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TMI Blog2019 (5) TMI 308X X X X Extracts X X X X X X X X Extracts X X X X ..... and a report on that aspect is received, the ITAT s observations in the impugned order, particularly the ones quoted above, or any other observation like them which tend to indicate finality, shall in no way be treated as conclusive of the merits. All rights and contentions of the parties are accordingly kept open. The concerned Bench of the ITAT dealing with the final merits shall be uninfluenced by the said observations. - W.P.(C) 4467/2019 & CM APPL.19840/2019 - - - Dated:- 29-4-2019 - MR. S. RAVINDRA BHAT AND MR. PRATEEK JALAN JJ. Petitioner Through: Mr.Deepak Chopra, Mr.Harpreet Singh Ajmani Mr.Manasvini Bajpai, Advocates Respondents Through: Mr.Ajit Sharma, Sr.Std.Counsel with Mr.Adeeba Majahid, Jr.Std. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the overall facts and circumstances and decide whether AMP expenses required in the present case involve international transaction, if so, to what extent. 3. By the impugned order, passed pursuant to the remit by this Court, the ITAT noticed certain facts and discussed certain relative merits observing as follows: 22. On the aspect of quantitative filters adopted by the assessee are with related to the payments. In the agreement entered into by the assessee the payment terms are payment of specified percentage over the net service revenue. However, the assessee adopted a filter of payment terms of percentage of gross sales. There is no such condition in any of the agreement entered into by the assessee with both the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arability analysis unjustified and devoid of any reasoning. xxxx xxxx xxxx xxxx 27. As the Honourable High court has directed ITAT to determine the ALP of the Royalty ( Trademark License fees) payment and only comparable was stated to be payments by Forward Industries Inc to Motorola inc, and further as assessee did not provide any details about the agreement between Motorola and forward incorporation, we are dutybound to make our own research on the issue. 28. We looked at the functional profile of the Forward Industries inc from (yahoo. Finance. Co) which shows that Forward Industries, Inc., together with its subsidiaries, designs, markets, and distributes carry and protective solutions primarily for ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, it was requested that if the issues remanded to the learned transfer-pricing officer then similar direction to both the parties may be given for all those years and all those appeals may be disposed of with respect to the above ground based on the above limited remand. Therefore, at the request of the parties we also agree to give similar directions for all these years. 34. Therefore, in view of a) the inadequate facts about the product comparability for technology for which trademark fees is paid as Royalty b) Absence of availability of agreement between two foreign parties, as well as terms, economic indicators, risk etc c) No adjustment on account of geographical difference between two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e it is found that CUP is not the correct method in absence of availability of the comparable data. After that on 03/06/2019, the matter is posted for hearing before the coordinate bench. Interim order pronounced in the open court on 25/03/2019. 4. The assessee is aggrieved and contends that though characterized as an interim order and not conclusive of the merits, yet, the finality precludes the assessee/petitioner from urging the grounds with respect to the precise issues that were subject to remand and for which the ITAT felt the need fails to make a further remand and set up inquiry by the TPO. 5. This Court is of the opinion that till the remand directed by the ITAT is worked out and a report on that aspect is recei ..... X X X X Extracts X X X X X X X X Extracts X X X X
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