ASST CIT 9(2)(1), MUMBAI V. BILLION WELTH MINERALS P.LTD, MUMBAI

ITA 1818/MUM/2015

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 0750 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 9 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-01-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: K
• Next Hearing Date: 20-10-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 27-03-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V JENARDHANAN
• Keywords: Transfer pricing; International transaction; Fair market value
• Section: 92

Judgement Text

, INCOME-TAX APPELLATE TR IBUNAL -KBENCH MUMBAI , , BEFORE S/SH.RAJENDRA,ACCOUNTANT MEMBER AND AMARJIT SINGH,JUDICIAL MEMBER ./I.T.A./1818/MUM/2015, / ASSESSMENT YEAR: 2010-11 ACIT-9(2)(1) ROOM NO.204, 2ND FLOOR, AAYAKAR BHAVAN, M.K. ROAD MUMBAI-400 058. VS. M/S. BILLION WEALTH MINERALS PVT. LTD. LEVEL 3, NEO VIKRAM, NEW LINK ROAD, ANDHERI WEST,MUMBAI-400 058 PAN:AADCB 3991 R ( /APPELLANT ) ( / RESPONDENT) / REVENUE BY: SHRI V. JENARDHANAN- DR /ASSESSEE BY: NONE / DATE OF HEARING: 01/11/2017 / DATE OF PRONOUNCEMENT: 19.01.2018 PER RAJENDRA, AM - CHALLENGING THE DIRECTIONS OF THE DISPUTE RESOLUTIO N PANEL (DRP)-I, MUMBAI, DATED 16/12/ 2014, THE ASSESSING OFFICER (AO) HAS FILED THE PRESENT AP PEAL. ASSESSEE-COMPANY IS ENGAGED IN THE BUSINESS OF TRADING OF IRON ORE I.E. PURCHASING OF IRON ORE FROM DOMESTIC SUPPLIERS AND EXPORTING THE SAME TO ITS ASSOCIATED ENTERPRISES(AE.S)AND TO NON-AE.S.IT FILED ITS RETURN OF INCOME ON 14/10/2011, DECLARING TOTAL INCOME AT RS. 1.40 CROR E. THE MATTER WAS FIRST FIXED FOR HEARING ON 08/09/201 5.AFTER THAT IT WAS RE-FIXED ON THREE MORE OCCASIONS,BUT NONE APPEARED ON BEHALF OF THE ASSESS EE.THEREFORE,WE ARE DECIDING THE APPEAL CONSIDERING THE MATERIAL AVAILABLE ON RECORD. 2. DURING THE ASSESSMENT PROCEEDINGS,THE AO FOUND THAT ASSESSEE HAS ENTERED INTO INTERNATIONAL TRANSACTIONS(IT.S) WITH ITS AE. HE MADE A REFERENCE TO THE TRANSFER PRICING OFFICER (TPO) TO DETERMINE THE ARMS LENGTH PRICE(ALP)OF SUCH TRANSA CTIONS.AFTER RECEIVING THE ORDER OF THE TPO, HE PROPOSED AN UPWARD ADJUSTMENT OF RS.9.84 CRORES TO THE INCOME OF THE ASSESSEE. AGGRIEVED BY THE ORDER OF THE AO/TPO,THE ASSESSEE FILED OBJECTIO NS BEFORE THE DRP.CONSIDERING THE AVAILABLE MATERIAL,THE DRP DIRECTED THE AO TO FOLLOW ITS INST RUCTIONS TO WORK OUT THE TP ADJUSTMENTS . ACCORDINLGY,HE REWORKED THE ADJUSTMENT TO RS.3.89 C RORES. 3. EFFECTIVE GROUND OF APPEAL IS ABOUT ADOPTING THE MO ST APPROPRIATE METHOD TO BENCHMARK THE IT.S.DURING THE TRANSFER PRICING (TP) PROCEEDINGS,T HE TPO FOUND THAT THE ASSESSEE HAD ADOPTED 1818/M/15 M/S. BILLION WEALTH MINERALS PVT.LTD. 2 TNMM FOR DETERMINING THE ALP OF THE IT.S, THAT 14 C OMPARABLES WERE IDENTIFIED FOR THAT PURPOSE,THAT THE ARITHMETIC MEAN MARGIN OF COMPARAB LES WAS COMPUTED AT 1.56%, THAT THE OPERATING MARGIN ON COST WAS CLAIMED AT 3.47%, THAT THE IT.S WERE CLAIMED TO BE AT ARMS LENGTH, THAT IT HAD ENTERED INTO SEVEN TRANSACTIONS OF SALE OF IRON ORE,THAT OUT OF THE SEVEN, FOUR TRANSACT- IONS WERE WITH THE AE.S,THAT THREE TRANSACTIONS WER E WITH NON-AE.S,THAT ALL THE TRANSACTIONS WERE UNDERTAKEN ON FOB BASIS, THAT A FEW TRANSACTIONS WI TH AE.S WERE BELOW THE RATE ENTERED INTO WITH THE NON-AE.S.HE DIRECTED THE ASSESSEE TO EXPLAIN TH E REASONS FOR THE DISPARITY IN PRICING OF IRON ORE SOLD TO THE AE.S AND THE NON-AE.S.HE ALSO DIREC TED THE ASSESSEE TO UPDATE THE OPERATING MARGINS OF THE COMPARABLE COMPANIES. 3.1. AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE,T HE TPO OBSERVED THAT IRON ORE WAS COMMONLY EXPORTED FROM ALL THE PORTS OF INDIA. HE D IRECTED THE ASSESSEE TO BENCHMARK THE TRANSACTION APPLYING EXTERNAL CUP METHOD AND TO COL LECT THE DATA REGARDING EXPORT OF IRON ORE FROM AUTHENTIC SOURCES LIKE TIPS. AS THE ASSESSEE D ID NOT FILE THE DETAILS REQUIRED,THE TPO COLLECTED THE DATA AS PER THE TIPS SOFTWARE. HE FUR THER ISSUED A NOTICE TO THE ASSESSEE TO EXPLAIN AS TO WHY ADJUSTMENT SHOULD NOT BE MADE BASED ON TH E TIPS DATA.AFTER CONSIDERING THE REPLY OF THE ASSESSEE DATED 29/ 01/2014 HE MADE FOLLOWING AD JUSTMENTS:- DT. OF SHIPME NT QUANTITY IN DMT AMOUNT IN INR(A) ASSESSEE RATE RATE OF COMPARABLES ALP SALES (B) ADJUSTMENT (B- A) 4-AUG- 09 59343.72 143,861,748.00 2424.03 2877.03 170,733,662 .75 26,871,914.75 15- DEC.- 09 33656.40 105,184,385.00 2980.34 2980.34 100,307,515 .18 NIL 31- MAR-10 128703.77 427,809,896.00 3323.99 3879.78 499,342,31 2.77 71,532,416.77 TOTAL 98,404,331.52 4.2. THE AO,ON RECEIPT OF ORDER OF THE TPO, ISSUED A DRA FT ORDER, THAT WAS CHALLENGED BEFORE THE DRP,AS STATED ABOVE.IT MADE DETAILED SUBMISSIONS AN D RELIED UPON CERTAIN CASE LAWS.AFTER DELIBERATING UPON THE ORDERS OF THE TPO/AO AND THE SUBMISSIONS OF ASSESSEE,THE DRP HELD THAT THE QUALITY OF IRON ORE, AS PER THE TIPS DATABASE, WAS CLASSIFIED INTO THREE CATEGORIES, THAT THE EXACT IRON CONTENT WAS NOT MENTIONED.CONSIDERING TH E VARIOUS FACTORS,THE DRP HELD THAT TNMM ADOPTED BY THE ASSESSEE WAS NOT THE CORRECT METHOD TO BENCHMARK THE AE TRANSACTIONS, THAT IT WAS 1818/M/15 M/S. BILLION WEALTH MINERALS PVT.LTD. 3 THE METHOD OF LAST RESORT AND REQUIRED STRICT FUNCT IONAL SIMILARITY, THAT THE DATA USED BY THE ASSESSEE WERE NOT FOR THE TRADING EXPORT OF IRON OR E OR AT LEAST FOR TRADING EXPORTS OF MINERALS FOR FUNCTION SIMILARLY AND COMPARABILITY, THAT THE TPO HAD RIGHTLY REJECTED THE TNMM, THAT THE PRINCIPLES OF LAW ON CUP METHOD WERE WELL SETTLED, THAT THE COMPARABLES HAD TO BE PERFECT OF REALISTIC, THAT WHILE USING IT, REASONABLE AND ACCU RATE ADJUSTMENTS SHOULD BE ALLOWED,THAT QUALITY OF IRON ORE HAD A SUBSTANTIAL BEARING ON ITS PRICE, THAT IN THE ABSENCE OF DETAILS REGARDING ACTUAL IRON CONTENT IT WOULD BE UNFAIR TO COMPARE SUCH PRI CES WITH THE PRICE AT WHICH THE IRON ORE HAD BEEN EXPORTED BY THE ASSESSEE TO ITS AE, THAT THE A SSESSEE HAD POINTED OUT VARIOUS INSTANCES IN THE TIPS DATA WHEREIN UNIT PRICES OF A SPECIFIC CATEGOR Y OF IRON ORE VARIED WIDELY, THAT AMONG THE ASSESSEES OWN TRANSACTIONS EXPORT PRICES FOR DIFFER ENT CATEGORIES VARIED WIDELY, THAT THE ASSESSEE HAD ONLY EXPORTED IRON ORE FINES, THAT FOR THE PURP OSE OF COMPARABILITY ANALYSIS THE TPO HAD CONSIDERED IRON ORE FINES AND IRON ORE LUMPS, THAT THE PRICE OF IRON ORE LUMPS WAS HIGHER THAN PRICE OF IRON OR IRON ORE FINES, THAT THAT THE ASSE SSEE HAD EXPORTED IRON ORE TO ITS AES ON FOB BASIS, THAT THE PRICE FOR EXPORT BY THIRD PARTIES W AS NOT MENTIONED IN THE DATA PROVIDED BY THE TPO, THAT THE VARIATION IN PRICE AND TERMS WOULD HA VE A SIGNIFICANT IMPACT ON THE PRICE, THAT THE PRICE OF IRON ORE WOULD FLUCTUATE BY QUANTUM OF SAL ES ALSO, THAT THE PRICE FOR BULK PURCHASE/SALES WERE USUALLY NEGOTIATED/BARGAIN, THAT SALES IN SMAL LER QUANTITIES COULD NOT BE COMPARED WITH BULK SALES, THAT THE SOURCE AND DESTINATION PORT WERE IM PORTANT FACTORS IN DETERMINING THE PRICE, THAT IT WAS A CRITICAL DECIDING FACTOR FOR THE PURPOSE OF C OMPARABILITY ANALYSIS,THAT THE TPO HAD CONSIDER -ED THE TRANSACTION IN RELATION TO EXPORT FROM VISA KHAPATNAM PORT, THAT THE ASSESSEE HAD MADE THE EXPORT FROM KRISHNAPATNAM PORT OR FROM GOA,THAT IN ABSENCE OF APPROPRIATE MECHANISM TO ADJUST FOR ABOUT DIFFERENCES IT WOULD BE INAPPROPRIATE TO COMPARE THE PRICES AT WHICH THE IRON ORE EXPORTED BY THE ASSESSEE TO ITS AES VIS A VIS PRIC ES CHARGED FROM THIRD-PARTIES,THAT THE TIPS DATA USED BY THE TPO WAS NOT COMPLETE AND RELIABLE, THAT IT DID NOT CAPTURE ALL EXPORT TRANSACTIONS,THAT THE ASSESSEES OWN TRANSACTION UNDERTAKEN IN THE MO NTH OF FEBRUARY WAS NOT CAPTURED IN THE DATA,THAT THE ASSESSEE HAD EXPORTED IRON ORE HAVING IRON CONTENT 63.01%, 61.38%, 60.16% AND 50.60% IN THE MONTHS OF AUGUST 2009, DECEMBER 2009, MARCH 2009 AND MARCH 2009 RESPECTIVE -LY,THAT THREE EXPORT CONSIGNMENTS HAD CONTENT LESS THAN 62%, THAT IN ONE CASE THE IRON CONTENT WAS MORE THAN 62%, THAT OUT OF THE THREE CONSIGNMEN TS HAVING IRON CONTENT LESS THAN 62% THE IRON CONTENT WAS NEAR 62% IN TWO CASES AND IN THE T HIRD CASE IT WAS ABOUT 50%. 1818/M/15 M/S. BILLION WEALTH MINERALS PVT.LTD. 4 4.3. THE DRP FURTHER OBSERVED THAT RESALE PRICE METHOD(R PM)WOULD BE APPROPRIATE TO DETERMINE AS TO WHETHER THE AE TRANSACTIONS WERE AT ALP,THAT THE MEAN OF GP REALISED IN THE NON-AE TRANSACTIONS WOULD BE APPROPRIATE BENCHMARK TO EXAM INE ARMS LENGTH PRICE OF EACH OF THE AE- TRANSACTIONS,THAT GP REALISED ON NON-AE EXPORTS WOU LD BE AN APPROPRIATE INTERNAL CUP FOR THE AE EXPORTS.IT DIRECTED THE ASSESSEE TO FURNISH THE DET AILS OF ALL AE AND NON-AE TRANSACTIONS AS TO THE PURCHASE PRICE AND SALE PRICE OF EACH TRANSACTION A ND THE GP EARNED IN SUCH TRANSACTIONS.BASED ON THE PURCHASE AND SALE DETAILS,THE DRP COMPUTED T HE TRANSACTION WISE GP AS UNDER:- SN. NAME OF CONSIGNEE WHETHER AE/NON AE QUANTITY MT SALE RATE/MT PURCHASE RATE/MT %GP 1. GENERAL NICE RESOURCE (HONG KONG) LTD. HK AE 61643 2,424.20 1,793 35.20% 2. SHANXI DAJIN INTERNATIONAL (GROUP) CO. LTD. NON AE 49000 3,283.11 2,001 64.07% 3. GNR MACO COMMERCIAL OFFSHRE CO. LTD. AE 36000 3,125.22 2,500 25.01% 4. ZENITH MACAO COMMERCIAL OFFSHORE CO. LTD. NON AE 36100 2,807.74 2,400 16.99% 5. SHANXI DAJIN INTERNATIONAL (GROUP) CO. LTD. NON AE 72123 3,420.92 3,021 13.24% 6. GENERAL NICE RESOURCE (HONG KONG) LTD. HK AE 62550 4,971.67 4,160 19.51% 7. GENERAL NICE RESOURCE (HONG KONG) LTD. HK AE 75538 1,877.82 1,450 29.50% THE DRP FURTHER OBSERVED THAT GP IN NON-AE-TRANSACT ION VARIED FROM 64.07% TO 13.24% HAVING MEAN OF 31.40%, THAT GP IN AE-TRANSACTIONS RANGED B ETWEEN 35.20% TO 19.51%,THAT THE MEAN GP-RATE,REALISED ON EXPORTS TO NON-AE.S,WOULD BE TH E APPROPRIATE WAY TO BENCHMARK THE AE- TRANSACTION AND TO DETERMINE THE RESALE PRICE OF CO NSIGNMENTS TO THE AE.S,THAT ALL THE TRANSACTIONS WERE OF EXPORT OF IRON ORE HAVING DIFFERENT IRON CO NTENTS, THAT EXPORTS WERE MADE FROM DIFFERENT PORTS,THAT THE MEAN OF GP-RATES REALISED FROM EACH OF THE NON-AE-TRANSACTION WOULD BE APPROPRIATE TO DETERMINE THE ARMS LENGTH GROSS MAR GIN FROM EACH AE-TRANSACTION. ACCORDINGLY,THE DRP DIRECTED THE TPO/AO TO VERIFY T HE PURCHASE AND SALE PRICE AND PURCHASE AND SALE RATES OF EACH CONSIGNMENT OF IRON ORE TO C OMPUTE THE GP-RATE IN EACH TRANSACTION. IT FURTHER DIRECTED TO DETERMINE THE MEAN OF GP-RATES REALISED FROM EACH OF THE NON- AE- 1818/M/15 M/S. BILLION WEALTH MINERALS PVT.LTD. 5 TRANSACTIONS AND TO ASCERTAIN AS TO WHETHER THE ASS ESSEE HAD REALISED AT LEAST SAID MEAN GP-RATE IN EACH OF THE AE-TRANSACTIONS SEPARATELY. 5. BEFORE US,THE DEPARTMENTAL REPRESENTATIVE(DR)SUPPOR TED THE ORDER OF THE TPO AND STATED THAT RPM COULD BE USED ONLY FOR IMPORTED GOODS,THAT TIPS DATA WAS A REASONABLE SOURCE FOR DETERMINING THE ALP.HE RELIED UPON THE CASE OF TILD A RICELAND PVT.LTD(ITA/NO/6279/ DEL/ 2012;DATED 21/2/2014 A.Y.08-09);M/S.LIVINGSTONES (I TA NO/7303 & 7460/MUM/2011 DATED 23/ 10/13,A.Y.07-08);AND M/S.SUPREHOUSE LEATHER LIMITED (ITA NO/127/LKW/2012 DATED 11/6/15 A.Y.07-08). AS STATED EARLIER,NONE APPEARED ON BEHALF OF THE AS SESSEE. 6 .WE HAVE PERUSED THE MATERIAL ON RECORD AND HEARD T HE SUBMISSIONS OF THE DR. WE FIND THAT THE ASSESSEE HAD ADOPTED TNMM AS THE MOST APPROPRIATE M ETHOD TO DETERMINE THE ARMS LENGTH NATURE OF ITS IT.S,THAT IT HAD SUBMITTED THE TRANSA CTION WISE DETAILS OF EXPORT OF IRON ORE,THAT THE TPO REJECTED THE TP ANALYSIS MADE BY IT, THAT HE AD OPTED CUP METHOD FOR BENCHMARKING THE IT.S USING THE TIPS DATABASE,THAT THE DRP HELD THAT THE CUP METHOD COULD NOT BE APPLIED IN ASSESSEES CASE,THAT IT APPLIED RPM AS APPROPRIATE METHOD TO DETERMINE THE ALP OF THE TRANSACTIONS,THAT IT DIRECTED THE TPO/AO TO VERIFY THE PURCHASE AND SALE PRICE OF EACH CONSIGNMENT AND TO COMPUTE THE GP RATE OF EACH TRAN SACTION. 6.1. IN OUR OPINION,THE METHOD ADOPTED BY THE TPO WAS FA ULTY FROM THE VERY BEGINNING. THE TIPS DATA CONTAINED PRICE OF IRON ORE EXPORTED FROM VISH AKHPATANM PORT FOR TWO CATEGORIES- I.E. HAVING IRON CONTENT 62% AND HAVING IRON CONTENT 62% OR LESS.THE ASSESSEE HAD EXPORTED IRON ORES TO ITS AE.S HAVING FE CONTENTS OF 63.01%,63.38 %,60.16% AND 50.60%.EXPORT DETAILS CLEARLY SHOW THAT IN THREE CONSIGNMENTS FE CONTENT WAS LESS THAN 62% AND ONLY IN ON CONSIGNMENT FE WAS MORE THAN 62%.EVEN IN THREE CONSIGNMENTS HAVING FE CONTENT LESS THAN 62% IN ONE CASE IRON ORE CONTENT IS 50.60%.THERE IS NO NEED TO QUOT E ANY AUTHORITY TO HOLD THAT MARKET VALUE OF THE ORE HAVING 50.60% FE WOULD BE LESS THAN THE ORE HAVING 62% FE.BESIDES,PRICE OF IRON ORE,LIKE ANY OTHER EXPORTED COMMODITY,IS HIGHLY SEN SITIVE AND HAS WIDE FLUCTUATION DEPENDING UPON DEMAND AND SUPPLY.CONSIDERING THESE PECULIAR F ACTS,WE ARE OF THE OPINION THAT THE DRP HAD RIGHTLY HELD THAT TIPS DATA WAS NOT A RELIABLE TOOL TO DETERMINE THE ALP OF THE IT.S OF THE ASSESSEE. 1818/M/15 M/S. BILLION WEALTH MINERALS PVT.LTD. 6 6.2. IF WE ANALYSE THE DIRECTIONS OF THE DRP IT DEPTH,IT BECOMES CLEAR THAT THOUGH IT HAD USED TERM RPM TO DECIDE THE FAIR MARKET VALUE OF THE TRANSACT IONS,BUT ACTUALLY IT HAD APPROVED THE METHOD ADOPTED BY THE TPO TO A CERTAIN EXTENT. USING THE T ERM RPM AT ONE PLACE IN ITSELF IS NOT SUCH A GRAVE MISTAKE WHICH WOULD MAKE THE ORDER UNTENABLE. WHAT HAS TO BE SEEN IS THE DETAILED DIRECTIONS GIVEN BY IT.THE TPO HAD USED AN EXTERNAL SOURCE I.E.TIPS DATA FOR DETERMINING THE ALP OF THE IT.S,WHEREAS THE DRP DIRECTED HIM AND TH E AO TO CONSIDER THE MEAN GP-RATE REALISED IN THE EXPORTS TO NON-AE.S TO BENCHMARK THE AE-TRAN SACTIONS.IT CLEARLY HELD THAT MEAN OF GP- RATES REALISED FROM EACH OF THE NON-AE-TRANSACTIONS WOULD BE APPROPRIATE TO DETERMINE THE ARMS LENGTH GROSS MARGIN FROM EACH AE-TRANSACTION . IN OUR OPINION, METHODOLOGY ADOPTED BY THE DRP WAS MOST APPROPRIATE WAY TO DETERMINE THE A LP. 6.3. THE BASIC PURPOSE OF THE TP PROVISIONS IS TO ENSURE THAT TRANSACTIONS ENTERED IN TO BY AN ASSESSEE WITH ITS AE.S SHOULD BE AT PAR WITH THE TR ANSACTIONS OF NON-AE.S.TO CURB THE MALPRACTICE OF SOME OF THE ASSESSEES OF NOT REPORTING THE FAIR MARKET VALUE OF THE IT.S.ENTERED INTO WITH THEIR AE.S,FOR PURCHASE/SALE OF GOOD OR FOR RENDERING /AV AILING OF SERVICES,PROVISIONS OF SECTION 92 OF THE ACT WERE INTRODUCED.PROXIMITY OF BOTH THE PARTI ES WOULD ALLOW THEM TO SHOW THE PROFIT OF THE CONTROLLED TRANSACTIONS IN THE MANNER THEY PREFERRE D.THEREFORE,IT WAS MANDATED THAT UNCONTROLLED TRANSACTIONS WITH THE NON-AES.,OF SIMILAR TYPES,SHO ULD BE TAKEN IN TO CONSIDERATION FOR DETERMIN - ING THE FACT AS TO WHETHER THE AE-TRANSACTIONS WERE EXECUTED AT THE SAME PRICE/PROFIT MARGIN.THE COMPARISON OF AE AND NON-AE TRANSACTIONS ENTERED IN TO IN ALMOST SIMILAR CONDITIONS AND CIRCUMSTANCES REDUCE THE POSSIBILITIES OF TRANSFERR ING OF PROFITS OUT -SIDE INDIA OR PAYING LESSER TAXES THAN THE DUE TAXES.IN SHORT,THE TP PROVISIONS TRY TO BRING PARITY BETWEEN THE CONTROLLED AND UNCONTROLLED IT.S OF SIMILAR NATURE.FOR THAT MATTER SOME METHODS HAVE BEEN INCORPORATED IN THE IT RULES,1962.THE METHOD IS PROCEDURAL PART OF THE TP EXERCISE,BUT THE SUBSTANTIVE LAW IS CHAPTER X OF THE ACT.WHAT HAS TO BE SEEN IN SUCH PR OCEEDINGS THAT IT.S ARE VALUED IN A REASON - ABLY FAIR MANNER.TP PROVISIONS ARE NOT BASED ON SOM E ARITHMETIC OR SCIENTIFIC FORMULAS THAT WOULD ALWAYS GIVE SIMILAR RESULTS IN SIMILAR CONDIT IONS.THEY FIND PLACE IN STATUTE TO TAKE CARE OF VARIOUS AND DIFFERENT SITUATIONS AND CIRCUMSTANCE O F DYNAMIC BUSINESS WORLD.THE METHOD ADOPTED BY THE DRP,IN OUR OPINION,WAS QUITE APPROPR IATE CONSIDERING THE PECULIARITIES OF THE FACTS OF THE CASE.IT DID NOT RESULT IN DELETING THE ENTIRE ADJUSTMENT PROPOSED BY THE TPO/AO-IT RESULTED IN LOWER ADJUSTMENT. THE AO HAD USED THE T IPS DATA BUT IT HAD SO MANY LACUNAS.THE DRP,THEREFORE,AFTER OBTAINING DETAILS OF ALL THE SE VEN AE AND NON-AE TRANSACTIONS,DIRECTED THE 1818/M/15 M/S. BILLION WEALTH MINERALS PVT.LTD. 7 AO TO FOLLOW A PARTICULAR METHOD.THUS,THERE IS NO B ASIC DIFFERENCE IN THE APPROACH OF THE TPO AND DRP.CERTAIN MODIFACTIONS,WERE MADE BY IT AND WE HOLD THAT SAME WERE REQUIRED TO DECIDE THE ALP. 6.4. WE WOULD ALSO LIKE TO MENTION THAT THE CASES RELIED UPON BY THE DR ARE NOT RELEVANT TO DECIDE THE ISSUE BEFORE US.IN THE CASE OF TILDA RICELAND P RIVATE LTD.(SUPRA)IT WAS HELD THAT TIPS DATA CAN ALSO BE USED FOR TP PURPOSES.THERE IS NO DOUBT ABOU T IT BUT THE ISSUE IS HOW IT SHOULD BE UTILISED.THE DRP HAD SPECIFICALLY POINTED OUT AS TO HOW THE TIPS DATA IN THE CASE UNDER CONSIDERATION WAS NOT APPLICABLE.IT POINTED OUT THE DEFICIENCIES OF THE DATA AND THE FACTORS THAT VITIATED THE COMPARABILITY.THUS,FACTS OF BOTH THE C ASES ARE TOTALLY DIFFERENT.IN THE CASE OF LIVING - STONES(SUPRA),THE TRIBUNAL HAS DEALT WITH THE METHO D TO BE ADOPTED FOR THE AE AND NON- AE INTERNATIONAL TRANSACTIONS.CONSIDERING THE PECULIAR FACTS OF DIAMOND INDUSTRIES IT HAD DEALT WITH THE ISSUE OF TNMM AND CUP METHODS.IN THE CASE OF SU PER HOUSE LEATHER LIMITED(SUPRA),THE MATTER HAD BEEN DECIDED CONSIDERING THE FACTS OF TH AT CASE.IN SHORT,NONE OF THESE CASES ARE OF ANY HELP TO HOLD THAT THE METHOD ADOPTED BY THE DRP WAS NOT FAIR. CONSIDERING THE ABOVE,WE CONFIRM THE DIRECTIONS OF THE DRP AND HOLD THAT SAME ARE NOT SUFFERING FROM ANY LEGAL OR FACTUAL INFIRMITY.EFFECTIVE GROUN D OF APPEAL,FILED BY THE AO,IS DECIDED AGAINST HIM. AS A RESULT,APPEAL FILED BY THE ASSESSING OFFICER STANDS DISMISSED. . ORDER PRONOUNCED IN THE OPEN COURT ON 19 TH JANUARY , 2018. 19 , 2018 SD/- SD/- ( / AMARJIT SINGH ) ( / RAJENDRA ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; /DATED :19.01.2018. JV.SR.PS. / COPY OF THE ORDER FORWARDED TO : 1. APPELLANT / 2. RESPONDENT / 3. THE CONCERNED CIT(A)/ , 4. THE CONCERNED CIT / 5. DR K BENCH, ITAT, MUMBAI / , , . . . 6. GUARD FILE/ //TRUE COPY// / BY ORDER, / DY./ASST. REGISTRAR , /ITAT, MUMBAI. 1818/M/15 M/S. BILLION WEALTH MINERALS PVT.LTD. 8 DATE INITIALS INITIAL 1. DRAFT DICTATED ON-DICTATION SHEETS ATTACHED/DIR ECT ON PC 2. DRAFT PLACED BEFORE AUTHOR 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 5. APPROVED DRAFT COMES TO THE SR.PS 6. KEPT FOR PRONOUNCEMENT 19/1/18 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 8. DATE ON WHICH FILE GOES TO THE A.R. FOR SIGNATUR E OF THE ORDER 9. DATE OF DISPATCH OF THE ORDER