IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH, ‘H’: NEW DELHI BEFORE SHRI PRAKASH CHAND YADAV, JUDICIAL MEMBER AND SHRI BRAJESH KUMAR SINGH, ACCOUNTANT MEMBER ITA No.325/DEL/2017 [Assessment Year: 2009-10]

Opus International (M) Additional Director of Income Tax, Berhad India Project, (International Taxation), Range-2, Office Unit No.220, Suncity Vs Circle-2(2)(2), Room No.615, Trade Tower, Near Krishna Block-E-2, Civic Centre, Chowk, Sector-21, Gurgaon, New Delhi Haryana-122001 PAN-AABCO2273R Appellant Respondent Appellant by None Respondent by Shri Bhopal Sigh Sr. DR Date of Hearing 05.05.2025 Date of Pronouncement .05.2025

ORDER

PER PRAKASH CHAND YADAV, JM The present appeal of the assessee is arising out of the order of the Ld. Commissioner of Income Tax (Appeals)-44, New Delhi, dated

22.08.2016 and relates to Assessment year 2009-10.

2. Brief facts of the case as coming out of the orders of the authorities below are thatthe assessee i.e. Opus International (M) Berhad-company incorporated under the laws of Malaysia, was awarded the contract by Punjab Rural Development Board (hereinafter referred as "PRBDB") for providing the consultancy services related to roads and highways in state of Punjab. To render the services to PRBDB in India, Opus International (M)

Berhad India Project Office (hereinafter referred to as"Appellant") was incorporated on July 18, 2008. It has its registered office atC4/54, Safdurjung Development Area, New Delhi 110016 filed its return of income on 05.08.2010.The return of income filed by the assessee was picked up for scrutiny by Assistant Director of Income Tax, Circle 2(1), International Taxation, New Delhi (hereinafterreferred to as "AO").The learned AO also referred the international transactions with associatedenterprises (in short ‘AE’) for the said assessment year to the Deputy Director of Income Tax(TPО-II(5)) - New Delhi (hereinafter referred to as "TPO"), to determine the arm'slength price. Thereafter, the TPO passed the order u/s 92CA(3) on 21.01.2013, which order has been further revised u/s 154 of the Act on 05.03.2013 and an adjustment of Rs.22,83,726/- has been made by the TPO.

3. Aggrieved with the order of the Assessing Officer, the assessee filed appeal before the Ld. CIT(A). The Ld. CIT(A) partly upheld the order of the TPO interalia observing that comparables chosen are not accordance with FAR test applicable to the TP case. The Ld. CIT(A) after considering the objections of the assessee, partly allowed the appeal of the assessee.

4. Aggrieved with the order of the Ld. CIT(A), the assessee has come up in appeal before us by raising the following grounds of appeal:-

Ground No.1:

The order passed by the learned Commissioner of Income Tax (Appeals) (hereinafter referred to as "CIT (A)" for short) is bad in law and on facts and hence liable to bequashed.

Ground No. 2:

On the facts and in the circumstances of the case and in law, the learned Additional Director of Income Tax (International Taxation), Range 2, New Delhi (hereinafter referred to as "AO" for short) has grossly erred by making a reference to the learned Transfer Pricing Officer (hereinafter referred to as "TPO" for short) in contravention to the CBDT's Instruction No. 3 of 2003, dated May 20, 2003. Further, the learned CIT(A) has erred by confirming the reference made by the learned AO.

Ground No.3:

On the facts and in the circumstances of the case and in law, both the learned AO/learned TPO and learned CIT(A) have erred:

(i) by rejecting the comparables selected by the Appellant on the basis of additionalarbitrary filters;

(ii) by comparingthe Appellant with companies which have an entirely differentfunctional and risk profile;

(iii) by selecting the comparables which are not passing the filters adopted by thelearned TPO himself;

(iv) by not rectifying the arithmetical and other errors in computation of Net profitmargin of comparables even though the same were brought to the notice of thelearned TPO by the Appellant;

(v) by not apprec