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TMI Blog2020 (11) TMI 740X X X X Extracts X X X X X X X X Extracts X X X X ..... ised in the present ground has been made by the Assessing Officer, the ground raised by the assessee has become redundant, hence dismissed. Addition on account of adjustment of unutilized CENVAT credit to closing stock by invoking the provision of Section 145A - HELD THAT:- Remitted the matter back to the file of Ld. AO for redoing the computation in accordance with order for AY 2001-02. Addition on the basis of Annual Information Return (AIR) - AO on the basis of information available on record found that the assessee has not offered income - HELD THAT:- Aforesaid claim of the assessee has not at all been enquired into by the Assessing Officer by making enquiry with the concerned parties. Further, assessee s contention that during the year under consideration invoices of 51,050/- was raised on Eastern Electrolysers Ltd. has not at all been enquired into by the Assessing Officer. When the assessee has furnished evidence to reconcile the difference and claims that there is no such income was earned by it, the Assessing Officer was duty bound to make proper enquiry to ascertain the correctness of assessee s claim. Without making any enquiry, the Assessing Officer cannot make the addi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessment Year 2009-10. ITA no. 7723/Mum./2012 (Assessee's Appeal for Assessment Year 2008-09) 2. In ground No. 1 to 4, the assessee has challenged additions made of ₹ 4,44,07,733/- on account of transfer pricing adjustment on cost contribution charges paid to the overseas Associated Enterprises (AEs). 3. Briefly stated, the assessee, a resident company, is engaged in the business of manufacturing of various types of process gas compressors including reciprocating compressors. As stated by the Assessing Officer, the assessee also supplies parts and provide services to the oil and gas sectors where its compressors are used. The assessee had entered into a cost contribution agreement with its AE Dressers-Rand Group Inc. USA under which certain services were rendered to the assessee. Towards rendering of such services, the assessee paid an amount of ₹ 4,44,07,733/- during the year to the AE. The Transfer Pricing Officer (TPO) while examining the arm's length nature of such transaction ultimately concluded that the arm's length price (ALP) of such transaction has to be determined as ''Nil''. Accordingly, he made adjustment of the entire amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attention to the relevant observations of the Tribunal. The learned Departmental Representative relied upon by the observations of the TPO and learned DRP. 7. Having considered rival submissions, we find, while considering identical issue in assessee's own case in Assessment Year 2006-07, the Tribunal in ITA No. 8753/Mum/2010, dated 07/09/2011 has accepted the price charged by the assessee to the AEs towards provision of field services after allowing discount to be at arm's length. In this context, we reproduce the observations of the Tribunal hereunder:- 11. The next adjustment of ₹ 4,70,000, on the ground that the assessee ought not to have allowed discount of 10% to AEs, is also equally devoid of any merits. We have noted that the assessee has followed the TNMM for determination of ALP and the Assessing Officer has not even disputed TNMM being most appropriate method on the facts of this case. The question of applying CUP, even if that be so, can only arise when TNMM is rejected. Even under CUP method, it is not necessary that all sales must take at the same price. There can always be variations of prices for the same product or services on valid grounds, such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... round has been made by the Assessing Officer, the ground raised by the assessee has become redundant, hence dismissed. 12. In ground No. 8, the assessee has challenged the addition of ₹ 22,36,615/- on account of adjustment of unutilized CENVAT credit to closing stock by invoking the provision of Section 145A of the Act. 13. The learned counsel for the assessee submitted, identical issue arising in assessee's own case in preceding assessment years has been restored to the Assessing Officer. He submitted, similar view may be taken in the impugned assessment year as well. 14. The learned Departmental Representative agreed with the aforesaid submissions of the assessee. 15. Having considered rival submissions, we find that while deciding identical issue in assessee's own case in AY 2007-08 in ITA No. 5412 and 5435/Mum/2014, dated 10/08/2020, the Tribunal has restored the issue to the Assessing Officer observing as under:- 5.4 As rightly pointed out by Ld. AR, we find that Tribunal in assessee's own case for AY 2006-07, ITA No. 8753/Mum/2010 order dated 07/09/2011 followed its earlier order for AY 2001-02 dated 07/02/2008 and vide para 20, remitted the matter bac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disclosure of income by the assessee and the assessee failed to reconcile the same, addition made was justified. 22. We have considered rival submissions and perused material on record. As could be seen from the facts on record, the disputed addition is on account of difference in income shown as per books of account and income received as per AIR information. However, it is the specific case of the assessee that during the year under consideration, it had no dealings with Century textiles and Industries Pvt. Ltd. and Uttar Gujarat Vij Company Ltd. On perusal of facts on record, we find that aforesaid claim of the assessee has not at all been enquired into by the Assessing Officer by making enquiry with the concerned parties. Further, assessee's contention that during the year under consideration invoices of ₹ 51,050/- was raised on Eastern Electrolysers Ltd. has not at all been enquired into by the Assessing Officer. When the assessee has furnished evidence to reconcile the difference and claims that there is no such income was earned by it, the Assessing Officer was duty bound to make proper enquiry to ascertain the correctness of assessee's claim. Without making a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esult, appeal is partly allowed. ITA no. 1127/Mum./2014 (Assessee's Appeal for A.Y. 2009-10) 29. In ground no. 1 to 4 are identical to ground no. 1 to 4 of ITA no. 7723/Mum/2012. Following our discussions and decision therein, we dismiss these grounds as not pressed. 30. Issue raised in ground no. 5 is identical to the issue raised in ground no. 5 and 6 of ITA No. 7723/Mum/12. Following our discussions and decision therein, we delete the addition of ₹ 10,80,065/-. The balance addition of ₹ 5,38,937/- is sustained as it is covered under MAP proceedings. This ground is partly allowed. 31. Issue raised in ground no. 6 and 7 are identical to ground no. 7 of ITA No. 7723/Mum/2012. Considering the submission of learned counsel for the assessee that the assessee has no grievance as such, as, the Assessing Officer has not made any disallowance in the final assessment order, these grounds are dismissed as not pressed. 32. In ground no. 8, assessee has challenged the addition made of ₹ 2,91,32,770/- on account of adjustment of unutilized CENVAT credit to closing stock. This ground is identical to ground no. 8 of ITA No. 7723/Mum/2012. Following our decision therein ..... X X X X Extracts X X X X X X X X Extracts X X X X
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