UOP INDIA PRIVATE LIMITED vs. PCIT 9 PRINCIPAL COMMISSIONER OF INCOME TAX 9

With the consent of the counsel for the parties, the appeal is taken up for final hearing and disposal, at this stage itself. 4. Briefly, the record shows that the Transfer Pricing Officer (TPO) had accepted OTL as a comparable, which was embedded in the appellant/assessee’s transfer pricing study report. 4.1 The record also shows that the appellant/assessee had carried the matter in appeal before the Commissioner of Income Tax (Appeals) on other grounds, not connected with the exclusion of OTL as a comparable. 4.2 The CIT(A), via order dated 18.05.2017, excluded two comparables, i.e., M/s L&T Ramboll Engineering Consulting Services [in short, “L&T”] and Mitcon Consultancy Services [in short, “Mitcon”]. 4.3 This resulted in both the appellant/assessee as well as the respondent/revenue preferring appeals with the Tribunal. 5. The Tribunal, via the impugned order dated 03.03.2023, passed the following operative directions: “13. In a nutshell, we hold that the following comparables are directed to be excluded:-  Mitcon Consultancy Services  L&T Ramboll Consulting Engineers Ltd  Onward Technologies Ltd  HCCA Business Services Pvt. Ltd  Killick Agencies & Mktg. Limited  Cyber Media India Online Limited  Times Innovative Media Limited  Global Procurement Consultants Limited  Indiacom Limited”

The record shows that in the course of the proceedings conducted by the Tribunal, the following additional grounds were entertained by the Digitally Signed By:TARUN RANA Signing Date:09.10.2023 18:36:05 Signature Not Verified

Against this backdrop, arguments on behalf of the appellant/assessee have been advanced by Mr Deepak Chopra, while on behalf of the respondent/revenue, submissions have been made by Mr Aseem Chawla, learned senior standing counsel. 8. Mr Chopra contends that once the TPO accepted the comparable OTL, it could not have been excluded by the Tribunal in the exercise of powers under Section 254 of the Act. 8.1 Mr Chopra contends that the Assessing Officer (AO) had no option but to accept the order passed by the TPO. 8.2 According to Mr Chopra, if the respondent/revenue was aggrieved, it could have, at a relevant point in time, exercised revisionary power under Section 263 of the Act. 9. On the other hand, Mr Chawla contends that the Tribunal under Digitally Signed By:TARUN RANA Signing Date:09.10.2023 18:36:05 Signature Not Verified

Clearly, even according to Mr Chawla, the TPO had accepted the comparable OTL. 13. A perusal of the impugned order shows that the Tribunal has only recorded the contentions of both sides and perhaps, proceeded based on incorrect facts. The comparable OTL, according to the counsel for the parties, was indeed included in the Transfer Pricing Study Report. It is also not in dispute that the TPO had accepted OTL as a comparable. The Tribunal, in our view, without discussing the scope and ambit of its power under Section 254, has proceeded to issue operative directions, which, inter alia, excluded OTL as a comparable. 14. Given this position, counsel for the parties say, and something that we tend to agree with, that the matter needs a relook by the Tribunal, with regard to the scope and ambit of its power under Section 254 of the Act. 15. Accordingly, the question of law, as framed, is answered in favour of the appellant/assessee for statistical purposes. 16. The impugned order is set aside. Digitally Signed By:TARUN RANA Signing Date:09.10.2023 18:36:05 Signature Not Verified

The Tribunal will decide the issue as regards the scope and ambit of its powers under Section 254 of the Act and then, having regard to the facts on record, reach a conclusion one way or the other, as to the validity of OTL’s exclusion as a comparable. 18. The appeal is disposed of in the aforesaid terms.