DCIT, NEW DELHI vs. M/S METLIFE GLOBAL OPERATIONS SUPPORT CENTRE PVT. LTD.,, NEW DELHI

Whether the Dispute Resolution Panel (DRP) was justified in rejection or selection of comparables contested by the taxpayer and allowing to retain them in the final set of the TPO hich were discharging similar nature of functions referred to as IT enabled services by the Ld. DRP even while ignoring the decision of the Hon’ble Supreme Court in the case of Mumbai International Airport with regard to the “Doctrine of Approbation and reprobation”, wherein it has been laid down that a litigant cannot change and choose its stand to suit its convenience? 2. Whether the Ld. DRP was justified in laying down stringent standards of comparability and attempting to identify exact replica of the taxpayer for comparability analysis, whereas the Indian laws and the international jurisprudence recognize the reality that there cannot be an exact comparable in a given situation without any differences without appreciating that such stringency will defeat the purpose of flexibility provided in comparability analysis for determination of ALP? 3. Whether on facts and circumstances of the case, the Dispute Resolution Panel (DRP) was right in rejecting Acropetal Technologies Ltd. as a comparable by ignoring the fact that it provides IT enabled services. 4. The appellant craves to add, amend, alter or modify any of the above grounds of appeal.

During the hearing before us, it was submitted by the learned counsel of the assessee that the assessee had moved for Bilateral Advance Pricing Agreement (BAPA) with CBDT on 29th March, 2019 covering a period of consecutive five years commencing from financial year 2014-15 to financial year 2018- 19 (relevant to AY 2015-6 to AY 2019-20) with the roll back years commencing from financial year 2010-11 to financial year 2013- 14 (relevant to AY 2011-12 to AY 2014-15). The learned counsel further submitted that in the said ‘BAPA’, a mark-up of 15% on operating cost has been agreed for the transaction of provision IT enabled services and provided that the invoices in this regard should be realized within a period of 60 days from the date of issue of invoice. The Ld. counsel further submitted that pursuant to signing of BAPA, in accordance with the provision of the Income-tax Act, the assessee had filed an application dated 11th April, 2019 before the Tribunal for withdrawing its appeal bearing for the year under consideration and the said appeal has been dismissed by the Tribunal vide order dated 22nd April, 2018. Further, it was submitted that the assessee has already filed Annual Compliance Report and modified return of income for the year under consideration before the Assessing Officer and copy of the said acknowledgement was also submitted which is placed on record. The learned counsel submitted that as per Rule 10RA(5), the appeal filed by the Revenue have to be withdrawn by the Assessing Officer within three months of the filing of the modified return. Accordingly, he submitted that the Assessing Officer should withdraw the appeal within the period prescribed under the above mentioned provisions.

The learned DR also could not controvert the above factual position and submitted that he has already sought direction for withdrawing appeal from the competent authority. 4. We have heard the rival submissions and perused the relevant material on record. In view of BAPA entered into by the assessee with the CBDT on the issue of Transfer Pricing Adjustment, the assessee has already withdrawn its appeal and the Revenue is also not in a position to contest the ground raised in the appeal and this appeal has to be withdrawn by the Revenue in view of the Rule 10RA(5) which reads as under:

As the year under consideration, i.e., assessment year 2011- 12 is covered in roll back period of BAPA and issue involved in the grounds raised by the Revenue is covered under the BAPA, the appeal of the Revenue is held to be infructuous, hence, the same is dismissed as such. Order is pronounced in the open court on 12th July, 2019.