TaxTMI 
TaxTMI 
2019 (5) TMI 290
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....o.1, being general in nature does not require adjudication. 3. In grounds no.2 to 17, the assessee has raised the issue relating to transfer pricing adjustment. 4. At the outset, Shri Porus Kaka, learned Sr. Counsel for the assessee submitted, if ground no.12, relating to comparability of Apitco Ltd., is decided in favour of the assessee, assessee's margin would be within the arm's length price, hence, the other grounds relating to transfer pricing issues would become redundant. 5. The learned Departmental Representative has also agreed with the aforesaid submission of the learned Sr. Counsel for the assessee. 6. In view of the aforesaid, we deem it appropriate to decide ground no.12, at the very outset. 7. Brief facts ar....
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....icer. 9. Before us, learned Sr. Counsel for the assessee has restricted his argument to selection of Apitco Ltd., as a comparable. In this regard, the specific contention of the learned Sr. Counsel for the assessee is, the company being a Government company cannot be treated as comparable. To emphasize this fact, learned Sr. Counsel drew our attention to the functional profile of this company as contained in the annual report and submitted that while the assessee is rendering small support services to the AE, this comparable is an entrepreneur. Further, he submitted, the segmental details of various segments are not available in the annual report. Further, drawing our attention to the annual report, learned Sr. Counsel submitted, this....
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....to the assessee, it has to be accepted as a comparable. 11. In rejoinder, learned Sr. Counsel for the assessee submitted, irrespective of the fact that this comparable is a Government Company, even a PSU cannot be considered as a comparable since it is protected by Government in many ways including grant of subsidy. Relying upon the decision of the Hon'ble Delhi High Court in Li & Fung India Pvt. Ltd. v/s CIT, (2014)361 ITR 85, the learned Sr. Counsel submitted, the standard of comparability under Transactional Net Margin Method (TNMM) is not less than any other applicable methods. Further, he submitted, this company cannot be considered as comparable due to functional difference and lack of segmental break up. In support of su....
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....The aforesaid decision of the Tribunal was upheld by the Hon'ble Delhi High Court while deciding Revenue's appeal in ITA no. 454 of 2016, dated 30th May 2017. It is relevant to observe, though the Department challenged the aforesaid decision of the Hon'ble Delhi High Court before the Hon'ble Supreme Court, however, the SLP was dismissed by the Hon'ble Supreme Court finding no merit therein. Thus, in view of the judicial precedents referred to above, Apitco Ltd., cannot be considered to be a comparable. Even otherwise also, in various other decisions, Apitco Ltd., has been rejected as a comparable due to functional dissimilarity and lack of segmental break-up. In view of the aforesaid, we direct the Assessing Officer to exclu....
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....or the assessee submitted, the issue has been consistently decided in favour of the assessee from the assessment year 2009-10 onwards by the Tribunal and the decision of the Tribunal has been upheld by the Hon'ble Jurisdictional High Court. In this context, he drew our attention to the decision of the Tribunal and the Hon'ble Jurisdictional High Court in assessee's own case for the assessment years 2009-10 and 2010-11. The learned Sr. Counsel submitted, even in respect of other assessees also, the Hon'ble Jurisdictional High Court and the Hon'ble Supreme Court have held that channel placement fee is not in the nature of royalty. 18. The learned Departmental Representative, though, agreed that in the preceding assessmen....