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TMI Blog2020 (10) TMI 1042X X X X Extracts X X X X X X X X Extracts X X X X ..... be done only for the markup charged by Tokhiem UK, whether it is appropriate. We notice that assessee has filed the reasons for charging 5% as markup that is for taking care of administration and fright cost. It is not submitted before us any document relating to prices i.e. whether it is FOB or C IF prices. Since the AE has supplied the assets on cost to cost with a markup of 5% and the Customs has accepted the transaction as reasonable we do not see any reason to disturb the transaction. In the similar situation TPO has treated the ALP as nil without following any method or parameters set out in chapter X of the act, in the case of Lever India Exports Ltd [ 2017 (2) TMI 120 - BOMBAY HIGH COURT ] deleted the impugned addition made by TPO. We are inclined to delete the addition made by the TPO in the present case. Accordingly, the appeal filed by the assessee is accordingly allowed. - Shri Saktijit Dey, JM And Shri S. Rifaur Rahman, AM For the Appellant : Shri Pankaj R. Toprani/Ms. Krypa R. Toprani, ARs For the Respondent : Shri Uodal Raj Singh, DR ORDER PER S. RIFAUR RAHMAN, ACCOUNTANT MEMBER: The present appeal filed by the assessee is against the final order of assessment pass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... factures up to 6 hoze fuel dispensers. It manufactures these dispensers using both indigenous raw materials and imported materials from third-party vendors as well as from associated enterprise. During this year assessee purchased fixed assets of ₹ 23,20,989/ from its AE Tokheim UK Ltd. Assessee submitted details of international transactions reported for this assessment year in which assessee has declared the details of fixed assets purchases and method adopted for TP analysis declared as other method . At the time of assessment, TPO asked the assessee to produce relevant details of such purchases and justify ALP of the transaction. The assessee produced Bill of purchase from its AE and also bills of corresponding purchase made by its AE. The copy of the bills are part of TP order. TPO observed that the AE has raised bills of Pulser Test Rig and Metre on assessee while corresponding bill raised by E.P Engineering Co Ltd on its AE UK Ltd. He observed that it shows various items that too in quantity ranging from 30 to 1500. The items mentioned in both the bills are not same and therefore it is not accepted as a benchmark for comparing price charged by AE. Further he observed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion between the invoices for raw materials being converted into fixed assets is not documented in a manner whereby the contention of the assessee can be sustained. Therefore, it sustained the treatment of ALP made by the TPO. 8. Aggrieved with the above order, assessee is in appeal before us objecting to the adjustment made by the TPO and the same was sustained by DRP. At the time of hearing Ld AR brought to notice details of the workings submitted before DRP and brought to notice details of invoice raised by its AE along with copies of invoices raised by the different suppliers to its AE which is part of paper book submitted before us. He submitted that TPO treated the ALP Adjustment as nil. He objected to the treatment of ALP adjustment without applying any method as specified in the income tax rules. He submitted that TPO cannot make ALP adjustment without following any method, for the proposition he relied in the case law DCIT versus C DOT Alcatel Lucent Research Centre Private Limited (2016) 66 taxman.com 281 (Delhi tribunal) and CIT versus Lever India Exports Ltd (2017) 78 taxman.com 88 (Bombay). 9. Further, he submitted that assessee has imported these rigs and meter and cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ansaction as international transaction. In our considered view there is supporting documents available for the cost of fixed assets supplied by its AE. If there is missing document, it is only for the markup charged by AE. Even though assessee has declared that it has followed other method, in fact not followed any method to arrive at the ALP. In our considered view, TPO should adopted one of the method prescribed in the income tax rules before rejecting the method adopted by the assessee and treating the ALP as nil. 12. The benchmarking has to be done only for the markup charged by Tokhiem UK, whether it is appropriate. We notice that assessee has filed the reasons for charging 5% as markup that is for taking care of administration and fright cost. It is not submitted before us any document relating to prices i.e. whether it is FOB or C IF prices. Since the AE has supplied the assets on cost to cost with a markup of 5% and the Customs has accepted the transaction as reasonable we do not see any reason to disturb the transaction. 12.1 We notice that in the similar situation TPO has treated the ALP as nil without following any method or parameters set out in chapter X of the act, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Accordingly, the appeal filed by the assessee is accordingly allowed. 14. It is pertinent to mention here that this order is pronounced after a period of 90 days from the date of conclusion of the hearing. In this regard, we place reliance on the decision of co-ordinate bench of this Tribunal in the case of JSW Ltd in ITA Nos. 6264 6103/Mum/2018 dated 14.5.2020, wherein this issue has been addressed in detail allowing time to pronounce the order beyond 90 days from the date of conclusion of hearing by excluding the days for which the lockdown announced by the Government was in force. The relevant observations of this tribunal in the said binding precedent are as under:- 7. However, before we part with the matter, we must deal with one procedural issue as well. While hearing of these appeals was concluded on 7th January 2020, this order thereon is being pronounced today on 14th day of May, 2020, much after the expiry of 90 days from the date of conclusion of hearing. We are also alive to the fact that rule 34(5) of the Income Tax Appellate Tribunal Rules 1963, which deals with pronouncement of orders, provides as follows: (5) The pronouncement may be in any of the following manners ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On 24th March, 2020, Hon ble Prime Minister of India took the bold step of imposing a nationwide lockdown, for 21 days, to prevent the spread of Covid 19 epidemic, and this lockdown was extended from time to time. As a matter of fact, even before this formal nationwide lockdown, the functioning of the Income Tax Appellate Tribunal at Mumbai was severely restricted on account of lockdown by the Maharashtra Government, and on account of strict enforcement of health advisories with a view of checking spread of Covid 19. The epidemic situation in Mumbai being grave, there was not much of a relaxation in subsequent lockdowns also. In any case, there was unprecedented disruption of judicial wok all over the country. As a matter of fact, it has been such an unprecedented situation, causing disruption in the functioning of judicial machinery, that Hon ble Supreme Court of India, in an unprecedented order in the history of India and vide order dated 6.5.2020 read with order dated 23.3.2020, extended the limitation to exclude not only this lockdown period but also a few more days prior to, and after, the lockdown by observing that In case the limitation has expired after 15.03.2020 then the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter, notified under the Disaster Management Act 2005, is causing unprecedented disruption in the functioning of our justice delivery system. Undoubtedly, in the case of Otters Club Vs DIT [(2017) 392 ITR 244 (Bom)], Hon ble Bombay High Court did not approve an order being passed by the Tribunal beyond a period of 90 days, but then in the present situation Hon ble Bombay High Court itself has, vide judgment dated 15th April 2020, held that directed while calculating the time for disposal of matters made time- bound by this Court, the period for which the order dated 26th March 2020 continues to operate shall be added and time shall stand extended accordingly . The extraordinary steps taken suomotu by Hon ble jurisdictional High Court and Hon ble Supreme Court also indicate that this period of lockdown cannot be treated as an ordinary period during which the normal time limits are to remain in force. In our considered view, even without the words ordinarily , in the light of the above analysis of the legal position, the period during which lockout was in force is to excluded for the purpose of time limits set out in rule 34(5) of the Appellate Tribunal Rules, 1963. Viewed thus, the e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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