TaxTMI 
TaxTMI 
2014 (11) TMI 266
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.... not controverting or even taking cognizance of the ruling pronounced by the Hon'ble Income-tax Appellate Tribunal ('ITAT'), Delhi Bench in the appellant's own case for AY 2008-09 which was submitted before the Ld. DRP during the hearing on August 23, 2013 and rehearing on November 13, 2013 wherein the appellant had received a favourable order deleting the adjustment on account of "alleged excessive" AMP expenses incurred by the appellant; even though the facts of the case has remained unchanged in AY 2009-10 from those in AY 2008-09; 1.2. disregarding the fact that the premium profits earned by the appellant more than compensate the allegedly excessive AMP spends, if any, incurred by it: 1.3. misinterpreting or placing incorrect reliance on the international guidance in relation to the 'marketing intangibles' and 'bright line test' from Organisation for Economic Co-operation and Development ('OECD'), US TP Regulations and Australian Tax Office ('ATO') and relying on several erroneous/factually incorrect and contradictory statements/ observations in the TP order, which are not relevant to the instant case, only in order to justify an ot....
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....n making such payments while passing the order in contrast with the judicial pronouncements in this regard; and 2-4 ignoring that the facts and circumstances of the appellant's case during the year remained unchanged when compared to previous years in which detailed audit and scrutiny was done with regard to the pricing and methodology of this transaction and subsequently no adverse inference drawn. CORPORATE TAX MATTER 3. The Ld. AO has erred in law and on facts and circumstances of the case, in reclassifying certain assets under the Block of "Plant and Machinery" eligible for depreciation @ 15% which were originally classified by the appellant under the Block of "Computers" eligible for depreciation @ 60%. 4. Without prejudice to the above , the Ld. AO has erred in law and on facts and circumstances of the case, in disallowing an amount of INR 0.48 crores towards the depreciation allowance on individual assets so reclassified by calculating depreciation on the original cost of the assets instead of the Written Down Value ('WDV')and without appreciating that depreciation allowance of only INR 0.17 crores has actually been claimed on such assets in the return of....
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....he arguments of the parties before the Bench it was pointed out that since in the assessee's own order the order of the Special Bench has been followed the perception that the said order was not followed presumably based on reporting in the "headnotes" in the published orders may not be the appropriate way to conclude that L.G. Electronics case has been bi-passed in the case of the assessee. In view of the apparent conflict/confusion between the conclusion based on publisher's view of what has been said instead of what has been written in the order we are of the view that reading the order itself should be relied upon. The parties were accordingly required to address the issues and were heard at length. Despite this time was given to the Ld. CIT DR to further supplement his arguments with written submissions if need be for the sake of completeness and place the same on record after mutually exchanging the same with the rejoinder if any sought to be filed on behalf of the assessee. The specific order sheet entry of the said date is reproduced hereunder:- 22nd July 2014 Mr. P.Jain, CIT DR and Mr. Rahul Kr. Mitra CA present. The Ld. AR places reliance on assessee's own order for th....
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....g the complete order and submitted that BMW India Pvt. Ltd. be followed in preference to the Special Bench in L.G. Electronics. The observations in para 5 and 6 of the order appears to completely overlook the fact that the material finding in BMW India Pvt. Ltd. actually considered and followed wherever applicable the principles laid down by the Special bench in L.G. Electronics. Hence the surprising observation in para 6 that "there is no prize for guessing that Special Bench order has more force and binding effect over the Division Bench order on the same issue. This contention raised by the Ld. AR, therefore, fails" appears to be the result of the mistaken submissions which could not have been based on reading the entire order and appears to be based only on a reading of the headnotes. The fact that headnotes can at times be misleading is a well known fact as they are only the reporting done for the convenience of the professionals and it is imperative therefore to read the entire order. Be it as it may, we would not be out of place to sound a caution that hasty conclusions based on arguments advanced on the basis of the headnotes in the reporting of the orders may not be advisa....
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.... concurring with the view taken, we hold that this view does not override the Special Bench. The fact that the distributor remuneration model is distinct is a well accepted fact for which no authority need be cited, however for the sake of addressing lingering doubts if any we refer to the order dated 30.08.2013 in ITA No-6283/Del/2012 in Nokia India Pvt. Ltd., though not in the context of AMP expenses but in the context of allowable expenses of a distributor. In the facts of that case on consideration it was again recognized that a distributor's model of remuneration has peculiar and unique characteristics which are distinct and separate from the remuneration model of a licensed manufacturer. The assessee therein was engaged in providing services in the industry of installation, commissioning and erection of tele-communication equipment, selling (trading) of mobile phones networks and accessories, research & development services to the Nokia Group of company whose claim of expenses based on price protection to its dealers was denied. In the facts of that case the dealers were offered apart from discounts based on the incentives to the distributor on goods sold but also promotional....
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....ome internal audit of stocks lying unsold whose prices have dropped due to competition. The necessary evidences need to be made available to justify the claim especially since discounts and commissions are anyway stated to be made available and paid to the distributors/dealers. Accordingly while admitting fresh evidences filed before us the AO is directed to consider them alongwith the evidence which had been filed before the DRP. We further direct the assessee to place necessary and relevant evidences as brought out above and also find mentioned in the assessment order to justify its claim. Liberty to file fresh evidences before the AO is granted and the AO shall be dutybound to consider the same before the passing of his order. Needless to say that a speaking order in accordance with law after giving the assessee a reasonable opportunity of being heard shall be passed by the AO." 3.3. Hence though it may appear to be intellectually sound to precede or follow up ones main argument with judicial decisions that purport to support or explain the main arguments one needs always to keep in mind the well recognized and accepted proposition that a judgement should be read as a whole a....
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....hose cases and consequently arguments thereon which they may deliberate and at times without the benefit of specific arguments on those facts. The observations which may have been made in passing in these deliberations do not form the ratio decidendi of the decision. It would be too much to ascribe and read precise meaning to words in a decision which the judges who wrote them may not have had in mind. In support of the above legal position, we may make specific reference to CWT vs Dr. Karan Singh and Others. (1993) 200 ITR 614 (SC); CIT vs K. Ramakrishnan (1993) 202 ITR 997 (Kerala) and KTMTM Adbul Kayoom & another vs. CIT (1962) 44 ITR 689. The observations of the Hon'ble Apex Court in the case of CIT vs. Sun Engineering Works Pvt. Ltd. (1992) 198 ITR 297 (SC) specifically observed that it is neither desirable nor permissible to pick out a word or a sentence from the judgement of the Hon'ble Supreme Court divorced from the context of the question under consideration and treat it to be the complete law declared." (Emphasis provided herein) 3.4. Accordingly reverting to the controversy on the issue at hand we hold that there is no conflict between the decision in BMW India Pv....
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....3,298,861 Receipt of IT support service charges 31,155,807 Reimbursement of expenses to group companies 206,515,033 Provision of procurement services 57,269,763 Provision of training services 7,122,574 Interest on External Commercial Borrowings 48,151,177 Reimbursement of expenses by group companies 40,990,036 4. A perusal of the TPO's order shows that the TPO, considering the Transfer Pricing study of the assessee, wherein the assessee described its activities as that of a distributor; and considering the Importation Agreement entered into by the assessee with the parent company, i.e. BMW w.e.f 01.01.2006 which assigned the duties of the assessee with regard to marketing and promotion of the products of the parent company, came to the following conclusions:- 4.2. "It is evident from the TP study of the assessee that its job is to promise the "BMW" brand in India and it had incurred huge expenditure under the heads of advertisement, marketing and promotional expenditure[AMP] in the year under consideration. The details of expenditure incurred by the assessee for trade mark promotion and development of marketing intangibles a....
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....d 5 comparables for benchmarking. The comparables chosen by the assessee have been used for the purpose of comparison of AMP expenditure, with the exception of Mahindra First choice Wheels Ltd. which promotes Mahindra brand is not acceptable, The remaining comparables chosen by the assessee and their relevant AM P data is reproduced hereunder: S.No. Name of the Company Advertising, Marketing and Promotional Expense/Sales (A/B) (%) 3. Eastman Industries Ltd. 0.94 4. Lucas India Services Ltd. 0.94 5. MGF Automobiles Ltd. 4.77 6. Machino Techno Sales Ltd. 5.15 7. Popular Vehicles & Services Ltd. 4.46 8. Sri Ramadas Motor Transport Ltd. 2.18 Further examination of the details of comparables used last year for AMP analysis revealed that the following comparables have not been considered by the assessee. These are also being considered as comparable as there has been no change in the operating circumstances of either the assessee or of the comparables. S.No. Name of the Company Advertising, Marketing and Promotional Expense/Sales (A/B) (%) 1. AVG Motors Ltd. 0.74 2. Competent Automob....
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....ts AE which resulted in enhanced sale and profit to the AEs. Since legal ownership of brand is with the AE the assessee would not be entitled to share in any return attributable to the increase in the value of the brand. This clearly prove that the assessee have assumed significantly greater risk than the arm's length price. Accordingly, in my considered view that the assessee is not only entitled for reimbursement of non-routine AMP expenditure but also a normal return on such AMP activities provided for the benefited of the AEs My view get supported by OECD transfer pricing guidelines at 7.33 'which stipulate that "in an arm's length transaction, an independent enterprise normally would seek to charge for services in such a way as to generate profit than providing the services merely at cost" It is pertinent to mention here that these services are not covered by situations in which markup is not necessary as discussed in preceding paragraph of this order. The next issue is about quantum of markup which the assessee must charge at arm's length price. In the show cause notice, it was proposed to use PLR+2.5% which equals to a markup of 15.27%. The assessee has ob....
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....see filed objections before the Dispute Resolution Panel who rejected the same resulting in the passing of the impugned order. Aggrieved by this the assessee is in appeal before the Tribunal. 5. At the time of hearing Ld. AR placed reliance on assessee's own order for the immediately preceding assessment year and also his synopsis already on record. On the basis of which it was his submission that following the earlier order of the Tribunal in assessee's own case the issues may be decided in assessee's favour. Carrying us through the issues arising in the present proceedings qua the grounds raised and the jurisprudence available specific submissions were made issue wise which we shall address shortly. 6. The Ld. CIT DR apart from relying upon the orders of the authorities below submitted that the issue may be restored to the TPO to decide the same applying the ratio of the Special Bench in the case of L.G. Electronics case. Ld. CIT DR was also heard in response to issue wise discussion addresses by the ld. AR and was also directed to place on record his written submission addressing the departmental concerns for which purposes the hearing was adjourned directing the parties t....
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....two other coordinate benches, being division benches, of the Hon'ble Delhi Tribunal, in the cases of Casio India Co. Pvt. Ltd.[TS-340-ITAT-2013(Del)- TP) and Perfetti Van Melle India Pvt. Ltd.[TS-119-ITAT-2014(Del)-TP), have taken a different view, namely that principles enunciated by the Hon'ble Special Bench in the case of LG also apply to the facts of the distributors. 4. It is further pointed out that in para 21.10 of the order of LG Special Bench as referred above ( as reproduced by the assessee in its paper book for the subject year AY2009-10, on pages 468 and 469, being reproduction of departmental counter submissions in AY 2008-09, pages 465 till 470 of paper book) it has been held - 21.10. It was also contended on behalf of the assessee that if the overall profit of the Indian entity is more than the comparable cases then it should be presumed that the foreign enterprise supplied goods at relatively low price to make up for the AMP expenses incurred in India towards brand promotion. In our considered opinion there are no roots for such a presumption. In order to take benefit of such a contention the assessee is required to directly prove the fact of cheap pur....
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....mming up of the comprehensive arguments made orally on 25-04-2013 (Friday). It is revenue's view that the issue is covered by the Special Bench ruling in the case of M/s. LG Electronics. The counterpoints given hereinafter are to be juxtaposed with assessee's synopsis, which is not being reproduced hereinafter. Counters [1] In Para 17.3 and 17.4 the Special Bench has duly considered that the cases of interveners are distinguishable from each other. After considering various scenario they have laid down guidelines applicable to various scenario(s). These guidelines are not exhaustive. The principles(s) have been duly laid down. The assessee's case, among others, is covered by point nos. 1,2,3,4,9,10,14 etc, of para 17.4. Paras 17.5 and 17.6 have further elaboration of the matter. [2] In Para 17.3 and 17.4 the Special Bench has duly considered that the cases of interveners are distinguishable from each other. After considering various scenario they have laid down guidelines applicable to various scenario(s). These guidelines are not exhaustive. The principles(s) have been duly laid down. The assessee's case, among others is covered by point nos. 1,2,3,4....
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....At this stage, we feel it productive to have a macro view of the transfer pricing provisions. Section 92 provides that the income from an international transaction shall be computed having regard to ALP. What is an international transaction and who is on associated enterprise has been defined in sections 92B and 92A respectively. " The need for specific attribution of subsidy towards a specific international transaction can be understood by the following example,- S.No. Natures of Transaction Book Price (Rs.) Arms Length Price (Rs.) as determined by TPO. Remarks 1. Import of TV tubes (Price paid) 1,00,000 60,000 The Assessee has paid excess price to the extent of Rs.40,000/- 2. AMP Expenditure towards Brand building (that should have been received from AE), (a)Transaction not reported by assessee). Nil 20,000 The Assessee has not received Rs.20,000/- from the AE, though it should have received the same. 3. Subsidy received 30,000 It has not been specified, as to the purpose for which subsidy has been received. According to the assessee, the subsidy is t....
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.... if the overall profit of the Indian entity is more than the comparable cases then it should be presumed that the foreign enterprise supplied goods at relatively low price to make up for the AMP expenses incurred in Indio towards brand promotion. In our considered opinion there are no roots for such a presumption. In order to take benefit of such a contention the assessee is required to directly prove the fact of cheap purchases de hors the overall higher net profit rote. This fact can be established by demonstrating that the foreign AE charged a specially low price from the assessee in comparison with that charged for the similar goods supplied to other independent entities dealing with it in India or in case there is no other independent entity in India, then the price charged for similar goods from other foreign parties. It can also be proved by showing that goods with identical features are available in the India market at a higher price. The fact that the assessee has a better net profit rate in comparison with other comparable entities is not decisive in itself of the assessee having purchased the goods at a concessional rate from its foreign AE as a compensation for its incu....
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....ciding the matter in favour of the appellant for AY 2008-09, the Hon'ble Tribunal had considered all the aspects of the Special Bench ruling in the case of LG Electronics; and was pleased to distinguish the same with reference to the unique facts of the appellant, after taking into consideration all the oral and written submissions filed by the appellant and the learned DR. b. Copies of the written submissions filed by the appellant before the Hon'ble Tribunal for A Y 2008-09 on 18th February, 2013, 26th April, 2013 and 3rd May, 2013 have been submitted before the Hon'ble Tribunal during the course of the present appeal, as part of Paper book No II on 24th April 2014. Incidentally, the latest of the submissions filed by the appellant before the Hon'ble Tribunal for AY 2008-09, namely the one filed on 3rd May, 2013 (pages 451 to 459 of Paper Book No II), had elaborately dealt with all the objections raised by the learned DR vide his written submission filed before the Hon'ble Tribunal on 25th April, 2013 (pages 465 to 470 of Paper Book No II). c. As stated above, the Hon'ble Tribunal had considered all the said submissions before deciding the matter in favo....
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....issions filed by the appellant on 3rd May, 2013 relating to A Y 2008-09 (page 451 to 459 of Paper Book No II); and in the synopsis filed for the current year on 22nd July, 2014, there was no question of the appellant having lowered its import price of CKDs/ CBUs from its foreign AE, i.e. BMW AG, on account of advertisement, marketing and promotional (AMP) or brand building expenses. b.It has been explained in detail in the said submissions that the appellant, while carrying out the functions of a distributor, received an adequate remuneration from its foreign principal, namely BMW AG, for a host of activities, namely (a) buy and sell of products; (b) storing them in warehouses; (c) creating distribution and dealership network and channels; and (d) carrying out necessary marketing and advertising of products, which together constituted one single and indivisible cohesive whole of distributions function carried out by the appellant under the importation agreement entered into with BMW AG; and all the said functions were inextricably subsumed within the distribution activities, for which the appellant received adequate and proper remuneration in the form of a gross margin, vis-a-vi....
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....d relying on the observations in Perfetti Van Melle India Pvt. Ltd. and Casio India Co. Pvt. Ltd. Ltd. in such an eventuality the issue may be referred to the Special Bench. Taking note of the observations of the Bench that the issue is to be decided in terms of assessee's own case as there was no contradiction with L.G. Electronics case he maintained his stand that the Grounds raised by the assessee accordingly have to be allowed in terms of the order of the Tribunal in assessee's own case. 10. Both the parties accordingly addressing the grounds concluded that whereas the grounds addressing AMP issue have to be restored to the TPO however qua the grounds addressing the adjustments claimed and denied on facts has to be restored to the TPO with the direction as per the Ld. CIT DR that the assessee has to substantiate its claim and demonstrate the same qua the comparables allegedly incorrectly considered to be so before the TPO. The issue pertaining to inclusion of selling expenses in the AMP basket of expenses which were directed to be excluded by the Tribunal in assessee's own case in the immediately preceding assessment year which direction has been given following the Special ....
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....in para 17.5 and 17.6 that the factors relevant for picking out the same are also crucial as in the absence of the same the whole exercise becomes meaningless. For ready-reference, we reproduce para 17.2 to para 17.6 from the order of the Special bench as under:- 17.2. "We find that the first step in making comparability analysis, is to find out some comparable uncontrolled cases. It goes without saying that a comparison can be made with the cases which are really comparable. A case is said to be comparable when it is from the same genus of products and also other relevant factors, such as, type of products, market share, assets employed, functions performed and risks assumed, are also similar. Once proper comparable cases are chosen, then the next step is to neutralize the effect of the differences in relevant facts of the case to be compared and the assessee's case, by making suitable plus or minus adjustments. 17.3. From the arguments of the ld. counsel for some of the interveners it transpires that the nature and terms of the agreements between the Indian AEs and foreign AEs differ from case to case. In some cases there is payment of royalty for the brand use, while in ot....
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....AE, is it also using any technology or technical input or technical knowhow acquired from its foreign AE for the purposes of manufacturing such goods ? 8. Where the Indian AE is using technical know-how received from the foreign AE and is paying any amount to the foreign AE, whether the payment is only towards fees for technical services or includes royalty part for the use of brand name or brand logo also ? 9. Whether the foreign AE is compensating the Indian entity for the promotion of its brand in any form, such as subsidy on the goods sold to the Indian AE ? 10. Where such subsidy is allowed by the foreign AE , whether the amount of subsidy is commensurate with the expenses incurred by the Indian entity on the promotion of brand for the foreign AE ? 11. Whether the foreign AE has its presence in India only in one field or different fields ? Where it is involved in different fields, then is there only one Indian entity looking after all the fields or there are different Indian AEs for different fields ? If there are different entities in India, then what is the pattern of AMP expenses in the other Indian entities ? 12. Whether the year under consideration is the e....
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.... that the applicability of bright-line test following the principles laid down in by the Special Bench has been upheld in assessee's own case. 11.5 Ground No-1.5 although this issue on facts in the immediately preceding assessment year has been decided in assessee's favour. The fact remains that the applicability of the same principally has to be upheld whether on facts adjustment on this is warranted or not is a fact to be demonstrated by the assessee before the TPO. Similarly on the applicability of rate if so warranted is also restored to the TPO with the direction to pass a speaking order in accordance with law after giving the assessee a reasonable opportunity of being heard. 11.6 Addressing the grievance raised in Ground No-1.6 we direct the TPO to exclude the expenses pertaining to after sales support costs incurred for company dealers and salesman bonus etc. from the AMP bundle of expenses following the precedent in assessee's own case in 2008-09 assessment year decided by Tribunal which direction is further fortified by the precedent laid down by the Special Bench in the case of L.G. Electronics case and similar directions following the Special Bench have been given ....
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....as to whether any benchmarking analysis was done at the time of entering into the agreement so as to compare the payment of IGS to the AE vis a vis an independent party under similar circumstances If so, the details thereof. 9. Please show with evidence as to what tangible and direct benefit has been derived by the assessee company from the use of such IGS. 10. Whether the services availed from AEs, have also been performed by the assessee company itself or also availed from independent parties? If yes, a The details of such expenditure for each of the services should be furnished b Please state as to why a separate payment has been made for such services to the AE. 11. Please furnish details and documentary evidence of cost incurred by the AE for rendering each type of services purportedly received by the assessee company and the mark up applied, if any by the AE. Please also state as to whether the cost incurred by the AE is audited. 12. Whether AE is rendering such services to any other AEs/independent parties also. If yes the details thereof including the rates/amount charged from such AEs along with mark up if any. 13. If the AE has rendered services to mo....
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....book operating system packages needed for BMW business users. This service includes necessary infrastructure for both clients: * Installation and support of desktop hardware in close adaptation to BMW purchase and rental model. * Code server (installation, user profile, logon 'script, replication) * Provisioning and maintenance of E-Clients/G-Clients based on Microsoft Enterprise Agreement ('MSEA '). * Provisioning of BMW standard office applications (e.g. MS Office, Internet Explorer, Palm Desktop, Calendaring, WinZip etc] and optional office applications (e.g MS Project, Visio,etc.] * Automated software distribution (e.g. SUS patch management, hot fixes, etc) * Physical Inventory/Asset management (subject to separate contracts for support centre services which only applicable to on-site support local model) * Provisioning user data storage (U drive allocations, quota subject to local file server disk space limitations. U drive storage space capacity management is task of service receiver, DIVA) * Provisioning of a Client-end Email interface {MS Outlook client installations, Mail address settings, Web access interfaces). * Access to the BMW group....
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....Considering these he was of the view that they did not prove the fact that it was actually made available and received. He further perused that the payments were also on cost to cost basis without any profit margin/mark-up built in and there was no basis of actual cost allocation. Considering the explanation he was further of the view that there was no evidence to show that there was any designated person rendering the services as same persons were found to be on the payroll of AE and major portion of work it was presumed would have been carried out by them for the AE and only ancillary services if any would be provided to the assessee company. Considering the OECD Guidelines, the TPO was of the view that it was necessary to see whether the activities undertaken by one group member are not merely duplicated. Accordingly he was of the view that the following essential information was required to be considered:- 1. "Whether the AE has received intra group services? 2. What are the economic and commercial benefits derived by the recipient of intra group services? 3. In order to identify the charges relating to services, there should be a mechanism in place which can identify ....
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....stment of Rs. 3,11,55,807/- holding as under:- 11.8.4 "In view of the foregoing, the discussion already made above is summed up as follows: * In this case, the assessee has failed to substantiate that services have actually been rendered to it and benefit has actually been derived by it on the basis of documentary evidence. In support of its contention, the assessee has merely furnished copies of certain mails exchanged between the personnel of the Group. None of the above reproduced e- mail exchanges between the employees establish the requirement/specific need of the assessee for their services, the benefit which has accrued to the assessee, or that an independent party would have been willing to pay another independent party for the services purported to be received by the assessee. * The services received are incidental being in nature of long association. * It is evident from facts stated above that the assessee did not file any evidence to support a claim that these services were actually provided to the assessee at its request to meet the specific need of the assessee and that certain tangible and concrete benefits have actually accrued to the assessee. * Unde....
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....r shall consequently increase the taxable income of the assessee by an amount of Rs. 31155807 /-." 13. Aggrieved by this the assessee filed objections before the DRP. The DRP considering the same summed up the issue in the following manner so as to confirm the action of the TPO holding as under:- "In Ground No.3, 3.1, 3.2, 3.3 and 3.4, the assessee has objected to the determination of the ALP of the Intra Group Service Charges as NIL by using CUP method. During the year the assessee had made payments of Rs. 3,11,55,807/- to its AE for intra-group services. The TPO has found that intra-group service did not exist in the instant case. Accordingly, the TPO has determined the ALP of intra-group services as NIL on application of CUP method as no independent enterprise would have paid any amount to an unrelated party for such services which did not give any benefit. We have examined this issue. We find that the assessee has not maintained contemporaneous documentations regarding intragroup services. In the case of GEMPLUS India Pvt. Ltd. vs. ACIT in ITA No.352/Bang/2009 A.Y. 2003-04, the Hon'ble ITAT, Banglore has held that "the TPO has made a clear findings that there are no de....
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....dia as a distributor, also performing low value added assembly of automobiles. 4.2. Accordingly, it was considered appropriate to aggregate these transactions and then analyze them. However, since these transactions would not get covered under gross margin analysis, it was considered appropriate to assess their impact at the operating level, along with the transactions of purchase of transactions of purchase of CKDs, purchase of CBUs, etc. 4.3. However, disregarding all of the above the Ld. TPO applied CUP as the most appropriate method for the said transaction merely based on presumption, that the arm's length value of the transaction is 'NIL'. 4.4. With respect to the IT related needs of the Appellant, BMW group supports BMW India by providing online troubleshooting services for its various hardware/software related problems and helps maintaining the IT infrastructure used by BMW India. For receipt of these services, the Appellant made a payment of INR 31,155,807 to BMW Group. (Refer pages 114 to 116 of Appeal set) 4.5. The IT support is an integral part for the overall functioning of BMW India. They are essential operating tools for the Appellant that are required by....
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....s the argument that on similar facts no adjustment was made by the TPO in the immediately preceding assessment year appears to be a plausible belief that contemporaneous documentation may not be required to be demonstrated. Accordingly in the interests of natural justice, it would be appropriate to restore this issue back to the file to the TPO with the direction to decide the same in accordance with law after giving the assessee a reasonable opportunity of being heard. While doing so, we direct the assessee to place necessary evidence in support of its claim before the TPO and utilize the opportunity so provided in good faith and not squander it. The grounds raised is accordingly allowed for statistical purposes. 17. Qua Ground No-3 & 4, the Ld. AR invited attention to unnumbered page- 384 of the assessment order dated 18.1202013 so as to submit that Serial No-27 Cisco Switch totaling 3 in number are found to be mentioned at Serial No.27 and Serial No-30 refers to Cisco Switch 4 in number valued at Rs. 2,17,425/- & 2,57,599/- respectively. It was his submission that the claim qua Serial No-30 has been allowed. In the circumstances it was his request that a direction may be give....