in my opinion, does not merit acceptance. It is no doubt true that this Court has set aside the earlier assessment made by the Assessing Officer based on the TPO’s findings who selected comparables in its order, dated 26.10.2010. However, it is pertinent to note that the order, dated 15.11.2011 passed by this Court without going into the merits of issues involved in the writ petitions. In para 12, the learned Judge has specifically stated that “…… without expressing any opinion on the merits, I feel that it is otherwise a fit case wherein, this Court should set aside the order ….” Therefore, when the earlier draft assessment order was not dealt with on merits, but set aside only on the limited ground of violation of principles of natural justice, I am of the considered view that there is absolutely nothing wrong in adopting the comparables selected by the TPO in erstwhile order, dated 26.10.2010 by the first respondent in determining the arm’s length price of the international transaction of the petitioner while passing the impugned order. If at all the petitioner is aggrieved in such adoption, it is needless to state that the petitioner is always at liberty to challenge the impugned order in the manner known to law as the impugned order passed by the first respondent is not final and as against the said order, under the statute, an efficacious remedy of appeal is available to the petitioner. In fact, the first respondent has not only considered the comparables selected by the TPO in erstwhile draft assessment, but he has also considered the eight comparables newly identified by the petitioner using information collected from responses to letters issued under Section 133(6) and thereby determined the arm’s length revenue at Rs.57,05,68,292/- which is considerably lower than the erstwhile draft assessment, wherein, it was determined at Rs.110.27 crores. Hence, the contention that the first respondent has reiterated the earlier findings, cannot be accepted. Therefore, it seems that the petitioner is not aggrieved of the impugned order passed by the first respondent on the premise that it was reiterated on earlier findings without making de novo assessment, but for the order that was not passed by the first respondent in favour of the petitioner by their expectation.
