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TMI Blog2018 (2) TMI 1088X X X X Extracts X X X X X X X X Extracts X X X X ..... hort 'the Act') qua the assessment year 2013-14 on the grounds inter alia that :- "Based on the facts and circumstances of the case, the Appellant respectfully submits that: 1. This ground is general in nature 1.1. The Learned Assistant Commissioner of Income Tax, Circle-9(2), New Delhi ("the Assessing Officer" or the Ld. AO") pursuant to directions of Hon'ble Dispute Resolution Panel ("Hon'ble DRP"), has erred on facts and circumstances of the case and in law in completing the present assessment at an income of "Nil" post adjustment of the brought forward losses against the returned income of Nil. The assessed income is Nil and is bad in law. 1.2. That, the Learned Deputy Commissioner of Income Tax, Transfer Pricing Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clear that till date/ till the date of pronouncement of the order passed by AO no appeal has been filed by the department before the Hon'ble Supreme Court and the time limit for filing the said appeal has lapsed. The said action of the Hon'ble DRP/Ld. AO has caused undue hardship to the Appellant. 4.3. Hon'ble DRP erred in not considering the decision of Hon'ble High Court and Hon'ble Income Tax Appellate Tribunal in the Appellant's own case for earlier years i.e. AY 2010-11 and AY 2011-12 by rejecting the TNMM and selecting CUP method as the Most Appropriate Method ("MAM") to benchmark the international transaction for "payment of royalty". 5. Rejection of combined transaction approach adopted by Appellant 5. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ived by the appellant in lieu of payment of royalty, and based on a preoccupied mind reached at an inappropriate conclusion that the arm's length value of the transaction pertaining to payment of royalty should be Nil. 8.2. The Ld. TPOI Hon'ble DRP erred in misinterpreting / misconstrued the facts with respect to the international transaction relating to payment of royalty on the basis of incorrect presumptions and accordingly made an adjustment of INR 7,65,31,778 to the total income of the Assessee. 9. Full credit of taxes claimed in return of income not provided 9.1. On the facts and in the circumstances of the case, the Ld. AO has erred in not giving full credit of taxes paid as claimed in return of income. 10. Penalty pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ricing study in order to benchmark its international transaction used Transactional Net Margin Method (TNMM) as the Most Appropriate Method (MAM) and found its international transactions at arm's length. The TPO has disputed only one international transaction of Rs. 7,65,31,778/- entered into by the taxpayer with its AE qua payment of royalty. The ld. TPO rejected the TNMM used by the taxpayer for benchmarking the international transactions rather applied CUP method and proceeded to conclude that, "In the similar facts and circumstances of the situation, no third party would be willing to part with any amount to a third party or would have spent any amount in arrangement of the above stated purported services, arm's length price of these se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arch/April 2017), there may be time for the Department to file the SLP in this matter. In view of these facts and circumstances of the case, the directions of DRP are as under: (a) If the Department has filed the SLP or intends to file the SLP in this case on this issue, the order of the TPO/AO is here by confirmed as the matter will be sub-judice. (b) If Department has not filed the SLP or do not intend to file the SLP in this case on this issue, the TPO/AO may follow the decision of jurisdictional High Court in the assessee's own case for AY 2010-11 and 2011-12." 7. Undisputedly, the coordinate Bench of the Tribunal in assessee's own case in ITA No.784/Del/2016 for AY 2011-12 order dated 25.07.2016 deleted the adjustment made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... casion to take a different view of the matter for this year. In any event, one can discard the TNMM and proceed to adopt CUP only when a comparable product or service is available. When no such comparable is available, as in this case, there cannot be any occasion to resort to CUP, and, as such, in such a situation, CUP cannot be accepted as MAM over the TNMM. The very approach underlying these ALP adjustments is not fallacious and legally unsustainable. We, therefore, direct the Assessing Officer to delete ALP in respect of royalty and management fees." 8. Furthermore, order passed by the coordinate Bench of the Tribunal in assessee's own case for AY 2011-12 has been confirmed by the Hon'ble High Court of Delhi in ITA 123/2017 ORDER date ..... X X X X Extracts X X X X X X X X Extracts X X X X
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