR. 8. However, we find from the order of the Tribunal that the point raised by the assessee was not the sole point to arrive at the final conclusion. The Tribunal has considered the overall facts and circumstances of the case. The relevant para of the observation of the Tribunal are reproduced as under: On a careful consideration of the rival contentions, perusal of the order of the authorities below as well as case law cited, we are of the considered opinion that the transfer pricing adjustment has to be upheld. The entire adjustment is based on one transaction of purchase of 4754.594 MT of Paraxvlene on 25.03.2003 (Bill of lading date) @ 858.38 USD/MT. The AO compared this purchase price with the purchase price of 4778.496 MT of Paraxylene on 21.03.2003 (Bill of lading date) @ 621.61 USD/MT. We are unable to accept the contention of the assessee that a higher rate was charged by the AE on this purchase, as there was a sudden raise in the international prices of this material, as compared to purchases made by the assessee, af ..... X X X X Extracts X X X X X X X X Extracts X X X X
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