TaxTMI 
TaxTMI 
2016 (5) TMI 578
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.... of the case, the Tribunal is right in law in setting aside the issue of transfer pricing to the file of the TPO for reconsidering the issue on the adoption of the most appropriate method and to arrive at the ALP after making the adjustment after taking the appropriate comparables, as even for computation of ALP by adopting CUP method, identifying comparables is essential by following its earlier which has not reached finality and when the TPO rightly held that the payment made by the assessee for technical and management cost of Rs. 7,27,57,135/- to the AE was an independent international transaction which had to be analysed by applying CUP method prescribed by Rule 10B (1)(a) of the Act"? bstantial questions of law in ITA No.470/2013 ....
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....or the management services rendered by it or is it only required to reimburse the expenses of the personnel visiting the sites in India? As for as clause 9.2 of the licence agreement is concerned, we find that it for the services rendered by the AE as enumerated in clause 6.2 and 6.7 of the licence agreement that the payments are to be made by the ssesseee and those payments shall also include the living expenses, travel expenses etc., The word 'including' used in this clause demonstrates that the payment is something over and above the expenses of travel, living etc., and that the payment for the services exceeding these expenses have to be agreed upon by the parties mutually. As far as the reimbursement of expenses are concerned, we have ....
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....O can only examine and compute the quantum of ALP, but he has no authority to disallow the entire expenditure or a part thereof on the ground that the assessee has suffered continuous losses and therefore, not gained any commensurate benefit there from. Similar view was expressed by the Bench of the Tribunal at Mumbai in the case of Dresser Rand India (P) Ltd., cited supra. Respectfully following the same, we hold that the TPO has no authority to hold that since the assessee has not been able to demonstrate commensurate benefit for the expenditure incurred by it, the ALP to be determined is nil. As the TPO has erred in appreciating clause 9.2 of the licence agreement and coming to erroneous conclusion with the said clause authorize....
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....m the year 2003 onwards, the TPO has not made any transfer pricing adjustment till the AY: 2006-07 and even for the subsequent AY: 2008-09 where the assessee has received the services from its AE. Once the TPO has accepted the ALP computed by the assessee by virtue the very same licence agreement dated 31-10-2003 (as per which the assessee has been receiving services year after year), it cannot take a contrary view only for the assessment year 2007-08 holding that the assessee is not receiving any services. In view of the same, we deem it fit and proper to remand the issue to the file of the TPO for recomputing of the ALP without insisting upon the quantification of each of the services received by the assessee and the commensurate benefit ....
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.... entire payment made by the assessee towards 'management services' shall be taken as the aggregate payment for all the services rendered by it and the matter is remanded for computation. 6. Mr.K.V.Aravind, learned Counsel appearing for the appellants contended that the comparable aspects of the quantum of the services rendered vis-à-vis t he expenses incurred, is not left open by the Tribunal and the Tribunal has concluded the same and therefore, there is a valid grievance of the appellants-Revenue. He submitted that such an exercise is permissible under Section 92 of the Income Tax Act. He also relied upon the decision of Delhi High Court in the case of Commissioner of Income Tax Vs. EKL Appliances Ltd reported at (2012) 81 CCH 0....