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TMI Blog2023 (8) TMI 809X X X X Extracts X X X X X X X X Extracts X X X X ..... our of assessee. Short credit of MAT - Assessee has submitted that he has already filed rectification application before the AO but AO has not acted on it - HELD THAT:- We direct the AO to verify the assessee s claim of short credit of MAT. The AO shall give opportunity to the assessee before deciding the same. - SHRI S.S. GODARA, JUDICIAL MEMBER AND DR. DIPAK P. RIPOTE, ACCOUNTANT MEMBER For the Appellant : Assessee by Shri Nitin Narang AR For the Respondent : Shri Pankaj Kumar DR ORDER PER DR. DIPAK P. RIPOTE, AM: This is an appeal filed by the assessee against the order of the ld.Assistant commissioner of Income Tax, Circle-8, Pune under section 143(3) r.w.s 144C(13) of the Income Tax Act, 1961 dated 30.06.2022. The assessee has raised following grounds of appeal : General Grounds 1. That on the facts and circumstances of the case and in law, the order of assessment framed by the Assistant Commissioner of Income Tax, Circle 8, Pune (hereinafter referred to as Ld. AO ) pursuant to the directions passed by the Hon'ble Dispute Resolution Panel (hereinafter referred to as Hon'ble DRP ) under Section 144C(5) of the Inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... determining the ALP and basis such analysis, holding that the value of the impugned transaction is not at arm's length, while accepting TNMM on aggregate basis for all other transactions. 10. That on the facts and circumstances of the case and in law, the Ld. TPO/ Hon'ble DRP erred in adopting CUP Method and determined the ALP of the impugned transaction without any analysis of comparable uncontrolled transactions ( CUT ), thereby not following the procedure prescribed under the Act and the Rules or any basis for applying such method. 11. The Hon'ble DRP/Ld. TPO/Ld. AO have erred, on facts and in law, in not taking cognizance of the observations made by the Ld. AO in the case of Benteler Automotive (China) Investment Limited ( Benteler China ) for the same year under consideration, wherein contrary view has been upheld that these management services have been provided by Benteler China to the Assessee in India. 12. Without prejudice and notwithstanding the fact that payment of management service fee is to be benchmarked using combined TNMM approach, the Appellant undertook an external CUT search to substantiate the ALP of the international transaction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at assessee has not furnished any evidence regarding the services availed. Aggrieved by the order, the assessee filed appeal before the Dispute Resolution Panel (DRP). The DRP vide its order dated 30.05.2022 held as under: The facts and circumstances discussed above and also the fact that the assessee failed to furnish the details of the costs incurred by the AEs, which should be available with the assessee and constitute the very basis of the fee payable by the assessee as per the agreements, lead to the inescapable conclusion that no services had actually been rendered by the AEs to the assessee, in terms of the Services Agreement. Therefore, no credence can be given to the agreements in question, and the same have to be rejected as self- serving statements. 3.3.12 The other documents furnished by the assessee in this regard are copies of invoices raised by the AEs. However, in view of the peculiar features of the agreement entered into between the assessee and its AE (absence of provision for allowing inspection of records by the assessee) and other facts and circumstances of the case as discussed herein above, these documents also cannot be accepted as conclusive e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (China) Investment Ltd. The ld.AR invited our attention to para 5.4 of the said assessment order which is reproduced here as under: 5.4 In view of the above discussion, it is clear that assessee has provided various managerial services including services such as management support, finance, human resources, facility management etc to Bentler India. Therefore, the payment received by the assessee is taxable in India as Fees for Technical Services. Accordingly, an amount of Rs. 11,52,81,444/- is taxed @ 10% as per Article-12 of the India-China DTAA. I am satisfied that assessee has misreported income to the extent of Rs. 11,52,81,444/-, and hence findings of the penalty proceedings u/s 270A(9)(a) for misrepresentation of facts is being recorded herewith and the penalty proceedings are being initiated along with this final assessment order. Therefore, the ld.AR pleaded that assessee has established receipt of services. Assessee also established that it was benchmarked using TNMM. Once TPO has accepted assessee s TNMM result, TPO cannot take out one single transaction and separately benchmarked. Submission of Ld. Departmental Representative (ld.DR) : 5. The ld.DR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rred in granting short credit of MAT. The assessee has also submitted that assessee has already filed rectification application dated 09.08.2022 before the AO. However, the AO has not acted on it. In these facts and circumstances, we direct the AO to verify the assessee s claim of short credit of MAT. The AO shall give opportunity to the assessee before deciding the same. 8. Ground No. 15 and 16 are also related to interest under section 234B and 234D of the Act. The AO is directed to verify the claim of the assessee and decide the same as per law after giving opportunity to the assessee. Therefore, Ground No. 13, 15 and 16 are allowed for statistical purpose. Ground No. 14: 9. The ground is related to penalty initiated by the AO. The ground is pre-mature and hence dismissed. 9.1 The ground no. 14 of the assessee is dismissed. Ground No. 1: 10. The assessee has claimed that order passed by the DRP is void- ab-initio as no opportunity was provided. However, on perusal of the order of the DRP, it is observed that DRP had provided opportunity to the assessee. The ld. Authorised Representative of the assessee has not made any submission as how DRP has failed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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