2022 (5) TMI 1512

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....were heard together and being adjudicated by a common order. 3. In ITA No. 5597/Del/2018, following grounds have been raised by the assessee: "1. That the Learned Commissioner of Income Tax (Appeals)~44, New Delhi ("Ld. CIT(A)") has grossly erred on fact and in law in upholding (in part) the transfer pricing adjustments made by the Ld. AO under Section 92CA(3) of the Act in the year under consideration in respect of payment of management fees paid to an associated enterprise. In doing so, the Ld. CIT(A) erred in 1.1 failing to appreciate that said, payment of Management fee was also disallowed under section 40(a)(ia) of the Act by the Ld. AO in rectifying order under section 154 of the Act for the year under considerati....

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....act, such as that the cost of stewardship/shareholding activities had not been deducted in the calculation of the management fee, and that the Appellant did not provide details of how the costs were allocated to it by the associated enterprise. 3. That the Ld. CIT(A) grossly erred on fact and in law in confirming disallowances of excess depreciation of INR 109,985 on electrical fitting on the alleged ground that the electrical fittings would be classified under 'Furniture and Fittings' and depreciated at 10% as against 'Plant and Machinery' which is depreciable at 15%." 4. McCain India is a private limited company incorporated under the laws of India since 1996. McCain India is a wholly owned subsidiary of McCain Canada. McCain ....

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....owance of Rs.2,17,74,875/- including service tax under section 40(a)(ia) of the Act for the same services and recomputed the income assessed under original assessment order dated 21.03.2014 to Rs.2,17,74,875/-. The said disallowance under section 40(a)(ia) of Act was accepted by the assessee and the same has attained finality. • On the above development, the additional ground was taken before the ld. CIT(A) as stated above and before ld. CIT(A) it was submitted that the AO ought to be directed to delete the TP adjustment of the same amount and that the adjudication of the transfer pricing addition of management fee would become academic in nature as the said international transaction has no bearing on the total income of the as....

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....liable to be added to the total income of the assessee. Similarly, for the same amount, the ALP was determined by the TPO as NIL which amounts to addition of such amount to the total income of the assessee again in the instant case. 11. Hence, the observation of the ld. CIT(A) that section 40(a)(ia) and 92CA of the Act operate simultaneously in the instant case and are not contradictory to each other is incorrect is devoid of merit. 12. Reliance is being placed on the decision of the Hon'ble Supreme Court in Laxmipat Singhania Vs. Commissioner of Income Tax, U.P. 72 ITR 291 wherein the Hon'ble Supreme Court has observed that "It is a fundamental rule of law of taxation that, unless otherwise expressly provided, income cannot be taxed ....