ROYAL CANIN INDIA P.LTD, MUMBAI V. ASST CIT 11(1)(1), MUMBAI

ITA 1053/MUM/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 4013 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-04-2016
• Appeal Filed By: Assessee
• Bench Allotted: K
• Assessment Year: 2010-2011
• Appeal Filed On: 18-02-2015
• Court: TRIBUNAL
• Department Lawyers: N K CHAND
• Assessee Lawyers: S SOPARKAR SHRI B SOPARKAR
• Keywords: Related party transaction; Depreciation; Transfer pricing; International transaction; Additional evidence; Onus to prove
• Section: 143(3); 92D

Judgement Text

, , K, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES K, MUMBAI BEFORE SHRI SAKTIJIT DEY, JUDICIAL MEMBER, AND SHRI ASHWANI TANEJA, ACCOUNTANT MEMBER ITA NO.1053/MUM/2015 ASSESSMENT YEAR: 2010-11 ROYA L CANIN INDIA PRIVATE LIMITED, NICHANI BUILDING, 4 TH FLOOR, 12/A JUHU TARA ROAD, MUMBAI-400049 / VS. ACIT 11(1)(1), R.NO.204, 2 ND FLOOR, AAYAKAR BHAVAN, M.K. RD. MUMBAI-400020 (ASSESSEE ) (REVENUE) P.A. NO. AADCR4417J / ASSESSEE BY SHRI S. SOPARKAR SHRI B. SOPARKAR (AR) / REVENUE BY SHRI N.K. CHAND (DR) / DATE OF HEARING : 16/03/2016 / DATE OF ORDER: 13/04/2016 / O R D E R PER ASHWANI TANEJA (ACCOUNTANT MEMBER): THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ASSESSMENT ORDER PASSED UNDER SECTION 143 (3) READ WITH SECTION 144C (5) OF THE INCOME TAX ACT, 1961, WHICH WAS PASSED IN PURSUANCE TO DIRECTIONS OF THE DISPUTE RE SOLUTION PANEL UNDER SECTION 144C (5) OF THE ACT VIDE ORDER DATED ROYAL CANIN INDIA P. LTD. 2 12.12.2014. THE ASSESSEE HAS TAKEN FOLLOWING GROUND S IN THE APPEAL MEMO: TRANSFER PRICING GROUNDS THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, AN D IN LAW; 1.THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, AND IN LAW, THE ASSESSMENT ORDER DATED JANUARY 25, 2015 PA SSED UNDER SECTION 143(3) R.W.S. 144C OF THE INCOME TAX ACT, 1961 ('THE ACT') IN PURSUANCE TO THE DIRECTIONS ISSUED B Y THE LEARNED DISPUTE RESOLUTION PANEL ('LD. DRP') IS BAD IN LAW. 2.THAT THE LD. DRP ERRED ON FACTS AND IN LAW IN CON FIRMING THE ADDITIONS/ DISALLOWANCES PROPOSED IN THE DRAFT ORDER PASSED BY THE LEARNED ASSESSING OFFICER ('LD. AO') WITHOUT JUDICIOUSLY CONSIDERING THE FACTUAL AND LEGAL OBJEC TIONS TO THE DRAFT ASSESSMENT ORDER. 3. THAT THE LD. DRP ERRED, BOTH ON FACTS AND IN LAW , IN CONFIRMING THE ADDITION OF RS.3,03,37,266 BY HOLDIN G THAT THE APPELLANT'S INTERNATIONAL RELATED PARTY TRANSACTION S DO NOT SATISFY THE ARM'S LENGTH PRINCIPLE AS ENVISAGED TIN DER THE ACT, AND IN DOING SO THE LD. DRP HAS GROSSLY ERRED IN AGREEING WITH THE LD. TRANSFER PRICING OFFICER'S (' TPO') ACTION OF: 3.1 DISREGARDING THE ARM'S LENGTH PRICE ('ALP') AND THE METHODICAL ECONOMIC BENCHMARKING PROCESS CARRIED OU T BY THE APPELLANT IN THE TRANSFER PRICING ('TP') DOCUME NTATION MAINTAINED BY IT IN TERMS OF SECTION 92D OF THE ACT READ WITH RULE 10D OF THE INCOME- TAX RULES, 1962 ('RULES'); 3.2 NOT ACCEPTING THE OVERSEAS ASSOCIATED ENTERPRIS ES ('AES') AS THE TESTED PARTY, BEING THE LEAST COMPLE X OF THE TRANSACTING ENTITIES AND INSTEAD CONSIDERING THE AP PELLANT AS THE TESTED PARTY, THUS VIOLATING THE BASIC PRINC IPLES OF TP; 3 . 3 DISREGARDING THE APPROACH ADOPTED BY THE APPELLANT OF UNDERTAKING A FOREIGN BENCHMARKING IN THE TP REPORT WHICH IS IN LINE WITH THE GLOBALLY ACCEPT ED TP PRINCIPLES; 3 . 4 ARBITRARILY SELECTING THE APPELLANT AS THE TESTED PARTY WITHOUT EXAMINING THE FUNCTIONAL PROFILE AND COMPLE XITY OF OPERATIONS OF APPELLANT VIS-A-VIS THE AES; 3 . 5 NOT ACCEPTING FOREIGN COMPARABLES FOR BENCHMARKIN G THE OVERSEAS AE AS THE TESTED PARTY BASED ON CONJEC TURES AND SURMISES. ROYAL CANIN INDIA P. LTD. 3 4. WITHOUT PREJUDICE TO THE ABOVE GROUNDS, THAT THE HON'BLE DRP/ LD. AO/ LD. TPO HAVE ERRED IN MAKING AN ADJUST MENT TO THE TOTAL COST BASE OF THE APPELLANT WHILE SELEC TING THE APPELLANT AS THE TESTED PARTY, INSTEAD OF RESTRICTI NG THE ADJUSTMENT TO THE VALUE OF INTERNATIONAL TRANSACTIO NS. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. AO/DRP HAS ERRED IN DISREGARDING SOUND TP PRINCIPLES AND JUDICIAL PRONOUNCEMENTS IN INDIA IN UNDERTAKING THE TP ADJUSTMENT. ' CORPORATE TAX GROUNDS 6. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, BOTH THE LD. AO/ DRP ERRED ON FACTS AND IN LAW, IN DISALLOWING THE DEPRECIATION AMOUNTING TO RS. 44,08 8 OUT OF THE TOTAL DEPRECIATION CLAIMED BY THE ASSESSEE ON A CCOUNT OF ADDITIONS TO COMPUTERS. 6.1 THAT THE LD. AO ERRED ON FACTS AND IN LAW IN TR EATING PRINTER, SCANNER AND SPEAKERS AS BEING GENERAL PLAN T & MACHINERY ELIGIBLE FOR DEPRECIATION @ 15% AND IGNOR ING THE FACT THAT SUCH PRINTER, SCANNER AND SPEAKERS ARE PA RT OF 'COMPUTERS INCLUDING COMPUTER SOFTWARE' ELIGIBLE FO R DEPRECIATION @ 60%. 2. DURING THE COURSE OF HEARING, ARGUMENTS WERE MADE B Y SHRI S. SOPARKAR & SHRI B. SOPARKAR, AUTHORISED REPRESENTATIVE (AR) ON BEHALF OF THE ASSESSEE AND B Y SHRI N.K. CHAND, DEPARTMENTAL REPRESENTATIVE (CIT-DR) ON BEHA LF OF THE REVENUE. 3. GROUND NOS. 1 TO 5: THESE GROUNDS DEAL WITH THE TRANSFER PRICING ISSUES. LEARNED COUNSEL OF THE ASSESSEE BEG AN HIS ARGUMENTS WITH HIS FOREMOST REQUEST TO CONSIDER HIS PETITION FILED BEFORE THE TRIBUNAL UNDER RULE 29 OF THE INCO ME TAX APPELLATE TRIBUNAL. IN THIS PETITION, LD. COUNSEL M ADE A REQUEST TO FILE VARIOUS ADDITIONAL EVIDENCES WHICH COULD NOT BE FILED BEFORE THE DISPUTE RESOLUTION PANEL BECAUSE N O ROYAL CANIN INDIA P. LTD. 4 OPPORTUNITY WAS GIVEN BY THE DRP BEFORE TAKING ADVE RSE VIEW AGAINST THE ASSESSEE. IT HAS BEEN BROUGHT TO OUR NO TICE BY THE LEARNED COUNSEL THAT BEFORE THE DRP, REQUEST WAS MA DE BY THE ASSESSEE VIDE APPLICATION DATED 17.4.2014 THAT ITS INTERNATIONAL TRANSACTIONS SHOULD BE ANALYSED AND BENCHMARKED USING THE FOREIGN ASSOCIATED ENTERPRISE (AE) AS THE TESTED PARTY. THE DRP PRINCIPALLY ACCEPTED THE REQUEST OF THE ASSESSEE TO TREAT THE FOREIGN AE AS TESTED PART Y, BUT HELD THAT SUFFICIENT EVIDENCES WERE NOT PROVIDED BY THE ASSESSEE TO ENABLE IT TO MAKE COMPLETE ANALYSIS OF THE COMPARAB LES. UNDER THESE CIRCUMSTANCES, THE COMPARABLES SUGGESTED BY T HE ASSESSEE WERE REJECTED AND THE ADDITION MADE BY THE ASSESSING OFFICER WAS UP HELD. IT WAS SUBMITTED THAT THE DRP COULD HAVE ASKED THE ASSESSEE TO GIVE FURTHER INFORMATION/EVID ENCES BEFORE REJECTING THE CLAIM OF THE ASSESSEE IN AN UN FAIR MANNER. IT HAS BEEN FURTHER SUBMITTED THAT THE ASSESSEE HAS NOW COMPELLED COMPLETE EVIDENCES IN SUPPORT OF THE COMP ARABLES SUGGESTED BY THE ASSESSEE. IT HAS BEEN SUBMITTED BY HIM THAT THE ADDITIONS MADE BY THE LOWER AUTHORITIES WITHOUT GIVING ADEQUATE OPPORTUNITY OF HEARING ARE UNFAIR AND UNJU STIFIED. THEREFORE, UNDER THESE CIRCUMSTANCES, THE ADDITIONA L EVIDENCES FILED BY THE ASSESSEE NOW SHOULD BE TAKEN ON RECORD AND THE MATTER MAY BE SENT BACK TO THE FILE OF THE ASSESSING OFFICER/TPO FOR CONSIDERING THESE EVIDENCES AND TAK ING A FRESH DECISION AFTER CONSIDERING THESE EVIDENCES AND OTHE R MATERIAL AS MAY BE COLLECTED BY THE TPO AFTER MAKING FRESH S EARCH. ROYAL CANIN INDIA P. LTD. 5 3. ON THE OTHER HAND, LEARNED CIT-DR OPPOSED THE REQ UEST OF THE ASSESSEE. IT WAS SUBMITTED BY HIM THAT COMPA RABLES WERE SUGGESTED BY THE ASSESSEE, AND THEREFORE THE P RIMARY BURDEN TO BRING COMPLETE EVIDENCES ON RECORD WAS TH AT OF THE ASSESSEE, AND SINCE ASSESSEE FAILED IN BRINGING REL EVANT EVIDENCES ON RECORD, HE CANNOT AT THIS STAGE PUT TH E CLOCK BACK AND SUBMIT ALL THOSE EVIDENCES WHICH SHOULD HAVE BE EN SUBMITTED BEFORE THE LOWER AUTHORITIES. IT HAS BEEN FURTHER SUBMITTED BY HIM THAT AUTHENTICITY AND COMPLETENESS OF THESE DOCUMENTS IS MISSING. THE ASSESSEE HAS NOT GIVEN CO MPLETE DOCUMENTS EVEN AT THIS STAGE. THE DOCUMENTS GIVEN B Y THE ASSESSEE ARE HALF COOKED. IT MAY CREATE A STRANGE S ITUATION BEFORE THE LOWER AUTHORITIES IF THIS MATTER IS SENT BACK WITH THE DIRECTION TO CONSIDER THESE INCOMPLETE AND HALF COO KED DOCUMENTS. IT HAS BEEN FURTHER SUBMITTED BY HIM THA T THE ASSESSEE HAS NOT GIVEN APPROPRIATE REASON AS TO WHY THESE EVIDENCES COULD NOT BE SUBMITTED BEFORE THE DRP. 4. WE HAVE GONE THROUGH ORDERS OF THE LOWER AUTHORITI ES AND SUBMISSIONS MADE BY BOTH THE SIDES. IT IS NOTED BY US, ON THE BASIS OF FACTS BROUGHT BEFORE US, THAT THE ASSESSEE HAD FILED AN APPLICATION DATED 17.4.14 BEFORE THE DRP, WHEREIN I T WAS SUBMITTED THAT THE INTERNATIONAL TRANSACTIONS OF TH E ASSESSEE SHOULD BE ANALYSED AND BENCHMARKED TAKING THE FOREI GN ASSOCIATED ENTERPRISE AS AE. THE PERUSAL OF ORDER O F THE DRP SHOWS THAT THAT THE DRP ACCEPTED THIS REQUEST IN PR INCIPLE, BUT REJECTED THE CLAIM OF THE ASSESSEE ON THE GROUN D THAT ROYAL CANIN INDIA P. LTD. 6 COMPLETE EVIDENCES WERE NOT FILED BY THE ASSESSEE. RELEVANT PARA OF THE ORDER OF DRP IS REPRODUCED BELOW: 3.4.3. DURING THE TRANSFER PRICING PROCEEDINGS, HO WEVER, THE ASSESSEE TOOK AN ALTERNATIVE PLEA AND STATED TH AT AE SHOULD BE TAKEN AS A TESTED PARTY. IN SUPPORT OF TH E AE BEING A TESTED PARTY, ALL THAT THE ASSESSEE COULD S UBMIT WAS CERTIFICATE ISSUE BY ITS OVERSEES AES CONFIRMIN G THE OPERATION MARGINS EARNED BY THEM FROM THE TRANSACTI ON OF SALE OF GOODS TO THE ASSESSEE IN INDIA. APPLICATION OF RPM AS PRESENTED IN ITS TP STUDY WAS DEFENDED ONLY ON A WITHOUT PREJUDICE BASIS. 3.4.4. WE HAVE GIVEN A CAREFUL THOUGHT TO THE ENTIR E PROCESS. WHEREAS THERE IS NO BAR TO AE BEING TAKEN AS A TESTED PARTY, IT CAN BE DONE ONLY IF THE ENTIRE COM PARABLE DATA IN THE GEOGRAPHICAL LOCATIONS OF THE AES ARE A VAILABLE. IT IS NOT ENOUGH MERELY TO GIVE CERTIFIED FINANCIAL STATEMENTS OF THE AES. THE ASSESSEE HAS NOT BEEN AB LE TO GIVE ANY RELIABLE DATA INDICATING THAT THERE ARE NO T OTHER CLOSELY COMPARABLE COMPANIES OPERATING IN THOSE GEOGRAPHICAL LOCATIONS. THE VERY FACT THAT SUCH A P LEA WAS TAKEN FOR THE FIRST TIME DURING THE TRANSFER PRICIN G PROCEEDINGS BEFORE THE TPO VIDE THEIR SUBMISSION DA TED 23.08.2013, INDICATES THAT THE ASSESSEE MERELY TRIE D TO TAKE THE AES AS TESTED PARTIES BY MERELY COMPRISING THEM WITH THE OTHER AES AND NOT WITH OTHER COMPARABLE COMPANIES IN THE COMPARABLE GEOGRAPHICAL LOCATIONS. 4.1. THUS, PERUSAL OF THE ORDER OF THE DRP CLEARLY SHOW S THAT CLAIM OF THE ASSESSEE WAS REJECTED FOR WANT OF CERT AIN CRUCIAL EVIDENCES AND COMPLETE INFORMATION PERTAINING TO TH E FOREIGN COMPARABLES. IN OUR CONSIDERED OPINION, THE DOORS O F JUSTICE SHOULD NOT BE CLOSED WITHOUT GIVING ADEQUATE OPPORT UNITY OF HEARING TO THE ASSESSEE. THERE IS NO DENIAL TO THE LEGAL POSITION THAT PRIMARY BURDEN TO PROVE A CLAIM MADE BY THE AS SESSEE IS UPON THE SHOULDERS OF THE ASSESSEE. BUT, EVEN THEN, IT IS EXPECTED FROM THE AUTHORITIES TO AT LEAST CONFRONT THE ASSESSEE ROYAL CANIN INDIA P. LTD. 7 ANY OBSTACLE/DOUBT WHICH MIGHT BE BOTHERING THEM IN THEIR MIND FOR DENYING A CLAIM, WHICH IS OTHERWISE ADMISS IBLE IN LAW, BUT NOT BEING ALLOWED DUE TO UNAVAILABILITY OF COMPLETE INFORMATION OR EVIDENCES. THEREAFTER, IT SHALL BE U PON THE ASSESSEE TO ENSURE THAT DESIRED INFORMATION AND EVI DENCES ARE BROUGHT ON RECORD TO REMOVE ALL THE DOUBTS AS MAY B E ARISING IN ANY GIVEN SITUATION. IN CASE, THE ASSESSEE IS ST ILL NOT ABLE TO COMPLETE THE RECORDS, THEN OF COURSE, AN APPROPRIAT E VIEW MAY BE TAKEN KEEPING IN VIEW MATERIAL AVAILABLE ON RECO RD. 4.2. THUS, IN OUR OPINION THE DRP OUGHT TO HAVE GIVEN A CHANCE TO THE ASSESSEE TO SUBMIT THE EVIDENCES IN S UPPORT OF THE CLAIM MADE BY THE ASSESSEE. BEFORE US, THE ASSE SSEE HAS FILED THREE PETITIONS WITH REGARD TO FILING OF ADDI TIONAL EVIDENCES. IN ITS PETITION DATED 12TH AUGUST 2015, THE ASSESSEE HAS FILED FOLLOWING ADDITIONAL EVIDENCES: I. UPDATED MARGIN OF THE FOREIGN COMPARABLES FOR E MEA REGION FOR FY 2009-10 (SINGLE YEAR) ENCLOSED AS ANN EXURE- 1. THE UPDATED MARGINS AS AVAILABLE FOR FY 2009-10 AT THE TIME OF ASSESSMENT PROCEEDINGS WERE ALSO SUBMITTED TO THE LD. TRANSFER PRICING OFFICER. II. WHITE PAPER ON EUROPEAN COMPARABLE SETS, PRESEN TED IN THE EU JOINT TRANSFER PRICING FORUM HELD IN BRUSSEL S IS ENCLOSED AS ANNEXURE 2. THIS INCLUDES A BRIEF SUMMA RY NOTE WHICH HIGHLIGHTS THE MAIN ASPECTS OF THE WHITE PAPER. 4.3. FURTHER, VIDE PETITION DATED 22ND SEPTEMBER 2015, THE ASSESSEE HAS FILED FOLLOWING EVIDENCES IN SUPPORT O F THE COMPARABLES WITH REGARD TO ITS FOREIGN AE: A) CERTIFICATE FROM THE AES AUTHENTICATING THE FULL COST MARK-UP EARNED BY EACH OF THEM WITH RESPECT TO THE ROYAL CANIN INDIA P. LTD. 8 INTERNATIONAL TRANSACTION ENTERED INTO WITH RC INDI A ATTACHED AS ANNEXURE 1A AND 1B (FILED WITH THE TPO ON 10 SEPTEMBER 2013 AND THEREBY, FORMING A PART OF TH E PAPER BOOK DATED 8 JUNE 2015). B) FOLLOWING INFORMATION OF THE 19 COMPARABLE COMPANIES (EMEA REGION) SELECTED BY THE ASSESSEE FO R BENCHMARKING ITS INTERNATIONAL TRANSACTION OF PURCH ASE OF GOODS: I. COMPANY REPORTS IN GLOBAL FORMAT EXTRACTED FROM AMADEUS DATABASE (ATTACHED AS ANNEXURE 2A - 2S) II. DETAILED BUSINESS DESCRIPTIONS OF THE COMPANIES SHOWING COMPARABILITY TO THE TESTED PARTY (ATTACHED AS ANNEXURE 3) III. DETAILS OF FINANCIAL DATA EXTRACTED FROM AMADEUS (ATTACHED AS ANNEXURE 4) FURTHER, THE APPELLANT HEREBY WISHES TO RE-ATTACH THE UPDATED MARGINS OF COMPARABLES AS PROVIDED IN OUR EARLIER SUBMISSION DATED 12 AUGUST 2015, FOR EASE O F REFERENCE (ATTACHED AS ANNEXURE 5). B) FOLLOWING INFORMATION OF THE 19 COMPARABLES (EME A REGION) SELECTED BY THE APPELLANT FOR BENCHMARKING ITS INTERNATIONAL TRANSACTION OF PURCHASE OF GOODS. I. COMPANY REPORTS IS GLOBAL FORMAT EXTRACTS FROM A MADEUS DATABASE (ATTACHED AS ANNEXURE 2A-2S) II. DETAILED BUSINESS DESCRIPTIONS OF THE COMPANIES SHOWING COMPARABILITY TO THE TESTED PARTY (ATTACHED AS ANNEXURE 3) III. DETAILS OF FINANCIAL DATA EXTRACTED FROM AMADE US (ATTACHED AS ANNEXURE 4) 4.4. A PERUSAL OF THE ABOVE SAID DETAILS OF ADDITIONAL EVIDENCES FILED BY THE ASSESSEE BEFORE US SHOW THAT THE ASSES SEE HAS GIVEN REQUISITE EVIDENCES IN SUPPORT OF COMPARABLES SUGGESTED BY IT. THE ASSESSEE HAS GIVEN UPDATED MARGINS OF TH E COMPARABLES LOCATED IN THE GEOGRAPHICAL LOCATION OF THE FOREIGN AE. IN OUR CONSIDERED OPINION, THE DETAILS AND EVID ENCES SUBMITTED BY THE ASSESSEE CANNOT BE BRUSHED ASIDE U NLESS ROYAL CANIN INDIA P. LTD. 9 FINAL TAX LIABILITY IS DETERMINED UPON IT. WE FIND SUPPORT FROM A JUDGMENT OF HONBLE DELHI HIGH COURT WHICH MAY BE U SEFUL TO DEAL WITH A SITUATION AS IS BEFORE US, IN THE CASE OF CIT VS. TEXT HUNDRED INDIA (P) LTD 351 ITR 57 (DELHI). ITS RELEVANT PARA IS REPRODUCED BELOW: THE AFORESAID CASE LAW CLEARLY LAYS DOWN A NEAT PRI NCIPLE OF LAW THAT DISCRETION LIES WITH THE TRIBUNAL TO AD MIT ADDITIONAL EVIDENCE IN THE INTEREST OF JUSTICE ONCE THE TRIBUNAL AFFIRMS THE OPINION THAT DOING SO WOULD BE NECESSARY FOR PROPER ADJUDICATION OF THE MATTER. TH IS CAN BE DONE EVEN WHEN APPLICATION IS FILED BY ONE OF TH E PARTIES TO THE APPEAL AND IT NEED NOT TO BE A SUO-M OTU ACTION OF THE TRIBUNAL. THE AFORESAID RULE IS MADE ENABLING THE TRIBUNAL TO ADMIT THE ADDITIONAL EVIDENCE IN IT S DISCRETION IF THE TRIBUNAL HOLDS THE VIEW THAT SUCH ADDITIONAL EVIDENCE WOULD BE NECESSARY TO DO SUBSTA NTIAL JUSTICE IN THE MATTER. IT IS WELL-SETTLED THAT THE PROCEDURE IS HANDMAID OF JUSTICE AND JUSTICE SHOULD NOT BE ALLOW ED TO BE CHOKED ONLY BECAUSE OF SOME INADVERTENT ERROR OR OMISSION ON THE PART OF ONE OF THE PARTIES TO LEAD EVIDENCE AT THE APPROPRIATE STAGE. ONCE IT IS FOUND THAT THE PARTY INTENDING TO LEAD EVIDENCE BEFORE THE TRIBUNAL FOR THE FIRST TIME WAS PREVENTED BY SUFFICIENT CAUSE TO LEAD SUCH AN EVIDENCE AND THAT THIS EVIDENCE WOULD HAVE MATERIAL BEARING ON THE ISSUE WHICH NEEDS TO BE DECIDED BY T HE TRIBUNAL AND ENDS OF JUSTICE DEMAND ADMISSION OF SU CH AN EVIDENCE, THE TRIBUNAL CAN PASS AN ORDER TO THAT EF FECT. 4.5. FURTHER, THE APPREHENSION EXPRESSED BY THE LEARNED CIT- DR BEFORE US WAS THAT THE DATA AND EVIDENCES SUBMIT TED BY THE ASSESSEE ARE NOT COMPLETE IN ITSELF AND CANNOT BE RELIED UPON, ON THE FACE OF IT. WE FIND THAT THE APPREHENS ION EXPRESSED BY HIM IS MISPLACED, AND IN ANY CASE WE S HALL TAKE CARE OF THE SAME IN OUR DIRECTIONS. ROYAL CANIN INDIA P. LTD. 10 4.6. THEREFORE, KEEPING IN VIEW ALL THE FACTS AND CIRCU MSTANCES THE CASE, WE FIND IT APPROPRIATE TO SEND THIS ISSUE BACK TO THE FILE OF THE TRANSFER PRICING OFFICER, WHO SHALL TAK E INTO CONSIDERATION ALL THESE EVIDENCES SUBMITTED BY THE ASSESSEE. IT IS CLARIFIED THAT THESE COMPARABLES SUGGESTED BY TH E ASSESSEE RELATE TO THE GEOGRAPHICAL LOCATION OF THE AE, AND THEREFORE IT IS BOUNDEN DUTY OF THE ASSESSEE TO SUBMIT COMPLETE INF ORMATION AND DATA WITH REGARD TO THESE COMPARABLES TO ENABLE THE AO TO MAKE PROPER VERIFICATION OF INFORMATION AND EVIDENC ES AS MAY BE BROUGHT BEFORE HIM. IN CASE, THE TPO REQUIRES SO ME MORE INFORMATION/DATA/EVIDENCES WITH REGARD TO THESE COM PARABLES, THEN THE ASSESSEE SHALL MAKE REQUISITE EFFORTS TO P ROVIDE THE SAME. THE TPO IS ALSO AT LIBERTY TO MAKE FRESH SEAR CH OF APPROPRIATE COMPARABLES TAKING FOREIGN AE AS THE TE STED PARTY, AND CONFRONT THE RESULTS OF THE SAME TO THE ASSESSE E PROVIDING HIM COMPLETE INFORMATION AND DATA ALONG WITH EVIDEN CES. THE ASSESSEE IS FREE TO TAKE ALL LEGAL AND FACTUAL ISSU ES BEFORE THE TPO. THE TPO SHALL PASS HIS ORDER AFTER GIVING ADEQ UATE OPPORTUNITY OF HEARING TO THE ASSESSEE. THE ASSESSE E SHALL ALSO EXTEND REQUISITE COOPERATION TO THE TPO BY PROVIDIN G REQUIRED DETAILS AND DOCUMENTS. THUS, WITH THESE DIRECTIONS, ALL THESE GROUNDS ARE SENT BACK TO THE FILE OF THE TPO FOR FR ESH ADJUDICATION. THUS, THESE GROUNDS MAY BE TREATED AS PARTLY ALLOWED FOR STATISTICAL PURPOSES. 5 . GROUND NO. 6: THIS GROUND WAS NOT PRESSED BY THE ASSESSEE, AND THEREFORE IT IS DISMISSED. ROYAL CANIN INDIA P. LTD. 11 6. IN THE RESULT, APPEAL FILED BY THE ASSESSEE MAY BE TREATED AS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 1 3 TH APRIL, 2016. SD/- (SAKTIJIT DEY) SD/- (ASHWANI TANEJA) ! / JUDICIAL MEMBER '! / ACCOUNTANT MEMBER MUMBAI; DATED 13/04/2016 CTX? P.S/. .. # $%&'&($ / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. !'# / THE RESPONDENT. 3. $# $# % ( ) / THE CIT, MUMBAI. 4. $# $# % / CIT(A)- , MUMBAI 5. ()* # !+ , $# # +- , / DR, ITAT, MUMBAI 6. *. / / GUARD FILE. / BY ORDER, '#( ! //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI