9911796707
TMI Blog2019 (11) TMI 134X X X X Extracts X X X X X X X X Extracts X X X X ..... nly net revenue is to be considered while computing ALP and the so called claimed passed through costs are to be reduced from gross revenue to arrive at net revenue which is to be considered for determining ALP, the onus is on the assessee to produce relevant evidences to support its contentions. The said onus never get discharged. The next attempt is made in this MA to show that tribunal order dated 16.06.2017 was passed beyond 90 days and hence this order needed to be recalled. It is admitted by the assessee that the aforesaid appellate order dated 16.06.2017 passed by the tribunal was received on 25.07.2017. Merely because the appellate order dated 16.06.2017 passed by the tribunal was received by assessee on 25.07.2017 , a presumption is drawn by the assessee of its own that the appellate order was passed by the tribunal beyond 90 days , which later rightly stood corrected by assessee of its own during the course of hearing in MA when confronted with factual matrix of the case by not pressing too far this plea during the course of hearing before the Bench of this MA. It is also observed that further pleas are raised by assessee in this MA applications on merits of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wriggle out of the well reasoned tribunal order dated 16.06.2017 wherein the said order could be recalled . Before we proceed further, it is very important and crucial at this stage to refer to the conduct of the assessee itself in dealing with various authorities during the course of assessment/appellate proceedings. The ay under consideration is ay: 2009-10 for which previous year was 2008-09. The assessee was called upon to file various agreements it entered into with its clients during the year under consideration which was very crucial to adjudicate dispute between rival parties. The TPO concluded its order on 29.01.2013 wherein additions were proposed to arms length price by TPO wrt international transactions entered into by assessee with its AE. The assessee has chosen not to file agreements before authorities below as well before tribunal for the relevant period despite being specifically asked by the tribunal during hearings before it. The agreement filed before the tribunal was dated 24.10.2013 which related to transactions entered into during ay: 2014-15 and had no relevance to adjudicate the appeal/issues which were before the authorities including tribunal. The conduct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the manner it was filed), thirdly agreement with media houses for purchase of advertisement slots , fourthly agreements with various professionals , models , writers , directors , location hire, studio hire , props, acquisition etc. for development and designing of advertisement for clients such as film, art work etc. At the adjourned hearing , the assessee filed compilation / paper book page 730-758 consisting of few agreements of type second‟ as above with clients for release of advertisements and that too without submitting actual purchase orders released by clients in its favours. Incidentally none of these agreement so filed before the Bench were for the relevant period under consideration as were required by the Bench and were pertaining to the period subsequent to the relevant previous year. The assessee has categorically stated that it does not have any agreement with clients for relevant period under instant appeal while facts as emanating from TPSR(page 66/pb) is that the assessee duly entered into agreements with its clients for media planning and media buying.Our attention was drawn to these agreements which were filed as paper book/page 730-758. The assessee did ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee duly entered into agreements with its clients for media planning and media buying.. The assessee did not file its agreements with various agencies for booking/ purchasing advertisement slots despite being asked by the Bench nor it filed agreement with clients for media planning as well agreements for execution of media planning leading to development of advertisement were not filed. The purchase orders for release of advertisement issued by clients are also not filed. Sufficient opportunities had been granted to the assessee by all authorities including us but the assessee has chosen not to come forward with relevant evidences to support its own contentions. The Bench even gave further chance to the assessee to come clean and asked the assessee to given break up of gross revenue and cost of billings but again the assessee in reply dated 31-03-2017 has chosen not to give specific replies of break-up of gross revenue and cost of billings and have given evasive replies concerning some other break-up of legal and professional expenses‟ which has no relevance for adjudicating this appeal. Thus , it is evident that it is a wilful strategy of the assessee not to co-ope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enue is to be considered while computing ALP and the so called claimed passed through costs are to be reduced from gross revenue to arrive at net revenue which is to be considered for determining ALP, the onus is on the assessee to produce relevant evidences to support its contentions. The said onus never get discharged. The next attempt is made in this MA to show that tribunal order dated 16.06.2017 was passed beyond 90 days and hence this order needed to be recalled. It is admitted by the assessee that the aforesaid appellate order dated 16.06.2017 passed by the tribunal was received on 25.07.2017. The assessee cited decision of Hon‟ble Bombay High Court in the case of Shivsagar Veg. Restaurant v. ACIT (2009) 317 ITR 433 and decision in the case of Otters Club v.DIT (E) ( WP no. 1889 of 2016). The decision of tribunal in MA in the case of Crompton Greaves Limited v. CIT in MA No. 151/Mum/2016 arising out of appeal in ITA no. 1994/Mum/2013, dated 11.05.2018 was also cited at the time of hearing of this MA. On being confronted , the learned counsel for the assessee immediately accepted that the date of hearing of appeal was 20.03.2017 and date of pronounceme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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