M/S. BORG WARNER MORSE TEC INDIA PVT. LTD.,CHENNAI vs. ACIT, CHENNAI

The main ground of the appeal of the assessee in the transfer pricing appeal is against the DRP in not considering the revised return of income filed by the assessee, though raised as additional grounds of appeal. Since the additional grounds of appeal raised before us relates to determination of computation of taxable total income, we have admitted the same for adjudication.

Brief facts of the case are that the assessee company has filed the original return of income on 30.09.2009 and subsequently a revised return f income on 30.03.2011 for the assessment year 2009-10 claiming a loss of ₹.76,10,104/- reckoned the same while computing the taxable income of the assessee and passed the draft assessment order under section 143(3) r.w.s. 92CA of the Act. However, Transfer Pricing Officer has observed that the arms length price for sale price calculated on an international transactions has not been determined by the assessee company in accordance with section 92C(3) of the Act and the ALP has been calculated as per the provisions of sub-sections (1) and (2) of section 92C of the Act. Hence an adjustment in the income of the assessee amounting to ₹.1.10 crores has to be made to the income of the assessee.

On appeal before the ld. DRP, the ld. DRP, though considered the revised return filed by the assessee on 30.03.2011 with a loss of ₹.76,10,104/- for computation of income, but not considered the another revised return of income filed by the assessee on 31.03.2011.

On being aggrieved, the assessee is in appeal before the Tribunal.

We have heard both sides, perused the materials on record and gone through the orders of authorities below. The assessee has filed revised return of income on 30.03.2011 with a loss of ₹.76,10,104/- for computation of income, which was considered by the Assessing Officer as well as ld. DRP. However, before us, both parties have agreed that the authorities below have not considered the another revised return of income filed by the assessee on 31.03.2011, wherein, upwards adjustment of ₹.5,16,65,294/- to its returned income on account of excess material consumption claimed in this year as has been mentioned at para 14 of its order. There is no dispute that the assessee has filed the revised return of income on 31.03.2011 within the stipulated period as contemplated under section 139(4) of the Act. However, both the TPO and ld. DRP has not considered the same in their orders. Accordingly, we remit the matter back to the ld. DRP to consider the revised return of income filed by the assessee on 31.03.2011 and decide the entire issue in accordance with law after allowing opportunity of hearing to the assessee. Since we have considered and admitted the additional ground raised by the assessee with regard to non-consideration of revised return filed by the assessee for adjudication and remitted back to the ld. DRP to consider the same and decide the entire issues afresh, the grounds raised in the grounds of appeal require no adjudication at this juncture.

In the result, the appeal filed by the assessee is allowed for statistical purposes. Order pronounced on the 30th June, 2016 at Chennai.