BASELL POLYOLEFINS INDIA P. LTD, POWAI V. ASST CIT 15(1)(2), MUMBAI

ITA 1689/MUM/2017

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 0069 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 9 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-12-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2012-2013
• Appeal Filed On: 10-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHREENIVASARAGHAVA IYENGAR
• Keywords: Transfer pricing; Principle of natural justice; International transaction
• Section: 271(1)(c); 143(3); 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (V I RTUAL COURT) , K BENCH MUMBAI BEFORE SHRI M.BALAGANESH, AM & SHRI RAM LAL NEGI , JM ITA NO. 1689 /MUM/ 20 17 ( ASSESSMENT YEAR : 2012 - 13 ) M/S. BASELL POLYOLEFINS INDIA PRIVATE LTD., 303/305, DEL PHI B WING HIRANANDANI BUSINESS PARK HIRANANDANI GARDENS POWAI, MUMBAI 400706 VS. ASST. COMMISSIONER OF INCOME TAX - 15(1)(2), ROOM NO.483A, AAYAKAR BHAVAN, M.K.ROAD MUMBAI 400 020 PAN/GIR NO. AACCB5368D (APPELLANT ) .. (RESPONDENT ) ASSESSEE BY SHR I MADHUR AGARWAL REVENUE BY SHRI SHREENIVASARAGHAVA IYENGAR DATE OF HEARING 18 / 12 /2020 DATE OF PRONOUNCEMENT 30 / 12 /2020 / O R D E R PER M. BALAGANESH (A.M) : THIS APPEAL IN ITA NO. 1689/MUM/2017 FOR A.Y. 2012 - 13 PREFERRED BY THE ORDER AGAINST THE FINAL ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER DATED 31/01/2017 U/S.143(3) R.W.S.144C(13) OF THE INCOME TAX ACT, HEREINAFTER REFERRED TO AS ACT, PURSUANT TO THE DIRECTIONS OF THE LD. DISPUTE RESOLUTION PANEL (DRP IN SHORT) U/ S.144C(5) OF THE ACT DATED 25/11/2016 FOR THE A.Y.2012 - 13. ITA NO . 1689/MUM/2017 M/S. BASELL POLYOLEFIN INDIA PVT.LTD., 2 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - 1. THE ORDER OF THE LEARNED TRANSFER PRICING OFFICER ('ID. TPO') U/S. 92CA(3) OF THE INCOME - TAX ACT, 1961 ('THE ACT') AND THE CON SEQUENT ASSESSMENT ORDER OF THE LEARNED ASSESSING OFFICER ('LD. AO') U/S. 143(3) READ WITH SECTION 144(13) OF THE ACT, PASSED IN PURSUANCE OF THE DIRECTIONS OF THE HON'BLE DISPUTE RESOLUTION PANEL ('HON'BLE DRP'), IS BAD IN LAW AND VOID AB INITIO AS IT HAS BEEN PASSED IN GROSS VIOLATION OF PRINCIPLE OF NATURAL JUSTICE AND WITHOUT COMPLYING WITH THE MANDATORY CONDITIONS OF SECTION 92CA(3) R.W.S. 92C(3) OF THE ACT FOR THE REASON THAT THE LD. TPO DID NOT SERVE UPON THE APPELLANT ANY WRITTEN SHOW CAUSE NOTICE A S REQUIRED AND MANDATED IN TERMS OF PROVISO TO SECTION 92C(3) R.W.S. 92CA(3) OF THE ACT. 2. THE LD. AO / LD. TPO, IN PURSUANCE OF THE DIRECTIONS OF THE HON'BLE DRP UNDER SECTION 144C(5) OF THE ACT, GROSSLY ERRED IN MAKING AN UPWARD TRANSFER PRICING A DJUSTMENT OF RS. 1,12,40,803/ - IN RESPECT OF IMPUGNED INTERNATIONAL TRANSACTION OF PROVISION OF BUSINESS FACILITATION SERVICES BY THE APPELLANT TO ITS ASSOCIATED ENTERPRISES ('AES') AND IN DOING SO, 2.1 THE LD. AO GROSSLY ERRED IN NOT EXCLUDING 'MAHIND RA INSURANCE BROKERS LTD' FROM THE SET OF THE COMPARABLE UNCONTROLLED COMPANIES SELECTED BY THE APPELLANT FOR BENCHMARKING THE IMPUGNED INTERNATIONAL TRANSACTION OF PROVISION OF BUSINESS FACILITATION SERVICES DESPITE THIS COMPANY HAVING RELATED PARTY TRANS ACTIONS EXCEEDING 15% AND HAS EARNED EXTRA - ORDINARY HIGH PROFIT MARGIN. 2.2 THE LD. AO / LD. TPO GROSSLY ERRED IN REJECTING ALLCHECKDEALS INDIA PRIVATE LIMITED ON THE BASIS OF UNAVAILABILITY OF THE ANNUAL REPORT AND ON ACCOUNT OF LOSS MADE BY THIS COMP ANY IN THE FINANCIAL YEAR 2011 - 12 CORRESPONDING TO A.Y. 2012 - 13. 2.3 THE LD. AO / LD. TPO GROSSLY ERRED IN REJECTING FOLLOWING COMPANIES SELECTED BY THE APPELLANT AS COMPARABLE COMPANIES FOR BENCHMARKING THE IMPUGNED INTERNATIONAL TRANSACTION OF PROVIS ION OF BUSINESS FACILITATION SERVICES: - A. 31 INFOTECH BPO LTD, B. CALIBER POINT BUISNESS SOLUTIONS LTD. C. DATAMATICS FINANCIAL SERVICES LTD. D. FIRSTSOURCE DIALOG SOLUTIONS PVT. LTD. E. ICRA ONLINE LTD. F. JINDAL INTELLICOM LTD. G. MCS LTD. H. PL WORLDWAYS LTD, I . PROFESSIONAL MANAGEMENT CONSULTANTS LTD. ITA NO . 1689/MUM/2017 M/S. BASELL POLYOLEFIN INDIA PVT.LTD., 3 J. SPARSH B P O SERVICES LTD. 2.4 THE LD. AO / LD. TP O GROSSLY ERRED IN ADDING 'KILLICK AGENCIES AND MARKETING LTD AS COMPARABLE COMPANY TREATING IT AS FUNCTIONALLY COMPARABLE TO THE BUSINESS FACILITATION SERVICE SEGMENT OF THE APPELLANT. 2.5 THE LD. AO / LD. TP.O GROSSLY ERRED IN NOT CONSIDERING THE INFRASTRUCTURE COST REIMBURSEMENT RECEIVED BY THE APPELLANT AS 'OPERATING REVENUE' AND THEREBY GROSSLY ERRED IN C OMPUTING OP/OC MARGIN OF THE 'BUSINESS FACILITATION SERVICE' SEGMENT OF THE APPELLANT AT 11.67 PERCENT INSTEAD OF 15.27 PERCENT AS WORKED OUT BY THE APPELLANT. 2.6 THE LD. AO / LD. TPO GROSSLY ERRED IN NOT ALLOWING WORKING CAPITAL ADJUSTMENT WHEREAS S UCH COMPARABILITY ADJUSTMENT IS APPROPRIATE AND NECESSARY WHILE APPLYING THE TRANSACTIONAL NET MARGIN METHOD (TIMMM') TO ELIMINATE MATERIAL DIFFERENCES IN WORKING CAPITAL DEPLOYED BY THE APPELLANT VIS - A - VIS COMPARABLES AND IS ALSO PERMITTED BY LAW. 2.7 THE LD. AO / LD. TPO GROSSLY ERRED IN NOT ALLOWING THE COMPARABILITY ADJUSTMENT FOR MATERIAL DIFFERENCE IN RISK PROFILE AND FUNCTIONAL PROFILE OF THE APPELLANT VIS - A - VIS THE COMPARABLE COMPANIES WHEN SUCH COMPARABILITY ADJUSTMENTS ARE MANDATED BY LAW. THE LD. AO GROSSLY ERRED IN INITIATING PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) OF THE ACT. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND OR DELETE ALL OR ANY OF THE GROUNDS OF APPEAL BEFORE OR DURING THE COURSE OF HEARING. 3. THE ONLY ISSUE TO BE DECIDED IN THIS APPEAL IS WITH REGARD TO TRANSFER PRICING ADJUSTMENT MADE ON ACCOUNT OF BUSINESS FACILITATION SERVICE PROVIDED TO AE BY THE ASSESSEE. 4. WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. THE ASSESSEE, BASELL PO LYOLEFINS (INDIA) PRIVATE LIMITED IS ENGAGED IN THE MULTIPLE BUSINESS ACTIVITIES NAMELY PROVISION OF BUSINESS FACILITATION SER VICES TO ASSOCIATED ENTERPRISES (AE), TRADING IN POLYOLEFINS PRODUCTS AND MANUFACTURING OF POLYOLEFINS PRODUCTS. THE A SSESSEE IS S UBSIDIARY OF LYONDELLBASELL GROUP LYONDELLBASELL GROUP IS ONE OF THE WORLDS LARGEST INDEPENDENT CHEMICAL GROUP WITH MORE THAN 14,000 ITA NO . 1689/MUM/2017 M/S. BASELL POLYOLEFIN INDIA PVT.LTD., 4 EMPLOYEES WORLDWIDE. LYONDELLBASELL IS A GLOBAL MANUFACTURER OF CHEMICALS AND POLYMERS INCLUDING POLYOLEFINS AND ADVANCED POLYOLEFINS, A REFINER OF HEAVY, HIGH SUL PHUR CRUDE OIL AND LEADING DEVELOP AND LICENSOR OF TECHNOLOGIES FOR THE PRODUCTION OF POLYMERS, LYONDELIBASELL HAS VERTICALLY INTEGRATED FACILITIES, BROAD PRODUCT PORTFOLIO, MANUFACTURING FLEXIBILITY, SUPERIOR TECHN OLOGY BASE AND OPERATIONAL EXCELLENCE TO DELIVER EXCEPTIONAL VALUE TO CUSTOMERS ACROSS THE PETROCHEMICAL CHAIN FROM REFINING TO ADVANCED PRODUCT APPLICATIONS. LYONDELLBASELLS PETROCHEMICAL PRODUCTS ARE THE BASIC BUILDING BLOCKS USED TO MANUFACTURE GOODS SUCH AS PERSONAL CARE PRODUCTS, FRESH FOOD PACKAGING, LIGHTWEIGHT PLASTICS, CONSTRUCTION MATERIALS, AUTOMOTIVE COMPONENTS, DURABLE TEXTILES, MEDICAL APPLICATIONS, BIOFUELS AND MANY OTHERS. THE USES OF ITS PRODUCTS ARE PRACTICALLY UNLIMITED. THE ASSESSEE P ROVIDES BUSINESS FACILITATION SERVICES TO CERTAIN BUSINESS ENTITLES OF THE GROUP. BUSINESS FACILITATION SERVICES PROVIDED BY ASSESSEE INCLUDE MARKETING AND PROMOTION OF POLYOLEFIN PRODUCTS, PROVISION OF ADMINISTRATIVE AND CUSTOMER SUPPORT, SUPPLY OF MANPOW ER ETC., FURTHER, IN ADDITION TO BUSINESS FACILITATION SERVICES, THE ASSESSEE IS ALSO INTO TRADING AND MANUFACTURING OF POLYOLEFIN PRODUCTS OPERATIONS. THE DETAILS OF INTERNATIONAL TRANSACTIONS ENTERED INTO WITH AES AS MENTIONED IN FORM 3CEB ENTERED WITH AES ARE AS UNDER: - SR. NO. NATURE OF INTERNATIONAL TRANSACTION AMOUNT (RS.) 1. BUSINESS FACILITATION SERVICES RECEIPT 180,865,010 2. PURCHASE OF FINISHED PRODUCTS FOR RESALE - PAYMENT 66,139,723 3. PURCHASE OF RAW MATERIALS FOR MANUFACTURE OF FINISHED PRODUCTS PAYMENT 43,924,505 4. REIMBURSEMENT OF INFRASTRUCTURE COST 5,827,628 ITA NO . 1689/MUM/2017 M/S. BASELL POLYOLEFIN INDIA PVT.LTD., 5 RECEIPT 5. SUBSCRIPTION OF EQUITY SHARE CAPITAL 50,000,000 4.1. WHAT IS RELEVANT TO BE DISCUSSED HERE IS ONLY WITH REGARD TO BUSINESS FACILITATION SERVICES PROVIDED TO THE AE BY THE ASSESSEE AND WHETHER THE SAME WAS TRANSACTED AT ARMS LENGTH PRICE. IT WOULD BE RELEVANT TO DESCRIBE THE NA TURE OF SERVICE PROVIDED HEREIN: - THE ASSESSEE ACTS AS CAPTIVE BUSINESS FACILITATION SERVICES CENTRE FOR THE FOLLOWING AES WITHIN THE LYON DELLBASELL GROUP (A) BASELL POLYOLEFIN GMBH, GERMANY (B) BASELL ASIA PACIFIC LIMITED, HONG KONG AND (C) BASELL INTERNATIONAL TRADING FZE, UAE AND PROVIDES BUSINESS FACILITATION SERVICES (INCLUDING SUPPLY OF MANPOWER, MARKETING AND PROMOTION OF POLYOLEFIN P RODUCTS, PROVISION OF ADMINISTRATIVE SUPPORT AND CUSTOMER SUPPORT) TO RESPECTIVE AES. 4. 2 . THE ASSESSEE HAD SELECTED ITSELF AS THE TESTED PARTY FOR BENCHMARKING THE INTERNATIONAL TRANSACTION OF PROVISION OF BUSINESS FACILITATION SERVICES. THE ASSESSEE IN ITS TRANSFER PRICING STUDY REPORT APPLIED TRANSACTION NET MARGIN METHOD (TNMM) AS THE MOST APPROPRIATE METHOD (MAM) FOR BENCHMARKING THE BUSINESS FACILITATION SERVICES TRANSACTION WITH ITS AE. THE ASSESSEE HAD ADOPTED PROFIT LEVEL INDICATOR (PLI) OF OPERAT ING PROFIT / OPERATING COST (OP/OC), SINCE THE REVENUE OF THE ASSESSEE WAS DIRECTLY AFFECTED BY THE TRANSFER PRICES IT RECEIVES FROM AES, NET OPERATING PROFIT ON TOTAL COST WAS SELECTED AS PLI. 4. 3 . THE PLI OF SERVICE SEGMENT OF ASSESSEE WAS COMPUTED AS UNDER: - ITA NO . 1689/MUM/2017 M/S. BASELL POLYOLEFIN INDIA PVT.LTD., 6 PARTICULARS RS. OPERATING INCOME REVENUE FROM OPERATIONS 180,865,010 OTHER OPERATING INCOME INFRASTRUCTURE COST REIMBURSEMENT 5,827,628 TOTAL OPERATING INCOME (A) 186,692,639 OPERATING EXPENSES EMPLOYEE BENEFITS EXPENSES 97,467,277 GEN ERAL AND ADMINISTRATIVE EXPENSES 64,498,779 TOTAL OPERATING COST (B) 161,966,056 OPERATING PROFIT [C=(A) - (B)] 24,726,582 RETURN ON TOTAL COST 15.27% 4. 4 . THE LD. TPO OBSERVED THAT THE ASSESSEE WHILE CALCULATING OP/OC MARGIN HAD INCLUDED THE REIMBURSEM ENT OF INFRASTRUCTURE COST WHICH WAS TOWARDS COST OF FIXED ASSETS AND HENCE, REQUIRED TO BE NETTED OFF FROM THE FIXED ASSETS AND CANNOT BE CONSIDERED AS OPERATING REVENUE. HE ALSO OBSERVED THAT SIMILAR INCLUSION CARRIED OUT BY THE LD. TPO FOR THE A.Y.2011 - 12 WAS UPHELD BY THE LD. DRP. ACCORDINGLY, THE REVISED OP/OC MARGIN OF THE BUSINESS FACILITATION SERVICE SEGMENT WAS WORKED OUT AT 11.67% AS UNDER: - PARTICULARS AMOUNT (RS.) OPERATING INCOME (W/O. RE - IMBURSEMENT OF INFRA COST)[A] 18,08,65,010 TOTAL OPER ATING COSTS (B) 16,19,66,056 OPERATING PROFIT (C - (A) - (B) 1,88,98,954 RETURN ON TOTAL COST (C)/(B) 11.67% ITA NO . 1689/MUM/2017 M/S. BASELL POLYOLEFIN INDIA PVT.LTD., 7 4. 5 . THE LD. TPO TOOK THE FINAL COMPARABLE COMPANIES AS UNDER AND ARRIVED AT THE ARITHMETIC MEAN MARGIN OF 18.6 1 % WHICH WAS COMPARED WITH ASSESSEE S MARGIN OF 11.67%. SR. NO. NAME OF THE COMPANY PLI AS PER ASSESSEE(%) 1. SPECTRUM BUSINESS SOLUTIONS LTD., 7.57 2. GENIUS INDIA TPA LTD., 23.78 3. KILLICK AGENCIES AND MARKETING LTD., 9.03 4. IIT INSURANCE BROKING & RISK MGMT. PVT. LTD., 26.78 5. M AHINDRA INSURANCE BROKERS LTD., 61.91 6. TATA MOTORS INSURANCE BROKING & ADVISORY SERVICES LTD., 6.96 7. ADITYA BIRLA INSURANCE BROKERS LTD., 32.57 8. ALMONDZ INSURANCE BROKERS PVT. LTD., 8.45 9. BAJAJ CAPITAL INSURANCE BROKING LTD., 4.90 10. INDIA IN FOLINE INSURANCE BROKERS LTD., 4.13 MEAN MARGIN 18.61 4.6. THE ARMS LENGTH PRICE ADJUSTMENT IN RESPECT OF BUSINESS FACILITATION SERVICES WAS MADE TO THE EXTENT OF RS.1,12,40,803/ - BY THE LD. TPO BY WORKING OUT IN THE FOLLOWING MANNER: - PARTICULARS A MOUNT (RS.) AMOUNT (RS) (105%) OPERATING INCOME (W/O. RE - IMBURSEMENT OF INFRA COST)(A) 18,08,65,010 18,99,08,261 ITA NO . 1689/MUM/2017 M/S. BASELL POLYOLEFIN INDIA PVT.LTD., 8 OPERATING COSTS (B) 16,19,66,056 16,19,66,056 OPERATING PROFIT (C) 1,88,98,954 2,79,42,205 OP/OC (ACTUAL) 11.67% 17.25% ARMS LENGTH OP/OC 18.61% 18.61% ARMS LENGTH OPERATING PROFIT (D)=B X 18.61% 3,01,39,757 3,01,39,757 ARMS LENGTH OPERATING INCOME (E)=D+B 19,21,05,813 19,21,05,813 ADJUSTMENT = E - A 1,12,40,803 21,97,552 4.7. THIS ACTION OF THE LD. TPO WAS UPHELD BY THE LD. DRP AND A CCORDINGLY, THE LD. AO PASSED THE FINAL ASSESSMENT ORDER U/S.143(3) R.W.S.144C(13) OF THE ACT ON 31/01/2017. 4.8. WE FIND ORIGINALLY THAT ASSESSEE IN ITS TP STUDY REPORT HAD SELECTED 19 COMPARABLES WITH AVERAGE PLI OF 6.10% AND THE MARGIN OF ASSESSEES BU SINESS FACILITATION SERVICE COMMISSION WAS 15.27% BY CONSIDERING REIMBURSEMENT OF INFRASTRUCTURE COST AS OPERATING REVENUE AT 15.27% AND SINCE THE ASSESSEES MARGIN WAS HIGHER THAN THE ARITHMETIC MEAN MARGIN OF THE 19 COMPARABLE COMPANIES, THE ASSESSEE HAD SUBMITTED THAT ITS PRICE WAS AT ARMS LENGTH. MOREOVER, IN THE TPO STUDY REPORT, THE ASSESSEE FIRMLY ASSERTED THAT IT IS A CAPTIVE BUSINESS FACILITATION SERVICE CENTER FOR ITS AES AND IS REMUNERATED ON COST PLUS PROFIT MARK UP BASIS INCLUDING REIMBURSEMEN T ON ALL FIXED COSTS. HENCE, IT WAS SUBMITTED THAT ASSESSEE WAS OPERATING IN A RISK MITIGATING ENVIRONMENT. THE COMPARABLE SELECTED BY IT ARE FULL FLEDGED ENTREPRENEUR SERVICE PROVIDER PLUS OPERATING IN OPEN MARKET AND ALSO UNDERTAKING SELLING AND MARKETIN G ACTIVITIES. WE FIND THAT THE ASSESSEE HAD PLEADED BEFORE THE LD. DRP THAT THERE ARE ITA NO . 1689/MUM/2017 M/S. BASELL POLYOLEFIN INDIA PVT.LTD., 9 MATERIAL DIFFERENCES IN THE RISK AND FUNCTIONAL PROFILE OF ASSESSEES BUSINESS FACILITATION SERVICE SEGMENT VIS - - VIS THE COMPARABLES SELECTED BY THE ASSESSEE ITSELF, WHI CH NECESSITATES COMPARABILITY ADJUSTMENTS FAVOURABLE TO THE ASSESSEE. 4.9. WE ALSO FIND THAT THE ASSESSEE IN PARA 5.7 OF THE TP STUDY REPORT HAD RESERVED ITS RIGHT TO APPLY THE FOLLOWING COMPARABILITY ADJUSTMENTS I.E. A) FOR DIFFERENTIAL RISK PROFILE B) F OR FUNCTIONAL PROFILE C) WORKING CAPITAL ADJUSTMENT. WE FIND THAT THE LD AR SUBMITTED BEFORE US THAT IF ICRA ONINE LTD ALONE IS INCLUDED IN THE FINAL LIST OF COMPARABLES CHOSEN BY THE LD. TPO, THE ASSESSEE WOULD BE WELL WITHIN +/ - 5% TOLERANCE RANGE PERMIT TED IN THE STATUTE AND HENCE NO ADJUSTMENT WOULD BE REQUIRED TO BE MADE TO INTERNATIONAL TRANSACTION OF THE ASSESSEE. HE FURTHER SUBMITTED THAT ONCE THIS IS DONE, THE ADJUDICATION OF OTHER GROUNDS ON COMPARABLES FOR BOTH INCLUSION AND EXCLUSION WOULD BECO ME ACADEMIC. WE FIND THAT THE PLI OF ICRA ONLINE LTD., WAS CONSIDERED AT 1.87% AS PER PAGE 4 OF THE ORDER OF THE LD. TPO. WE FIND THAT THIS TRIBUNAL IN ASSESSEES OWN CASE FOR A.Y.2011 - 12 IN ITA NO.2659/MUM/2016 DATED 19/12/2018 HAD DIRECTED THE LD. TPO TO INCLUDE ICRA ONLINE LTD., IN THE FINAL LIST OF COMPARABLES , AMONG OTHERS. THE RELEVANT OPERATIVE PORTION IS ENCLOSED IN PARA 14 OF THE ORDER WHICH IS REPRODUCED HEREUNDER: - 14. WE ARE OF THE CONSIDERED VIEW THAT IN THE BACKDROP OF THE AFORESAID OBSERVA TIONS AND THE SETTLED POSITION OF LAW, THE WHIMSICAL REJECTION OF THE AFOREMENTIONED COMPANIES VIZ (I) CYBER MEDIA RESEARCH LTD; AND (II) ICRA ONLINE LTD. BY THE TPO FOR BENCHMARKING THE ALP OF THE INTERNATIONAL TRANSACTIONS OF THE ASSESSEE WITH ITS AES DU RING THE YEAR UNDER CONSIDERATION NOT BEING JUSTIFIED, THUS CANNOT BE SUSTAINED AND IS LIABLE TO BE VACATED. IN TERMS OF OUR AFORESAID OBSERVATIONS WE DIRECT THE AO/TPO TO RE - WORKOUT THE ALP IN THE HANDS OF THE ASSESSEE AFTER INCLUDING THE AFOREMENTIONED C OMPANIES I.E. (I) CYBER MEDIA RESEARCH LTD; AND (II) ICRA ONLINE LTD. AS COMPARABLES IN THE FINAL LIST OF COMPARABLES. IN CASE, THE CLAIM OF THE ASSESSEE THAT AFTER INCLUDING THE AFOREMENTIONED COMPANIES ITS ALP WOULD FALL WITHIN THE RANGE OF IS FOUND TO B E ITA NO . 1689/MUM/2017 M/S. BASELL POLYOLEFIN INDIA PVT.LTD., 10 IN ORDER THEN NO ADJUSTMENT TO THE ALP WOULD BE CALLED FOR IN THE HANDS OF THE ASSESSEE. 4.10. RESPECTFULLY FOLLOWING THE AFORESAID JUDICIAL PRECEDENTS IN ASSESSEES OWN CASE AND CONSIDERING THE ARGUMENT OF THE ASSESSEE THAT IT WOULD BE WELL WITHIN THE +/ - 5% TOLERANCE RANGE AFTER INCLUSION OF ICRA ONLINE LTD., IN THE FINAL LIST OF COMPARABLES, WE DIRECT THE LD. TPO TO INCLUDE THE SAME IN THE FINAL LIST OF COMPARABLES AND IN VIEW OF THIS DECISION, THE ADJUDICATION OF OTHER GROUNDS WOULD BECOME ACADEMIC A ND INFRUCTUOUS. HENCE, NO OPINION IS GIVEN HEREUNDER IN RESPECT OF OTHER GROUNDS RAISED BY THE ASSESSEE AND THEY ARE LEFT OPEN. ACCORDINGLY, THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRON OUNCED ON 30 / 12 /2020 BY WAY OF PROPER MENTIONING IN THE NOTICE BOARD. SD/ - ( RAM LAL NEGI ) SD/ - (M.BALAGANESH) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED 30 / 12 / 2020 KARUNA , SR.PS ITA NO . 1689/MUM/2017 M/S. BASELL POLYOLEFIN INDIA PVT.LTD., 11 COPY OF THE ORDER FORWARDED TO : BY ORDER, ( ASSTT. REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//