Microchip Technology (India) Private Limited, Bangalore V. Asst.C.I.T., Bangalore

ITA 260/BANG/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 7388 (ITAT-BANGALORE)
• Duration Of Justice: 2 year(s) 7 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-10-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 18-05-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 02-03-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: RAMADHYAINI
• Keywords: Related party transaction; Transfer pricing; International transaction
• Section: 92C; 133(6)

Judgement Text

IT(TP)A.260/BANG/2015 PAGE - 1 IN THE INCOME TAX APPELLATE TRIBUNAL BENGALURU BENCH 'B', BENGALURU BEFORE SHRI. A. K. GARODIA, ACCOUNTANT MEMBER AND SHRI. LALIET KUMAR, JUDICIAL MEMBER I.T(TP).A NO.260/BANG/2015) (ASSESSMENT YEAR : 2010-11) MICROCHIP TECHNOLOGY (INDIA) P. LTD, .. APPELLA NT NO.149B, EPIP, 1 ST PHASE, INDUSTRIAL AREA, WHITEFIELD, BENGALURU 560 066 PAN : AABCM9868J V. ASST. COMMISSIONER OF INCOME-TAX, CIRCLE -4(1), BENGALURU .. RESPONDENT ASSESSEE BY : SHRI. RAMADHYAINI, CA REVENUE BY : SHRI. RAJESH JHA, CIT - DR HEARD ON : 14.08.2017 PRONOUNCED ON : 27.10.2017 O R D E R PER LALIET KUMAR, JUDICIAL MEMBER : THIS APPEAL FILED BY THE ASSESSEE IS ARISING OUT O F THE ACIT, CIRCLE -4(1)(2), BENGALURU, DT.29.12.1014, PASSED U /S.143(3) R.W.S.144C(5) OF THE ACT, IN PURSUANCE TO THE DIREC TIONS OF THE DRP, FOR THE ASSESSMENT YEAR 2010-11, ON THE FOLLOWING G ROUNDS OF APPEAL : IT(TP)A.260/BANG/2015 PAGE - 2 IT(TP)A.260/BANG/2015 PAGE - 3 IT(TP)A.260/BANG/2015 PAGE - 4 02. GROUND NO.1, 2 AND 3 ARE GENERAL THEREFORE NEE D NO ADJUDICATION BY THE BENCH. GROUNDS 4 TO 7 OF APPEAL PERTAINS TP ADJUSTMENT AND SPECIFIC GRIEVANCE IS REGARDING THE DIRECTION OF TH E DRP TO ADOPT 0% RPT FILTER AND ELIMINATING COMPARABLE WITH LESS THA N 1 CRORE TURNOVER AND CONSIDERING OTHER COMPARABLE WITH HIGH TURNOVER IN SELECTING THE COMPARABLES. ASSESSEE HAS ALSO ONE MORE GRIEVANCE THAT THE DRP HAS NOT DIRECTED TO GIVE STANDARD DEDUCTION AT THE RATE OF 5% UNDER PROVISO TO SECTION 92C(2) OF THE ACT. 03. AT THE OUTSET, THE BENCH HAD INFORMED TO THE PA RTIES THAT THE TRIBUNAL IS RESTORING THE CASES, BACK TO THE FILE O F THE TPO / AO FOR FRESH CONSIDERATION AND ADJUDICATION, WHERE THE ASS ESSEE / REVENUE ARE RAISING THE GROUNDS FOR APPLICATION OF TURNOVER FI LTER / HIGH PROFIT FILTER, IN THE LIGHT OF THE JUDGMENT OF HONBLE DEL HI HIGH COURT IN THE MATTER OF CHRYSCAPITAL INVESTMENT ADVISORS (INDIA) P. LTD V. DCIT [(2015) 56 TAXMANN.COM 417]. IN THE SAID JUDGMENT H ONBLE HIGH COURT HAS HELD THAT THOUGH TURNOVER CANNOT BE A CRI TERIA FOR INCLUSION / EXCLUSION OF THE COMPARABLE, BUT IT IS FOR THE DRP / TPO TO EXAMINE WHETHER THE TURNOVER HAS AFFECTED THE PRICE OR MARG IN OF THE COMPARABLE WITH THAT OF THE ASSESSEE OR NOT. IF TH E TURNOVER HAS NOT AFFECTED THE MARGIN OR PRICE OF THE COMPARABLE AND THE COMPARABLE IS OTHERWISE COMPARABLE ON THE TEST-STONE OF FAR, THEN IT CANNOT BE INCLUDED / EXCLUDED MERELY ON THE GROUND OF TURNOVE R. IT(TP)A.260/BANG/2015 PAGE - 5 04. IN VIEW OF THE ABOVE THE LD AR AND DR HAD AGRE ED THAT, THE CASE BE REMANDED BACK FOR CONSIDERATION TO TPO/ AO FOR APPLYING THE JUDGMENT OF HONBLE DELHI HIGH COURT IN THE MATTER OF CHRYSCAPITAL INVESTMENT ADVISORS (INDIA) P. LTD V. DCIT(SUPRA) . IN VIEW THEREOF WE DEEM IT APPROPRIATE TO REMAND THE ENTIRE TP ISSU E TO THE FILE OF DRP OF EXAMINE A FRESH FUNCTIONAL SIMILARITY AND AP PLICATION OF THE TURNOVER FILTER WITH A DIRECTION TO ADJUDICATE THE GROUNDS IN THE LIGHT OF THE OBSERVATIONS MADE IN THE MATTER OF CHRISCAPITA L INVESTMENT ADVISORS (INDIA) P. LTD (SUPRA). 05. APROPOS RPT FILTER THE BENCH HAS ALSO POINTED O UT THAT THE TRIBUNAL IS DIRECTING TAKING 25% RPT FILTER AS AGA INST 0% IN ITS ORDER IN THE MATTER OF ACI WORLDWIDE SOLUTIONS P. LTD (IT(TP)A.262/BANG/2015, DT.26.07.2017, HAS EXTENSIV ELY DEALT WITH THE ISSUE OF RPT FILTER, TO THE FOLLOWING EFFECT : 12. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSE D THE RECORD. WE WOULD LIKE TO BRING ON RECORD THAT THE ASSESSEE HAS NOT RAISED THE OBJECTION WITH REGARD TO RPT EITHER AT THE STAGE OF TPO OR BEFORE THE DRP. THEREFORE, THE DRP DID NOT HAVE THE OCCASION TO EXAMINE THE RPT OF L & T LTD, WITH ITS OTHER RELATED PARTIES. NONETHELESS, THE TRIBUNAL IN ITS ORDER IN ELECTRONICS FOR IMAGING IN DIA LTD (SUPRA), HAS NOT DISPUTED THAT RPT OF L & T LTD WAS 18.66% AND T HEREFORE, IN PARA 65 OF THE ORDER HAS DIRECTED TO APPLY 15% OF RPT IN RESPECT OF ALL COMPARABLES. 12. FURTHER WE NOTICE BENGALURU ITAT I N A RECENT DECISION IN THE MATTER OF SUNGARD SOLUTIONS (INDIA) P. LTD [IT(TP)A.1041, 1379, 1106/BANG/2011, DT.28.04.2017] HAS HELD IN PARA 5 AS UNDER: 5. RPT FILTER OF 0%:- WE HAVE HEARD THE LD. AR AS W ELL AS LD. DR AND CONSIDERED THE RELEVANT MATERIAL ON RECORD. THE TPO APPLIED IT(TP)A.260/BANG/2015 PAGE - 6 THE FILTER OF 25% OF RPT WHILE SELECTING THE COMPAR ABLES. WHEREAS THE CIT(A) HAS APPLIED A FILTER OF 0% RPT. WE FIND THAT 0% RELATED PARTY TRANSACTION IS A IMPOSSIBLE SITUATION AND THE REFORE IF THE SAID FILTER IS APPLIED THEN THE COMPARABLE COMPANIES WIL L NOT BE AVAILABLE FOR DETERMINING THE ARMS LENGTH PRICE. TH US TO AVOID THIS PRACTICAL DIFFICULTY OF SELECTING THE COMPARABLE CO MPANIES THIS TRIBUNAL IN A SERIES OF DECISIONS HAVE TAKEN A VIEW THAT A TOLERANCE RANGE OF RELATED PARTY TRANSACTION CAN BE CONSIDERE D FROM 5% TO 25% DEPENDING UPON THE FACTS AND CIRCUMSTANCES OF E ACH CASE PARTICULARLY THE AVAILABILITY OF THE COMPARABLE COM PANIES. IN ORDINARY CIRCUMSTANCES WHEN THERE IS NO DIFFICULTY OF SELECTING THE COMPARABLE COMPANIES THE TOLERANCE RANGE OF 15% OF RELATED PARTY IS CONSIDERED TO BE PROPER. ONLY IN EXTREME AND EXC EPTIONAL CIRCUMSTANCES WHEN THE COMPARABLE COMPANIES ARE NOT EASILY AVAILABLE OR FOUND THEN THIS TOLERANCE RANGE IS REL AXED UP TO 25%. THEREFORE IN THE CASE OF THE ASSESSEE WHERE NEITHER THE TPO NOR THE ASSESSEE HAS MADE OUT A CASE OF EXCEPTIONAL DIFFICU LTY IN SEARCHING THE COMPARABLE COMPANIES THEN THE NORMAL TOLERANCE RANGE OF 15% SHALL BE TAKEN AS PROPER. HENCE WE SET ASIDE THE OR DER OF THE CIT(A) QUA THIS ISSUE OF RELATED PARTY TRANSACTION FILTER AND ALSO MODIFY THE ORDER OF THE TPO ON THIS ISSUE AND HOLD THAT 15% TO LERANCE RANGE OF RELATED PARTY IS REASONABLE AND PROPER IN THE CA SE OF THE ASSESSEE. FOLLOWING THE PRINCIPLES LAID DOWN BY BENCH IN THE ABOVE NOTED CASE , IT WAS SUGGESTED OBJECTIONS RAISED REGARDING THE SU ITABILITY OF COMPARABLES HAVE TO BE EXAMINED CONSIDERING THIS D ECISION, ALONG WITH OTHER ASPECTS. 06. THE LD. DR FAIRLY SUBMITTED TO THE SUGGESTION OF BENCH THAT THE ENTIRE TP MATTER SHOULD GO BACK TO THE TPO FOR FRES H DECISION WITH SUITABLE DIRECTIONS. IT(TP)A.260/BANG/2015 PAGE - 7 07. ON THE CONTRARY, THE LD. AR HAS AGITATED THAT T HESE GROUNDS ARE TO BE DECIDED ON THE BASIS OF THE DECIDED CASES BAS ED ON THE PRECEDENCE. 08. WE HAVE HEARD THE RIVAL CONTENTION OF THE PARTI ES AND PERUSED THE MATERIAL ON RECORD. IN OUR VIEW, THE ENTIRE MA TTER IS REQUIRED TO BE RESTORED BACK TO THE FILE OF THE TPO WITH A DIRECTI ON THAT THE TPO SHOULD DECIDE THE ENTIRE TP ISSUES AFTER APPLYING THE RATIO OF 25% OR 15% RPT FILTER AS LAID DOWN BY THE COORDINATE BENCH OF THE TRIBUNAL IN ACI WORLDWIDE SOLUTIONS P. LTD (SUPRA). 09. REGARDING STANDARD DEDUCTION UNDER PROVISO TO S ECTION 92C(2) OF THE ACT, WE HOLD THAT AFTER AMENDMENT, THE BENEF IT IS ALLOWABLE ONLY IF THE ALP IS WITHIN THE RANGE OF + / - 5% AND NO B ENEFIT IS ALLOWABLE IF THE DIFFERENCE EXCEEDS + / - 5%. 10. AT THIS STAGE, WE WOULD LIKE TO DEAL WITH ONE O F THE CONTENTION RAISED BY THE LD. AR THAT THE PRESENT CASE SHOULD BE DECIDED BASED ON THE OTHER DECISION REFERRED BY THE ASSESSEE AT BAR, ALLEGING THE ISSUE IS COVERED BY SAID DECISIONS . IN THIS REGARD WE MAY POINT OUT A DECISION OF THE COORDINATE BENCH IN THE MATTER OF AIRCOM INT ERNATIONAL [2017] 84 TAXMANN.COM 218 (DELHI - TRIB.) [ITA.6402/DELHI/2012, DT.02.08.2017], WHEREIN AT PARAS 8 TO 12, WHEREIN THE BENCH HAD REPELLED SIMILAR CONTENTION OF THE ASSESSEE BY GIVI NG THE FOLLOWING REASONING : IT(TP)A.260/BANG/2015 PAGE - 8 8. AT THIS STAGE, IT IS ALSO ESSENTIAL TO DEAL WITH A SUBMISSION ADVANCED BY THE LD. AR, WHICH IS COMMON TO MOST OF THE COMPANIES UN DER CHALLENGE, TO THE EFFECT THAT CERTAIN BENCHES OF THE TRIBUNAL IN OTHE R CASES HAVE HELD THEM TO BE NOT COMPARABLE. IN THAT VIEW OF THE MATTER, IT WAS URGED THAT THOSE COMPANIES, BEING EX FACIE INCOMPARABLE, BE EXCLUDED FROM THE LIST OF COMPARAB LES DRAWN BY THE TPO. 9. WE EXPRESS OUR RESERVATIONS IN ACCEPTING SUCH A BRO AD PROPOSITION. IT IS AXIOMATIC THAT IF COMPANY 'A' IS FUNCTIONALLY DIFFE RENT FROM COMPANY 'B', THEN, SUCH A COMPANY CANNOT BE CONSIDERED AS COMPAR ABLE. TWO COMPANIES CAN BE TREATED AS COMPARABLE WHEN BOTH ARE DISCHARG ING OVERALL SIMILAR FUNCTIONS, THOUGH THERE MAY BE SOME MINOR DIFFERENC ES IN SUCH FUNCTIONS, NOT MARRING THE OTHERWISE COMPARABILITY. NOTWITHSTANDIN G THE FUNCTIONAL SIMILARITY, MANY A TIMES A COMPANY CEASES TO BE COM PARABLE BECAUSE OF OTHER REASONS AS WELL. TO CITE AN EXAMPLE, IF COMPANY 'A' , THOUGH FUNCTIONALLY SIMILAR TO COMPANY 'B', BUT HAS RELATED PARTY TRANS ACTIONS (RPTS) BREACHING A PARTICULAR LEVEL, THEN, SUCH COMPANY CANNOT BE CONS IDERED AS COMPARABLE TO COMPANY 'A' IN THE YEAR IN WHICH THE RPTS BREACH SU CH A LEVEL. IF, HOWEVER, IN THE SUBSEQUENT YEAR, THE RELATED PARTY TRANSACTI ONS FALL BELOW THAT BARRIER, THEN SUCH COMPANY WOULD AGAIN BECOME COMPARABLE. IN THE LIKE MANNER, A COMPANY MIGHT HAVE BEEN TREATED AS NON-COMPARABLE D UE TO THE TPO ADOPTING ITS ENTITY LEVEL RESULTS FOR COMPARISON WI TH THE SEGMENTAL RESULTS OF THE CASE BEFORE HIM, BUT IN A LATER CASE, THE TPO M AY TAKE ONLY THE RELATED SEGMENT RESULTS. IN SUCH A LATER CASE, THE COMPANY TREATED AS NON-COMPARABLE TO THE FIRST COMPANY MAY BECOME COMPARABLE TO THE S ECOND COMPANY. TO PUT IT SIMPLY, IF COMPANY 'A' HAS BEEN HELD TO BE INCOM PARABLE VIS-A-VIS COMPANY 'B', THEN IT IS NOT ESSENTIAL THAT COMPANY 'A' WOUL D BE INCOMPARABLE TO COMPANY 'C' ALSO. WHAT IS RELEVANT TO CONSIDER IS, FIRSTLY, THE FUNCTIONAL PROFILE OF COMPANY 'A' VIS- A-VIS COMPANY 'C'. IF BOTH ARE FUNCTIONALLY SIMILAR, THEN NOTWITHSTANDING THE FACT THAT COMPANY 'A' WAS HELD TO BE INCOMPARABLE TO COMPANY 'B', IT MAY STILL BE COMPARABLE TO COMPA NY 'C'. DESPITE THE FACT THAT COMPANY 'A' IS FUNCTIONALLY SIMILAR TO COMPANY 'B', IT STILL MIGHT HAVE BEEN DECLARED AS INCOMPARABLE TO COMPANY 'B' BECAUS E OF OTHER RELEVANT REASONS. IF COMPANY 'A' PASSES THE SAME REASONS VIS-A-VIS COMPANY 'C', THEN COMPANY 'A' WILL FIND ITS PLACE IN THE LIST OF COMP ARABLES OF COMPANY 'C', NOTWITHSTANDING THE FACT THAT IT WAS HELD TO BE INC OMPARABLE TO COMPANY 'B'. THE CRUX OF THE MATTER IS THAT THE MERE FACT THAT C OMPANY 'A' HAS BEEN HELD TO BE NOT COMPARABLE IN A JUDICIAL ORDER PASSED IN THE CASE OF COMPANY 'B', DOES NOT PER SE MAKE IT INCOMPARABLE IN ALL THE SUBSEQUENT CASES TO FOLLOW. NOT ONLY COMPANY 'A' HELD TO BE INCOMPARABLE TO COMPANY 'B' CAN BE COMPARABLE TO COMPANY 'C', BUT COMPANY 'X' HELD TO BE COMPARAB LE TO COMPANY 'Y' CAN ALSO BE INCOMPARABLE TO COMPANY 'Z', DEPENDING UPON THE FUNCTIONAL PROFILE AND THE APPLICABILITY OR OTHERWISE OF THE RELATED F ACTORS. THUS, IT IS CLEARLY DEDUCTIBLE THAT IF A PARTICULAR COMPANY HAS BEEN HE LD TO BE NOT COMPARABLE IN THE CASE OF ANOTHER COMPANY, THEN SUCH FORMER COMPA NY MAY NOT ALWAYS BE NON-COMPARABLE TO THE ASSESSEE COMPANY ALSO. THE CO MPARABILITY OF EACH COMPANY NEEDS TO BE ASCERTAINED ONLY AFTER MATCHING THE FUNCTIONAL PROFILE IT(TP)A.260/BANG/2015 PAGE - 9 AND THE RELEVANT REASONS OF THE OTHER COMPANY. ERGO , THIS PRELIMINARY CONTENTION RAISED ON BEHALF OF THE ASSESSEE IS REJE CTED AS DEVOID OF MERITS. 10. WE WOULD ALSO DEAL WITH ANOTHER PRELIMINARY LEGAL CONTENTION RAISED BY THE LD. AR. IT WAS SUBMITTED THAT THE TPO, DURING T HE COURSE OF PROCEEDINGS BEFORE HIM, RECEIVED INFORMATION U/S 133(6) OF THE ACT FROM VARIOUS COMPANIES. RELYING ON SUCH INFORMATION, THE TPO MAD E CERTAIN INCLUSIONS/EXCLUSIONS FROM THE LIST OF COMPARABLES WHICH, IN THE OPINION OF THE LD. AR, WAS NOT WARRANTED. HE STATED THAT THE T PO SHOULD NOT HAVE COLLECTED INFORMATION U/S 133(6) OR USED THE SAME A GAINST THE ASSESSEE IN DECIDING THE COMPARABILITY OR OTHERWISE OF THE COMP ANIES BEFORE HIM. THIS WAS STRONGLY OPPOSED BY THE LD. DR. 11. WE ARE NOT CONVINCED WITH THE ARGUMENT OF THE LD. AR FOR PROHIBITING THE TPO FROM COLLECTING ANY INFORMATION U/S 133(6) FOR THE PURPOSE OF DETERMINING THE COMPARABILITY AND THEN USING THE SA ME. SECTION 92(1) OF THE ACT PROVIDES THAT ANY INCOME ARISING FROM AN INTERN ATIONAL TRANSACTION SHALL BE COMPUTED HAVING REGARD TO THE ARM'S LENGTH PRICE . SECTION 92C EMPOWERS THE ASSESSING OFFICER TO DETERMINE THE ARM'S LENGTH PRICE OF THE INTERNATIONAL TRANSACTIONS. SUB-SECTION (3) PROVIDES THAT THE AO MAY PROCEED TO DETERMINE THE ALP OF AN INTERNATIONAL TRANSACTION, WHERE HE ' ON THE BASIS OF MATERIAL OR INFORMATION' OR DOCUMENTS IN HIS POSSESSION, IS OF THE OPINION T HAT THE PRICE CHARGED OR PAID IN AN INTERNATIONAL TRANSACTION IS NOT AT ARM'S LENGTH PRICE ETC. SECTION 92CA PROVIDES THAT THE ASSESSING OFFICER MA Y REFER THE DETERMINATION OF ALP IN RELATION TO THE INTERNATION AL TRANSACTIONS TO THE TRANSFER PRICING OFFICER (TPO). SUB-SECTION (3) OF SECTION 92CA PROVIDES THAT THE TPO SHALL PASS ORDER DETERMINING THE ALP O F THE INTERNATIONAL TRANSACTION ' AFTER TAKING INTO ACCOUNT ALL RELEVANT MATERIALS WH ICH HE HAS GATHERED. ' SUB-SECTION (7) OF SECTION 92CA EXPLICITLY PROVID ES THAT: ' THE TRANSFER PRICING OFFICER MAY, FOR THE PURPOSES OF D ETERMINING THE ARM'S LENGTH PRICE UNDER THIS SECTION, EXERCISE ALL OR AN Y OF THE POWERS SPECIFIED IN .. SUB-SECTION (6) OF SECTION 133 .. '. IN VIEW OF THE CLEAR-CUT PROVISION ENSHRINED UNDER SUB-SECTION (7) EMPOWERING THE TPO TO COLLECT INFORMATION, INTER ALIA, U/S 133(6) OF THE ACT READ IN CONJUNCTION WITH SUB- SECTION (3) OF SECTION 92CA, THERE REMAINS NO DOUBT WHATSOEVER THAT THE TPO IS FULLY EMPOWERED TO SEEK INFORMATION U/S 133(6) O F THE ACT FOR THE PURPOSE OF DETERMINING THE ARM'S LENGTH PRICE. THERE IS NO EMBARGO ON HIS POWERS IN COLLECTING INFORMATION FROM THE RELEVANT COMPANIES FOR SEEING IF THEY ARE REALLY COMPARABLE/INCOMPARABLE. IN OUR CONSIDERED O PINION, IT IS NOT THE PREROGATIVE, BUT, THE DUTY OF THE TPO TO COLLECT VI TAL MISSING INFORMATION NECESSARY FOR DETERMINING THE COMPARABILITY OF THE COMPANIES CONSIDERED OR TO BE CONSIDERED AS COMPARABLE WITH THE ASSESSEE CO MPANY. IT IS POSSIBLE THAT SOMETIMES IMPORTANT INFORMATION CONCERNING THE EXAC T FUNCTIONAL PROFILE OR THAT OF A RELEVANT SEGMENT MAY NOT BE AVAILABLE IN THE DATABASE OR MAY NOT EMANATE FROM THE ANNUAL REPORT AVAILABLE IN THE PUB LIC DOMAIN AND SUCH MISSING INFORMATION IS ESSENTIAL. SIMILARLY, THERE MAY BE A LACK OF PROPER DISCLOSURE OF THE RELATED PARTY TRANSACTIONS OR ANY OTHER INFORMATION NECESSARY FOR DETERMINING THE COMPARABILITY. SOME OTHERWISE C OMPARABLE COMPANIES IT(TP)A.260/BANG/2015 PAGE - 10 MAY HAVE A DIFFERENT FINANCIAL YEAR ENDING AND SOME TIMES IT BECOMES ESSENTIAL TO OBTAIN THE DATA FOR THE YEAR MATCHING WITH THE ASSESSEE. SIMILARLY, THERE MAY BE SEVERAL OTHER SITUATIONS WARRANTING CO LLECTION OF INFORMATION FROM THE COMPANIES U/S 133(6) OF THE ACT. THE INFOR MATION SO COLLECTED CAN ALWAYS BE LAWFULLY USED FOR OR AGAINST THE ASSESSEE PROVIDED THE ASSESSEE IS CONFRONTED WITH SUCH INFORMATION AND HAS BEEN GIVEN OPPORTUNITY OF EXPLAINING ITS STAND ON THE SAME. IF THE INFORMATIO N SO COLLECTED BY THE TPO U/S 133(6) OF THE ACT HAS BEEN CONFRONTED AND THE A SSESSEE GIVEN AN OPPORTUNITY TO EXPLAIN ITS POSITION QUA SUCH INFORMATION, THERE CAN BE NO FETTER ON THE POWERS OF THE TPO TO VALIDLY TAKE COG NIZANCE OF THE SAME. THE INFORMATION FOR THE RELEVANT YEAR, AVAILABLE AS SUC H IN THE PUBLIC DOMAIN OR SO COLLECTED, IS ALWAYS MORE AUTHENTIC THAN THE INFORM ATION AVAILABLE ON THE WEBSITE OF THE COMPARABLE COMPANY, WHICH IS NORMALL Y TAKEN DURING THE COURSE OF PROCEEDINGS BEFORE THE TPO. SUCH INFORMAT ION ON THE WEBSITE IS ORDINARILY GERMANE TO THE DATE WHEN IT IS TAKEN, WH ICH IS NORMALLY AFTER A PERIOD OF FEW YEARS FROM THE END OF THE RELEVANT AS SESSMENT YEAR. IN CONTRAST TO THAT, THE INFORMATION COLLECTED BY THE TPO U/S 1 33(6) OF THE ACT IS FOR THE YEAR IN QUESTION, WHICH IS AUTHENTIC AND RELIABLE. 12. ADVERTING TO THE FACTS OF THE INSTANT CASE, WE FIN D FROM PAGE 135 OF THE TPO'S ORDER THAT: 'THE COPIES OF NOTICE U/S 133(6) ISSUED TO THE COMPANIES AS WELL AS THE COPY OF THE REPLIES RECEIVED FROM THE C OMPANIES WERE, IN FACT, GIVEN TO THE TAX PAYER IN A SOFT COPY FOR ITS COMME NTS.' NOT ONLY THAT, THE DECISION OF THE TPO BASED ON THE INFORMATION COLLEC TED WAS ALSO COMMUNICATED TO THE ASSESSEE VIDE HIS SHOW CAUSE NO TICE. UNDER THESE CIRCUMSTANCES, WE FAIL TO COUNTENANCE THE CONTENTIO N OF THE LD. AR FOR NOT RELYING ON SUCH INFORMATION AS OBTAINED BY THE TPO U/S 133(6) OF THE ACT. THE CONTENTION RAISED BY THE LD. AR IN THIS REGARD IS, THEREFORE, JETTISONED. 11. FROM A PERUSAL OF THE ABOVE, IT IS CLEAR THAT A NY COMPARABLE WHICH HAS BEEN DELETED TREATING THAT SUCH COMPARABL E AS FUNCTIONALLY NOT SIMILAR TO THE ASSESSEE, CANNOT BE A GROUND FOR EXCLUDING THE COMPARABLE IN ANOTHER CASE. THEREFORE, THE CONTENT ION OF THE LD. AR FOR DECIDING THE MATTER ON MERIT RELYING UPON THE O THER CASE LAWS, IS REJECTED. IT(TP)A.260/BANG/2015 PAGE - 11 12. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THE 27TH DAY OF OCTOBER, 2017. SD/- SD/- (A. K. GARODIA) (LALIET KUMAR) ACCOUNTANT MEMBER JUDICIAL M EMBER BENGALURU DATED : 27.10.2017 MCN* COPY TO: 1. THE ASSESSEE 2. THE ASSESSING OFFICER 3. THE COMMISSIONER OF INCOME-TAX 4. COMMISSIONER OF INCOME-TAX(A) 5. DR 6. GF, ITAT, BANGALORE BY ORDER SENIOR PRIVATE SECRETARY