TaxTMI 
TaxTMI 
2021 (6) TMI 870
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....unt of the payments made to its associated enterprice. 4. The main contention of the petitioner in this writ petition is that despite a precedent on the very same issue for the assessment year 2013-14 vide order dated 14.5.2018 in ITA.No.2977/CHNY/2017, the 1st respondent has passed the impugned order dated 30.8.2018 under Section 92 CA(3) of the Income Tax Act, 1961. 5. The learned counsel for the petitioner submits that an identical issue came up for consideration before the Tribunal in the above case in ITA.No.2977/CHNY/2017. It is submitted that the Tribunal vide order dated 14.5.2018 in ITA.No.2977/CHNU/2017 answered the issue in favour of the petitioner with the following observation:- II. Application of TNMM: 3. The lower authorities have, in the facts and circumstances of the case and in law, erred in incorrectly computing the operating margin of the appellant and those of the comparable companies selected for benchmarking purposes. 4. The lower authorities have, in the facts and circumstances of the case and in law, erred in choosing certain comparable companies despite such companies failing the legally required parameter such as, but not ....
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....f the case and in law, erred in considering the value of corporate services availed as ' Nil' purportedly under the CUP method, without bringing on record any benchmarking exercise using comparable companies and as such exceeded their jurisdiction. 13. The lower authorities have, in the facts and circumstances of the case and in law, erred in disregarding the evidence provided by the appellant for availing corporate services and has erred in concluding that no tangible/direct benefits accrued to the appellant from such services. 6. The Tribunal has considered the same and the necessary issue in para 10 is as follows:- 10.......... The services referred under ' Corporate Services' are intrinsically linked to its manufacturing and sales activity. These two services cannot be separately demarcated. Corporate services are the services rendered, which has helped the assessee in generating the business in respect of marketing and trading. This being so, in view of the decision of Hon'ble Delhi High Court in the case of CIT vs. EKL Appliances Ltd., referred to supra, the id. Assessing Officer is directed to allow the assessee's claim of the Corpora....
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....Ltd., (1992) 1992 taxmann.com 16(SC= 1995(91) ELT 433 (SC), the principles of judicial discipline requires that the orders of the higher appellate authority should be followed unreservedly by the subordinate authorities. 13. It is further submitted that merely because the order of the appellate authority was not acceptable to the Department itself was held to be an objectionable phrase and was the subject matter of an appeal can furnish no ground for not following it unless its operation has been stayed or suspended by a competent Court. 14. It is submitted that though the order of the Tribunal has now been appealed, it is no ground for not following the same in absence of the stay by the Court. 15. It is further submitted that the 1st respondent Transfer Pricing Officer is only concerned with the determination of the value of the service and the payments made for the purpose of computation of the Income Tax and was really not concerned with the issue as to whether the service for which amounts were paid necessary or unnecessary. It is submitted that these are to be determined only by the Assessing Officer and not by the 1st respondent Transfer Pricing Officer. 16. Defe....
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....ction, a reference was made to the decision of the Hon'ble Supreme Court in Mohinder Singh Gill vs. Chief Election Officer (1978) 1 SCC 405, wherein in para 8 it has been held that the orders are not like old wine becoming better as they grow older. Para 8 which was relied reads as under:- 8. By way of re-joinder to the submission of the learned counsel for the petitioner, the respondent drew my attention to the counter of the respondent, wherein it held as under :- The learned senior counsel submitted that the so-called 'reasons to believe stated in the impugned proceedings are sought to be supplemented by new reasons stated in the counter affidavit which according to the learned senior counsel is not permissible in view of the law laid down by the Hon'ble Supreme Court of India. The Hon'ble Supreme Court in the case of Mohinder Singh Gill vs. Chief Election Commission (1978) 1 SCC 405 has laid down in paragraph 8 as follows:- The second equally relevant matter is that when a statutory functionary makes an order dated on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of af....
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....he assessment year in question. 24. That apart, the challenge to the impugned order is premature. The petitioner has options under the Act to approach the Dispute Resolution Panel and if such was orders are passed the order, liberty is always available by way of statutory appeal before the income tax appellate Tribunal. 25. This view is fortified by the decision of the Division Bench of this Court in Hyundai Motor India Ltd., vs. Deputy Commissioner of Income Tax, (2018) 96 taxmann.com 497, wherein it was held as under: 23. Considering the above Judgments of the Apex Court, this Court is of an opinion that the writ petition has not established that there is a violation of principles of natural justice nor there is an error apparent on record. No exceptional circumstances have been established in the present writ petition. If at all, the writ petitioner is aggrieved in respect of the fixing of average rate of royalty payment, then it is left open to them to approach the Disputes Resolution Panel and thereafter, if they are further aggrieved in respect of the fixing of average rate of royalty payment, then they are liberty to approach' the ITAT" constituted for the pur....