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TMI Blog2024 (12) TMI 482X X X X Extracts X X X X X X X X Extracts X X X X ..... ature of functions performed, asset employed and risk assumed by the assessee, for both Korean and non-Korean transactions; and being of similar nature, the same approach may be carried out by the TPO/AO while computing the ALP Thus, we are inclined to set aside the issue regarding adjustment made by the TPO in respect of international transactions of the assessee with non-Korean AEs (not covered by the MAP) which is restored back to the file of the TPO for consideration as to whether the international transactions of the assessee with non-Korean AEs are similar in the nature as contented by the assessee and if it is found to be correct, then the TPO may consider the same treatment be given to the transaction as adopted by MAP (supra) in the case of Korean AE s. And the TPO after giving proper opportunity to assessee pass order on the limited issue in accordance to law. Appeal filed by the assessee is allowed for statistical purposes. - SHRI ABY T. VARKEY, JUDICIAL MEMBER AND SHRI AMITABH SHUKLA, ACCOUNTANT MEMBER For the Appellant: Shri Vikaram Vijayaraghavan, Advocate For the Respondent: Shri A. Sasikumar, CIT ORDER PER ABY T. VARKEY, JM: This is an appeal preferred by the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... W 3,051,208,369 for the fiscal year 2012 and KRW 6,611,295,991 for the fiscal year 2013. (The agreement reached between the CBDT and the NTS would not serve as precedent for any other assessment year of this taxpayer.) 3. According to the Ld.AR, the assessee as per Rule 44G(6) of the Rules communicated assessee s acceptance of the resolution in writing to the CA in India and consequently, the AO has given effect to the order dated 29.06.2022 by holding as under: Adjustments made towards international transactions with Korean AE s Adjustment not covered under MAP Total transfer pricing adjustment after MAP resolution Relief TPO As per agreement 95,50,73,779 26,37,74,45 10,86,92,928 37,24,67,380 69,12,99,327 4. There was a relief provided to the assessee as per MAP resolution, an order giving effect passed on 29.06.2022 and assessed income modified accordingly: Assessed Income as per order dt. 03.09.2019 Rs. 75,34,96,920/- Less: Relief given as per MAP resolution Rs. 69,12,99,327/- Assessed Income as per order dt. 29.06.2022 Rs. 6,21,97,593/- 4. And as required by the statute, pursuant to the receipt of the MAP resolution, the assessee filed letter before this Tribunal withdrawing th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... justment made by the TPO is covered by the MAP resolution (supra). The balance international transactions with non-Korean AEs worked out to Rs. 43,10,66,281/- which is only 10.22% of the total adjustment made by the TPO. Therefore, the plea of the assessee is that similar methodology adopted for Korean transactions under MAP resolution may be made for the balance international transactions with non-Korean AEs, since there is a similarity in nature of functions performed, asset employed and risk assumed by the assessee, for both Korean and non-Korean transactions; and being of similar nature, the same approach may be carried out by the TPO/AO while computing the ALP. In order to buttress such contention, the Ld.AR has cited two decisions of this Tribunal as well as Bangalore Tribunal, wherein, the Tribunal held as under: Grundfos Pumps India Private Limited Vs DCIT (IT(TP)A No.92/Chny/2019-AY 2015- 16): 4.5 Upon careful consideration of factual matrix, it could be seen that the assessee has paid aggregate administrative fees of Rs. 1003.58 Lacs to Danish Entity as well as Singapore Entity. The substantial fees of Rs.884.44 Lacs has been paid to Danish entity which has been settled u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted hereunder- 3.6 We have gone through the arguments made by both the sides and also the material placed before us for our consideration. It is noted that letter dated 9th April 2015 in Fno. 480/13/2010-FTD-1 has been issued in the case of the assessee company under MAP proceedings for A.Y.2006-07 to 2010-111 by the DCIT (OSD), APA-I on behalf of the Foreign Tax and Tax Research Division -1, Central Board of Direct Taxes, New Delhi wherein it has been confirmed that for A.Y.2006-07, for US related transactions, the margin has been determined at 14.38% as against margin of 21.58%, as was determined by the Transfer pricing officer (TPO). It has been further clarified by way of note in the said letter that apportionment between 'US' and 'non-US' ALP and TP adjustment had been margined out by the APA section (of FT and TR Division) on the basis of 'US' and 'non-US' revenue. It is further noted from the perusal of the annual accounts of the assessee company that aggregate turnover has been shown at Rs. 47,30,521/-, and no distinction has been made between the 'US' and 'non-US' transactions, Similarly in the orders passed by the lower aut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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