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TMI Blog2024 (10) TMI 928X X X X Extracts X X X X X X X X Extracts X X X X ..... ile of the AO/TPO for fresh consideration on similar lines. Appeal filed by the assessee is partly allowed for statistical purposes - Shri M. Balaganesh, Accountant Member And Shri Yogesh Kumar U.S., Judicial Member For the Appellant : Sh. Vishal Kalra And Sh. Ankit Sahani, Advs And Mr. Yishu Goel, AR For the Respondent : Sh. Rajesh Kumar CIT-(DR) ORDER PER YOGESH KUMAR U.S., JM: The present appeal and the Stay Application have been preferred by the Assessee for assessment year 2017-18 aggrieved by the final assessment order passed u/s 143(3) read with Section 144C (3) read with Section 144B of the Income Tax Act ( Act for short) dated 26/02/2022 by (Income Tax Department) National Faceless Appeal Centre (NFAC), Delhi [ Ld. CIT (A) , for short]. 2. Grounds taken in this appeal are as under: 1. That on the facts and circumstances of the case and in law, the AO/DRP/TPO have erred in assessing the total income of the Appellant at INR 11,98,34,09,834 against the returned income of INR 10,32,25,22,480 making a TP adjustment of INR 1,66,08,87,354. 2. That on the facts and circumstances of the case and in law, the AO ought to have considered the arm's length price of royalty payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... post certain economic adjustments based on surmises and conjectures de hors the fact that in the comparable agreement selected by TPO, the royalty rate was 3% 6. That on the facts and circumstances of the case and in law, the AO/ TPO has erred in making protective adjustment being against the mandate of law and without any legal basis, by 6.1. misinterpreting the benefits received by the Appellant under the Technology Transfer Agreements and further disregarding the business model and key value drivers of the Appellant in conducing that the increase in advertisement spend and expansion in dealers network is the real reason for increase in sales of the Appellant 6.2. misinterpreting the disclosures made in the Annual Report of the Appellant and erroneously alleging that the Appellant is engaged in R D activities, import substitution and that the AE does not have patent registered in relation to the licensed products 7. That on the facts and circumstances of the case and in law, the AD has erred in not granting credit of tax deducted at source amounting to INR 590.572 8. That on the facts and circumstances of the case and in law, the Ld. AO has grossly erred in computing higher tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TPO, vide order dt. 17.01.2022, has confirmed the original TP adjustment amount of Rs. 1,66,08,87,354/-, The TPO has requested the AO to take appropriate action with regard to the directions given by the DRP to the AO after taking an overall view and understanding of the facts and circumstances of the case. The assessment order came to be passed on 26/02/2022 by the A.O. u/s 143(3) r.w.s. 144C(3) r.w.s 144B of the Act. Aggrieved by the assessment order dated 26/02/2022, the Assessee preferred the present appeal on the grounds mentioned above. 5. Ground No. 1 is general in nature which requires no adjudication. Ground No. 2 3 as the issue involved thereon pertaining to payment of royalty and the Assessee has entered into Mutual Agreement Procedure (MAP) with respect to the transactions with UK entities. Accordingly, Ground No. 2 3 of the Assessee are dismissed as withdrawn. In Ground No. 4 the Assessee has also not pressed to the extent of adjustment made with respect to royalty made to AE in the UK. The issue remaining to be decided in Ground No. 4 in so far as adjustment with respect to non UK based entity in respect of Compactor and Skid steer. The Ld. Counsel for the Assessee su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... royalty adjustment should be made with non- UK entities and alternatively has also prayed for application for APA/MPA signed for assessment year 2018-19 to 2022-23 for the year under consideration as well. Admittedly, for assessment year 2017-18 is not covered within APA period. 8. The similar issue came for consideration by the Coordinate Bench of the Tribunal for the assessment year 2013-14 in ITA No. 7200/Del/2017 vide order dated 31/05/2019, wherein the Tribunal has remitted the matter to the file of the TPO to determine arm s length price of international transaction entered into by the Assessee with associated enterprise in Germany in following manners: 3. We have perused submissions advanced by both sides in light of records placed before us. We have perused resolution of dispute under MAP with United Kingdom in case of assessee for years under consideration. 3.1 In the light of aforestated understanding between revenue and Competent Authority of UK, assessee is allowed to withdraw its appeals for A.Y. 2009-10, 2010-11, 2011-12 and 2013-14 wherein the issues raised are in respect of transaction that stands fully covered by MAP resolution. 3.2. In respect of assessment year ..... X X X X Extracts X X X X X X X X Extracts X X X X
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