TaxTMI 
TaxTMI 
2019 (11) TMI 1810
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....1 (Act) on the following grounds; 1 The order of the learned AO is based on incorrect interpretation of law and therefore is bad in law. 2 On the facts and in the circumstances of the case and in law, the learned CIT(A) erred in assessing the total income of the appellant Rs. 42,01,21,617/- as against returned income of Rs. 31,26,88,290/- computed by the appellant. Transfer Pricing grounds: 3. The learned CIT(A) erred in law and in facts, by upholding the approach of the AO/Transfer Pricing Officer in rejecting the resale price method (RPM) adopted by the appellant as the most appropriate method for determining the arm's length price (ALP) of the impugned international transaction and adopting the Transactional Net Margin Method ("TNMM") instead. 4. The learned TPO and the learned AO erred, in law and in facts, in upholding the fresh comparable search undertaken by the learned TPO/AO during the course of assessment proceedings using information/data which was not available to the assessee at the time of satisfying the mandatory documentation requirements. 5. The learned CIT(A) has erred(alongwith the learned TPO and the lear....
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....ls Private Limited ["Festo India" or "the Appellant" or "the Company"] respectfully craves leave to prefer an appeal against the order passed by the Assessing Officer ("AO") dated 31 January 2013 (received by us on 15 February 2013) under section 143(3) of the Income-tax Act, 1961 (the "Act"), on the following grounds: 1 The order of the learned AO is based on incorrect interpretation of law and therefore is bad in law. 2 The learned Transfer Pricing Officer ("TPO") and the learned AO have erred, in law and in facts, by not accepting the economic analysis undertaken by the Appellant in accordance with the provisions of the Act read with the Income-tax Rules, 1962 ("Rules"), and holding that the Appellant's international transactions (i.e. payment of SAP charges to Festo Germany and import of finished goods for trading) are not at arm's length. Trading transaction 3. The learned TPO and the learned AO erred, in law and in facts, by rejecting the Resale Price Method ("RPM") adopted by the Appellant as the most appropriate method for determining the arm's length price ('ALP") of the impugned international transaction and adopting the....
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....panies towards SAP implementation for determining the Arm's Length Price ("ALP") in case payment of SAP maintenance charges paid. 12. The learned TPO and the learned AO erred, in law and in facts, by applying CUP method, without undertaking an objective analysis for identifying comparable transactions and merely relying on the order passed by the TPO for AY 2007-08 and AY 2008-09 and determining the ALP in respect of payments of charges to AEs as NIL. 13. The learned AO has erred, in law and facts, in assessing/computing the total income at Rs. 42,01,21,617 and computing the additional tax liability of Rs. 5,43,69,672. 14. The learned AO erred in law and in facts, in levying interest of Rs. 1,78,54,085/- and Rs. 21,315 under section 234B and section 234C of the Act, respectively. 15. The learned AO erred in law and in facts, by initiating penalty proceedings under section 271(1)(c) of the Act. The appellant submits that each of the above grounds is independent and without prejudice to one another. The appellant caves leave to add, alter, amend, vary omit or substitute any of the aforesaid grounds of appeal at any time before....
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....om AEs in absence of debtors and inventory in the case of assessee for calculating the cost of working capital built in the profit margin. 4. On the facts and in the circumstances of the case the Dispute Resolution Panel is not justified in directing the TPO to adjust the profit margin of the assessee for the entire amount of advances received from AE on the ground that there is time value for money. 5. For these and other grounds that may be urged at the time of hearing, it is prayed that the directions of the Dispute Resolution Panel in so far as it relates to the above grounds may be reversed. 6. The appellant craves leave to add, alter, amend and/or delete any of the grounds mentioned above. 2. Brief facts of the case are as under: At the outset Ld. AR submitted that issues raised by assessee as well as revenue and cross appeals filed for assessment year 2009-10 as well as for assessment year 2010-11 are identical and TP additions are based on similar facts and circumstances. It has been submitted that the TP adjustment for assessment year 2009-10, are for trading segment as well as intra-group services and comparables selected for computing ADP....
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....Petitioner submits that the above additional grounds are being raised by way of abundant caution. The additional grounds raise issues which are fundamental to the appeal and the non-admission and non-adjudication of the same would result in an incomplete appreciation and adjudication of the matter. The Petitioner submits that the failure to raise these grounds at an earlier stage is neither willful nor wanton but due to the reasons stated above. No prejudice would be caused to the Respondent by reason of the above additional grounds being admitted and adjudicated and accordingly the balance of convenience is in favour of such an order being passed by this Hon'ble Tribunal. In the above circumstances, the Petitioner prays that this Hon'ble Tribunal be pleased to; i) admit and adjudicate the above additional grounds; and (ii) pass any other order that may be required in the circumstances of the case and render justice. 2.3. Ld. AR submitted that assessee has entered into advanced pricing agreement for assessment years 2014-15 to 2018-19 covering all international transactions undertaken by assessee during the said period. Further ld. AR fairly su....
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....idered as under: "5.1 Further, bringing our attention to the decision of Coordinate Bench of the Tribunal in the case of Abicor Binzel Production (India) (P.) Ltd. v. Dy. CIT in ITA Nos. 2253 to 2255/PUN/2014 and IT A No. 139/PUN/2014, Ld. Counsel for the assessee submitted that in this case the APA is found applicable to the earlier assessment years in those cases, as the case may be, when the facts of the A.Y. 2008-09 are similar to that of the assessment year covered in the APA. For the sake of convenience, the same are extracted here as under: 1. In the case of Abicor Binzel Production (India) Pvt. Ltd. v. Dy. CIT (ITA Nos. 2253 to 2255/PUN/2014 "In the light of fact that assessee has entered into APA, the Coordinate Bench of the Tribunal in the assessment year 2009-10 has directed Assessing Officer to decide the issue in accordance with the terms and conditions of APA as nature of transactions are similar. If they are of similar nature, the same can be decided afresh in line with the terms and conditions of APA. The appeals of the assessee are thus, allowed for statistical purpose with aforesaid directions." 2. In the case of Abicor....
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....case may be, for the purpose of comparing the facts of the case and the relevant terms of agreement between the CBDT and the assessee. AO is directed to examine the facts closely and conclude the assessee on the issue of applicability of APA to the assessee's case for the year under consideration in principle. AO is also directed to consider the above cited decisions of Pune Bench of the Tribunal as well as Delhi Bench of the Tribunal for the legal proposition of deciding the issue in the light of APAs. Accordingly, the Grounds Nos. 14 to 17 raised by the assessee are allowed for statistical purposes." Roll Back provisions are dealt with as per Rule 10MA of Income tax Rules 1962. We have perused APA dated 31/07/2018 for assessment years 2014-15 to 2018-19, between assessee and CBDT in respect of AE's most particularly mentioned in Appendix 1(a). In APA signed by assessee, there is no roll back provision for years under consideration. However, circumstances which provides for applying the rule, needs to be analysed. The transaction must be identical in terms of functions, risks assumed regarding international transaction must be same. 4. Having regards to above discuss....