9911796707
TMI Blog2020 (9) TMI 1298X X X X Extracts X X X X X X X X Extracts X X X X ..... TDS - AO shall give due opportunity of being heard to the assessee and decide the issue as per fact and law. Ground raised by the assessee is allowed for statistical purposes. - SHRI R.K. PANDA, ACCOUNTANT MEMBER AND MS SUCHITRA KAMBLE, JUDICIAL MEMBER For the Assessee : Shri Nageshwar Rao, Advocate Ms Sherry Goyal, Advocate For the Revenue : Shri Anupam Kant Garg, CIT, DR ORDER PER R.K. PANDA, AM: This appeal filed by the assessee is directed against the order dated 24th October, 2017 passed by the AO u/s 143(3) r.w.s 144C of the IT Act, 1961. 2. The grounds raised by the assessee are as under:- On the facts and circumstances of the case and in law, the learned AO has erred in passing the assessment order under section 143(3) read with section 144C of the Income- tax Act, 1961 ( the Act ) after considering the adjustments proposed by the learned TPO in his order passed under section 92CA(3) of the Act and subsequently confirmed by the Hon ble DRP. Each of the ground referred is separate, which may kindly be considered independent of each other. Transfer Pricing Grounds On the facts and circumstances of the case and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DS credit only to the extent of INR 14,705,387 as against TDS credit of INR 18,333,275 claimed by the Appellant in its return of income. 10. The learned AO has erred in levying interest, which is not payable, of INR 7,224,965 under section 234B of the Act. The Appellant craves leave to add, amend, vary, omit or substitute any of the aforesaid grounds of appeal at any time before or at the time of hearing of the appeal. The Appellant prays for appropriate relief based on the said grounds of appeal and the facts and circumstances of the case. 3. Facts of the case, in brief, are that the assessee is a company engaged in providing consulting services in the area of human capital, employee benefits and insurance. It filed its return of income declaring the total income at Rs.1,12,69,100/-. Since the assessee has entered into certain international transaction, the AO referred the matter to the TPO for determination of the ALP of the international transaction entered into by the assessee. The TPO during the course of TP assessment proceedings, noted that the assessee has rendered such services to its AE for an amount of Rs.29,25,35,886/- and determined the ALP using ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8,16,260/-. 5. The ld. Counsel for the assessee, drew the attention of the Bench to page 38 of the appeal set which is the order passed u/s 92CA(3) of the Act and submitted that the TPO, following the stand taken in the previous years, i.e., AYs 2010-11, 2011-12 and 2012-13 has rejected the economic analysis disregarding the CUP as the most appropriate method and applied TNMM. He submitted that the Tribunal in assessee s own case for A.Y. 2011-12, vide ITA No.1710/Del/2016, order dated 2nd April, 2019, has held CUP as the most appropriate method. He submitted that for A.Y. 2012-13, no TP assessment was made for which no appeal has been filed. He submitted that once the CUP is held as the most appropriate method in the light of the decision of the Tribunal in assessee s own case for A.Y. 2011-12, the other grounds will become academic in nature. 6. The ld. DR, on the other hand, heavily relied on the order of the TPO/DRP. Referring to page 8 of the order of the TPO, the ld. DR drew the attention of the Bench to the following and submitted that the TPO has given justifiable reason as to why CUP method cannot be applied as the most appropriate method:- However, the undersig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... REs whereas when the services are provided to AEs, the risk is that of the AEs whose client has been serviced. 20. We do not find any force in the contention that the evidences are not brought on record. The invoices raised to AEs and non AEs are exhibited in the paper book. Whether the same person is providing service to both the AEs and non AEs is irrelevant, so as long as the evidences of services provided are available. The services are provided by different set of personnel, having different qualification and it would not be justifiable to ask for invoices of the same person who has provided service to AEs and also to non AEs. 21. Moreover, considering the nature of services provided by the assessee, we do not find the geographical locations relevant because the consulting services provided by the assessee would remain the same whether the service receiver is located in 'X' country or 'Y' country as long as service provider is in India. Our view is fortified by the fact that the price charged to non AEs, [irrespective of geographical location] is comparable to the price that is charged to Indian entities. Moreover, rate per hour for consultant, once ..... X X X X Extracts X X X X X X X X Extracts X X X X
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