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The assessee was an Indian company which filed its original return declaring total income which was subsequently revised to a loss on account of merger of some companies. The assessee reported certain international transactions including 'sale of pharmaceutical products'. The AO made a reference to the TPO for determining the ALP of the international transactions. Pursuant to the directions given by the DRP, the AO made TP adjustment in the impugned final assessment order.
Tribunal find that none of the two conditions enshrined in the Instruction of 2016 were satisfied inasmuch as neither TP adjustment of more than Rs. 10 crores was made for an earlier year nor, as a sequitur there was any question of such TP adjustment having been either upheld by a judicial authority or pending in appeal. That being the position, held that the AO made a reference to the TPO in contravention of Instruction of 2016. Since, the Instruction is binding on the AO, such reference is declared as invalid and the consequential TP adjustment more than 10 crores is directed to be deleted. The appeal of assessee was allowed.

Shanti Prime Publication Pvt. Ltd.

Sec. 92C & 92CA of Income-tax Act, 1961 - Transfer pricing - The assessee is aggrieved by the TP adjustment of Rs. 10,14,06,297 made in the final assessment order. The legal issue raised in the appeal poses a challenge to the jurisdiction of the AO in making a reference to the TPO for determining the ALP of the international transactions reported by the assessee. Tribunal allowed the appeal of the assessee holding that “none of the two conditions enshrined in the Instruction of 2016 were satisfied inasmuch as neither TP adjustment of more than Rs. 10 crores was made for an earlier year nor, as a sequitur there was any question of such TP adjustment having been either upheld by a judicial authority or pending in appeal. That being the position, we hold that the AO made a reference to the TPO in contravention of Instruction No. 3 of 2016. Since, the Instruction is binding on the AO, such reference is declared as invalid and the consequential TP adjustment of Rs. 10.14 crores is directed to be deleted”. - SAVA HEALTHCARE LTD. V/s DEPUTY CIT - [2020] 204 TTJ 513 (ITAT-PUNE)