2021 (2) TMI 135

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....dmitted by a Bench of this Court vide order dated 09.11.2018 on the following substantial question of law: "Whether on the facts and in the circumstance of the case, the Tribunal is right in law in setting aside the disallowance made by appellate authority under Section 80JJA of the Act by relying on its earlier order in case of assessee itself when said earlier order has not reached finality and even when the appellate authority rightly rejected said claim as deduction cannot be given in respect of additional wages paid on employment of new workmen during the previous year 2009-10 (Rs. 55,99,,873/-) & 2008-09 (Rs. 18,09,043/-) as Form No.10DA certifies the amount if deduction at Rs. 1,11,32,662/- for the Assessment Year 2010-11?" 3. Fa....

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....the Act. The Transfer Pricing Officer treated the expenditure incurred on the advertisement and marketing and product promotion as an international transaction and determined the arms length price by applying bright line method. Pursuant to the order passed by the Transfer Pricing Officer, a draft assessment order was passed by the Assessing Officer, by which disallowance to the extent of adjustment on account of transfer pricing Rs. 20,20,07,861/-, disallowance under Section 14A read with Rule 8D(2)(iii) to the extent of Rs. 20,51,175/- and disallowance of Rs. 74,08,964/- under the provisions of Section 80JJAA of the Act were proposed. The assessee thereupon filed objections before the Dispute Resolution Panel contesting all the additions.....

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....n 92A(1) and (2) have to be read independently and since the case of the assessee falls within the purview of Section 92A(2)(g) of the Act, therefore, the transaction in question has to be held as an international transaction and therefore, the Tribunal ought to have held that the provisions of Section 92A are applicable to the case of the assessee. 6. On the other hand, learned counsel for the assessee has invited our attention to the memorandum of the Finance Bill, 2002, in which clarification regarding provisions of transfer pricing has been mentioned. It is further submitted that the Tribunal has relied on the judgment of Ahmedabad Bench of the Tribunal, which had held that sub-Sections 1 and 2 of Section 92A have to be read together a....

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....in sub-Section (2) are fulfilled. 8. Before proceeding further, it is apposite to take note of relevant extract of sub-Sections (1) and (2) of Section 92A of the Act which reads as under: 92A (1) For the purposes of this section and sections 92, 92B, 92C, 92D, 92E and 92F, "associated enterprise", in relation to another enterprise, means an enterprise - (a) which participates, directly or indirectly, or through one or more intermediaries, in the management or control or capital of the other enterprise; or (b) in respect of which one or more persons who participate, directly or indirectly, or through one ore more intermediaries, in its management or control or capital, are the same persons who participate, directly or indirectly, or....