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TMI Blog2013 (10) TMI 293X X X X Extracts X X X X X X X X Extracts X X X X ..... ent-assessee and its Associated Enterprises and on that basis, the Revenue sought to justify the inclusion of consultancy charges paid to M/s. McKinsey & Co. as an international transaction. The Tribunal held that there was no material to support the conclusion that there was an arrangement between the respondent-assessee and its Associated Enterprises and the entire case is based on mere presumption. Therefore, the Tribunal concluded that the order of the Transfer Pricing Officer (TPO) is without any evidence. The Tribunal further held that even if any benefit accrued to the Associated Enterprises, it was merely incidental to the consultancy obtained by the respondent-assessee from M/s. Mc Kinsey & Co. Besides, the Tribunal held that even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our consideration. "(a) Whether on the facts and circumstances of the case and in law, the Tribunal did not err in directing the AO to allow set off the Section 10A unit losses against its business profit ignoring the specific provision of sub -section (6) of section 10A which provides for set off of such losses only after the expiry of the last of the relevant assessment years ? (b) Whether on the facts and circumstances of the case and in law, the Tribunal did not err in directing the AO to allow set off the Section 10A unit losses against its business profits even though the assessee had not exercised the option under sub-section (8) of Section 10A not to avail the benefit of Section 10A ? (c) Whether on the facts an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cost of consultancy expenses was required to be made ? (f) Whether on the facts and circumstances of the case and in law, the Tribunal did not err in failing to appreciate that as per the provisions of Section 80HHE, profits of any branch, office, warehouse or any other establishment of the assessee situated outside India are to be reduced from 'export turnover of the business' and not from 'total turnover? (g) Whether on the facts and circumstances of the case and in law, the Tribunal did not err in failing to appreciate that the approving authority i.e. Software Technology Park of India (STPI) itself had held that the assessee's three units at Chinchwad, Akruti and Milennium Business Park as 'expansion of the existing units' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal No.2177 of 2012 rendered on 1st July 2011. In view of the above, we see no reason to entertain questions (a) and (b). 3. So far as question (c) is concerned, counsel for the parties state that in view of the amendment to Section 92B(1) of the Income Tax Act, 1961 ('Act' for short) by Finance Act, 2012 with retrospective effect from 1st April 2002, the question as framed may be restored to the file of the Tribunal for fresh decision in light on the amendment. Accordingly, this issue is restored to the file of the Tribunal for fresh decision on merits. 4. So far as question (d) is concerned, the dispute relates to allocation of consultancy charges paid by the respondent-assessee to M/s. McKinsey Co. on the ground that there was an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nchwad, Ackruti and Millennium. The Revenue denied the benefit of Section 10A of the said Act in respect of three units on the basis of the approval letter issued by Software Technology Park in India that the three units are to be considered as part of the existing unit. The Tribunal has recorded a finding of fact that all the three units fulfil the conditions prescribed under Section 10A(2) of the Act. The three units were separate and independent production units and the same cannot treated as mere expansion of the existing units. Thus, the respondent-assessee is entitled to its claim for deduction under Section 10A of the Act. In these circumstances, since the decision of the Tribunal is based on finding of fact, we see no reason to ente ..... X X X X Extracts X X X X X X X X Extracts X X X X
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