TaxTMI 
TaxTMI 
2024 (12) TMI 550
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.... case and in law, the Ld. CIT(A) is not justified in deleting the entire addition of Rs. 3,05,45,593/- made by the AO ignoring report of the TPO determining the arm's length price, which is determined appropriately. 2. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) is not justified in deleting the above addition holding that the entire sale proceeds has been transferred to JV partners and the JV has not done any work when the fact is that the JV is the actual recipient and has to discharge the responsibility arising in difference in ALP determined by the TPO examining the facts and domestic transactions by the JV with its AE, as mentioned in Form No.3CEB filed by the JV. 3. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) is not justified in deleting the additions of Rs. 16,34,369/- & Rs. 1,67,979/- made by the AO towards difference in gross receipt and non-deposit of PPF in due date respectively, in violation of provisions of Rule-46A of Income Tax Rules, 1962. 4. The appellant craves to alter, amend or add any other ground that may be considered necessary in course of the appeal proceeding. 3. The assessee again....
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....mestic transactions price and accordingly an adjustment of Rs. 3,05,45,593/- is made by the TPO in view of the comments made in the order which are reproduced as under :- 5:00 TPO's comments: The reply of the assesse is perused, wherein it has stated that the main purpose for formation of JV was not to earn profits but to bring coordination among the JV partners to execute the works given by the MCL. The contention of the assessee is not acceptable. The assessee's objective was to transfer the entire sale proceeds to AE to ensure lowest sale price to MC. The assessee failed to justify the rationality of the approach since, the ultimate sale price to MCL is not linked with the cost of either assessee or AE in the entire scheme of arrangement. Further, the assessee's contention that the income of the assessee had already been taxed in the hands of its constituent partner is not tenable as the tax is not in the hands of the right person. That, the mere fact of the income sought to be taxed as per this assessment proceeding has been taxed earlier in the wrong hands does not preclude the Department to tax the right person in respect to that income. Reliance is placed o....
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....tal adjustment to be made to the total income aggregates to Rs. 3,05,45,593 for the AY 2013-14. 7:00 In view of the above adjustment the assessing officer may explore the feasibility of initiating penalty u/s 2 71AA of the Act for non-reporting of the above detailed transactions. 8:00 It is hereby clarified that the findings and discussions made in this order pertains only to the extent of determination of arm's length price of International and/or Specified Domestic Transaction(s) and are only applicable in respect to reference received for AY 2013-14 and shall apply accordingly. 5. The AO has completed the assessment by making addition of Rs. 3,05,45,593/- as adjustment in domestic transactions based on the TPO's order. In first appeal, the ld. CIT(A) after considering the arguments of the assessee and by accepting the assessee's alternative plea has deleted the addition by holding therein that since the services rendered by assessee to associate enterprises were exactly same as, in effect, rendered by associate enterprises to independent parties, the price charged for the same service by associate enterprises from independent end customer was best CUP input for dete....
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....e of hearing on earlier occasion, which is reproduced hereunder:- In the ITRs filed for A.Y.2013-14 & A.Y.2014-15, the assessee has itself shown it as an AOP and therefore it is a taxable entity as per provisions of Income Tax Act. The findings of the Id. CIT(Appeals) are erroneous for the following reasons: i.) During the year under reference, the assessee has paid loading and transportation charges to its associated enterprises. The entire contract from MCL (Mahanadi Coalfields Limited) has been sub- contracted to its three associated enterprises. Even in the back to back contracts, there has to be mark-up which is absent in the present case. ii.) Before the TPO, no supporting documents were submitted by the Id. AR of the assessee to substantiate the basis on which Arms Length Pricing was determined with respect to its AEs. There is no evidence that it had used CUP method for determining ALP. The TPO therefore followed TNNM as the best method for benchmarking the transactions. He has thus applied mark-up ill.) The Id. CIT(Appeals) has held that in case of back to back contracts, the CUP is the best method relying on the decision of Hon'ble Delhi Tribunal in the case o....
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....t allowed any opportunity to the AO to verify such evidences. Rule-46A(3) is mandatory and indispensable and non- compliance of same will require re-adjudication of the matter by the CIT(A). In this regard, reliance is placed on following decisions: 1) Hon'ble Himachal Pradesh High Court in the case of CIT vs. Shree Kangra Steel (P) Ltd. (320 ITR 691) (para-B) 2) Hon'ble Madras High Court in the case of CIT vs. Subbu Shashank (327 ITR 577) (para-G) 3) Hon'ble Delhi High Court in the case of CIT vs. United Towers (P) Ltd. (296 ITR 106) 4) Hon'ble Delhi High Court in the case of Manish Build Well (P) Ltd. (16 taxmann.com 27) ix.) As regards the late deposit of employee's PF, the same shall constitute income in the hands of the employer as per section 2(24)(x) of the Act. As per section 36(1)(va), employee's PF should be paid with due dates as prescribed under PF Act i.e. 15th of next month plus grace period of 5 days. Amendment to section 43B by Finance Act, 2003 is not applicable to section 36(1)(va) of the Income Tax Act. This is supported by the following judgements: a) Hon'ble Madras HC in the case of Unific Management Securities (India) (P....
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....ible to Income Tax, In support of aforesaid argument it pertinent to mention here certain provision of 4 and 5 of the Act: "4. Charge of income- tax (l) Where any Central Act enacts that income- tax shall be charged for any assessment year at any rate or rates, income- tax at that rate or those rates shall be charged for that year in accordance with, and 2 subject to the provisions (including provisions for the levy of additional income- tax) of, this Act} in respect of the total income of the previous year] of every person: Provided that where by virtue of any provision of this Act income- tax is to be charged in respect of the income of a period other than the previous year, income- tax shall be charged accordingly. 5, Scope of total income (1) Subject to the provisions of this Act, the total income of any previous year of a person who is a resident includes all income from whatever source derived which- Therefore from the above it is evident that income tax shall b~ chargeable in respect of total income of a person and if entity sought to taxed is not a person as per section 2(31) of the Income Tax Act, 1961, then charging section i.e. S. 4 of the Act shall not be ap....
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....ies that they joined the joint venture only for the purpose of securing the contract by pooling their expertise and do the works independently. The JV in fact acted only as a facilitator in securing the contract as the work awarded by the Principal Employer. All the constituents joined in pre-tendering process only to secure the project work by showing their respective expertise and capabilities. This understanding between the constituents of the JV enabled and strengthened the JV for pre- qualification of the tender. Further the aforesaid fact, of distribution of income, clearly shows that: i. the members of the JV did not join together for the purpose of producing a common income ii. each member is independently responsible for executing its part of work through its own resources and also bears the risk of its scope of work iii, each member earns profit or incurs losses, based on performance of the contract falling strictly within its scope of work and; iv. the control and management of the JV is not unified and common management is only for the inter-se coordination between the consortium members for administrative convenience 1~ That the JV did not execute any work ....
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....f PCL SUNCON JV & PLL STlTCO JV vide order dated 11th April 2012 in ITA No. 149- 160/Hyd/2008 and in M/S. Ivrcl-Kbl (Jv), Hyderabad vs Department Of Income Tax on 14 May, 2012 ITA Nos. 1197, 1198, 1199/Hyd/2011 has followed the earlier order of the Tribunal dated 4.11.2011 in the case of M/s. Limak Soma Joint Venture (cited supra). It is further submitted that the Income Tax' Department accepted the above position and not made any addition in Assessment Year 2012-13 of M/s. Ivrcl-Kbl (Jv) which is evident from para-2 of W.P. (e) No-31680 of 2015 M/S. Ivrcl-Kbl (Jv) Hyderabad V. Department of Income Tax before Hon'ble Andhra Pradesh High Court it was inter alia submitted that: .......The assessment order dated 26.02.2015, passed in respect of M/s.IVRCl-KBL (JV) for the assessment year 2012-13, records that the assessee was a joint-venture executing civil contract works; they had filed their return of income, for the assessment year 2012- 13, electronically declaring their total income as Rs.Nil; they had claimed refund of Rs. 23,39,240/-; their case was selected for scrutiny, and subsequently a notice under Section 143(2) of the Income Tax Act, 1961 (for short the Act) w....
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....unds and submit as under:- Brief Background / modus operandi followed the assessee: Functionality/Business profile of JV 1. At the cost of repetition it is stated that the assessee (i.e. Joint Venture) was formed between M/s. NCC Limited (NCe), M/s. Sainik Mining and Allied Services Limited (SMASL) and M/s. Jalram Transport (JRT) to execute the mining works like, OB Removal, loading, transportation and other same kind of related work given by Mahanadi Coalfield Limited (MCL), a subsidiary of Coal India limited. A copy of Notice inviting tender-639 (NIT-639) issued by MCL dearly stating the scope of aforesaid work and Letter of Acceptance for NIT-639 is attached herewith as Annexure-t. A bare perusal of NIT-639 and Letter of Acceptance of NIT-639 clearly shows that the assessee was contracted by MCL for Machenical Transfer of Coal into Tippers at proposed stock yard and Transportation of Coal from Stock Yard No. 8 to Jagannath Siding-I, Ill, IV and VI. In this connection it also pertinent to mention here that the during the relevant assessment year the JV has not either carried out on its own or outsourced any business activity other than activities mentioned in NIT-639. 2. In....
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..... Prices of the activity to be performed by the JV were duly mentioned in the letter of acceptance of NIT-639, hence the JV was not exposed to contract rate risk. Operational Risk d. As all the Prices of the activity to be performed by the JV were duly mentioned in the letter of acceptance of NIT-639 therefore JV was having no bargaining power and the prices were locked. However in future the cost of inputs may fluctuate but as the prices of services were fixed therefore the JV was not subject to operational risk which may arises due to fluctuation in prices of inputs such as cost of diesel, wages of drivers, cost of spare parts etc as the same will be borne by the respective JV partners. 6. That during the relevant assessment year the JV outsourced the contract to the JV partners details of which are as under: Name of party Amount in Rs. %of share in Revenue NCC 4,65,74,163/- 17.93 SMASL 13,46,23,119/- 51.83 JRT 7,85,44,157/- 30.24 Total 25,97,41,439/- As the above transaction fall within the purview of section 40A(2)(b) and the aggregate of such transactions was more than Rs. 20.00 Crore, therefore it is submitted that the JV entered into Specified D....
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....2. Rule 10A(ab) provides the meaning of uncontrolled transaction which is reproduced herein below: Rule 10A(ab) "Uncontrolled Transaction" means a transaction between the enterprises other than associated enterprises, whether resident or non-resident. Rule 10AB. For the purposes of clause (f) of sub-section (1) of section 92(, the other method for determination of the arm's length price in relation to an international transaction or a specified domestic transaction shall be any method which takes into account the price which has been charged or paid, or would have been charged or paid, for the same or similar uncontrolled transaction, with or between non-associated enterprises, under similar circumstances, considering all the relevant facts. Thus from above the "any other method" for the purpose of section 92C(1)(f) would be any method which takes into account the price which has been charged or paid, or would have been charged or paid, for the same or similar uncontrolled transaction, with or between non-associated enterprises, under similar circumstances, considering all the relevant facts, In this connection it is submitted that the exercise of determining the ALP in....
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....nce, the Arm Length Price adjustment was bad and devoid of any merits and is liable to be deleted. 10. Without prejudice to above, as the realm of the determination of Arm Length Price lies in identification and comparability of uncontrolled transaction vis-a-vis controlled transaction, therefore in the case of the appellant JV, the "Comparable Uncontrolled Price Method" (CUP) as mentioned in Section 92C(1)(a) t.w.r. 10B(1)(a) would be the most appropriate method because of the following reasons: (a) The transactions between the appellant JV and Mahanadi Coalfield Limited (MCL) were independent transactions (Le. being transactions between two non associated enterprises); (b) The prices were determined by Mahanadi Coalfield Limited (MCL) an independent government body; (c) The work was awarded through tendering process, therefore the appellant JV has no say in pricing policy determined by the Mahanadi Coalfield Limited (MCL); (d) The price charged for services provided in a comparable uncontrolled transaction was readily available; (e) Therefore the price charged for services provided to Mahanadi Coalfield Limited (MCL) should act as benchmark for comparison as contemp....
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.... sells the same product to an independent enterprise for INR 100. the intra AE transaction cannot but be termed as the arm's length transaction. It is also incorrect to proceed on the basis, as has been done by the TPO, that when TNMM in puts are available, the application of CUP can be rejected. CUP is not a residuary method. As a matter of fact, when perfect CUP inputs are available- as in this case in respect of back to back transaction. that Is the best and inherently most suitable method, as it is a direct method and it hardly leaves any scope for distortion of results by extraneous factors. We reject the plea of the learned Departmental Representative on this point. [Para 5] 11. Without prejudice to above, the comparables taken by the Ld. TPO in para 5:00 of the order passed u/s 92CA(3) are not as per the various requirements of the Income Tax Act, 1961 and Income Tax Rules, 1962. It is pertinent to mention here Rule 108(2) which reads as under: (2) For the purposes of sub-rule (I), the comparability of an international transaction or a specified domestic transaction with an uncontrolled transaction shall be judged with reference to the following, namely:- (a) the....
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....ess model; and the assets and resources employed. It cannot be disputed that the functions performed by an entity would have a material bearing on the value and profitability of the entity. It is, therefore, obvious that the comparables selected and the tested party must be functionally similar for ascertaining a reliable ALP by TNMM. Rule 1OB(2) of the Income Tax Rules, 1962 also clearly indicates that the comparability of controlled transactions would be judged with reference to the factors as indicated therein. Clause (a) and (b) of Rule 10B(2) expressly indicate that the specific characteristics of the services provided and the functions performed would be factors for considering the comparability of uncontrolled transactions with controlled transactions" [Para 20] 12. The comparables selected by the ld. TPO are challenged as under: MINERAL ENTERPRISES LIMITED (i.e. 1s1 Comparable Company) hereinafter referred to as "Comparable-1" i. The Comparable-1 Company was engaged in the multiple business activities such as mineral products, Vessel loading & Unloading and Wind Power Generation. The above fact can be verified from the Financial Statements and Board Report of the Comp....
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....ket. Further it is also necessary to see that wherever there are some differences and such differences should be capable of reasonable accurate adjustment in monetary terms to eliminate the effect of such differences. During the relevant Assessment Year the turnover of the comparable-l from the mining activity was Rs. 492 crores. whereas the turnover of the appellant JV was Rs. 25.97 Crore. hence the turnover of the comparable-I from the mining activity 19.68 times more than of the turnover of the Appellant N. The Hon'ble ITAT Banglore Bench 'C' in the matter of Misys Software Solutions (India) (Private) Limited v. DV. CIT, Cirde-4(1H2}, Bangalore [2017] 83 taxmann.com 121 (Bangalore-Tribl held as under: " From the above Para re-produced from the Tribunal order, it is seen that; in that case, the turnover filter applied was different Le. Rs. 1.00 crore to 200 Crores. The Tribunal has noted another Tribunal order rendered in the case of Willis Processing Services (I) P. Ltd. v, Oy. ClT [2013J 57 SOT 34/32 taxmann.com 18 (Mum Trib. l wherein it was held that the turnover filter hand of Rs. 1 to 200 Crores is bereft of any rationality as the application of this rule does....
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....he assessee company's turnover or more than 10 times of the turnover of the assessee-company is a good filter and by applying the same, we direct the AO/TPO to exclude two companies i.e. Infosys BPC ltd and M/s l & T Infotech Ltd from the list of final comparables by applying higher turnover filter because. the turnover of these two companies is more than 10 times of the turnover of Software Development Segment of the assessee- company. Similarly, in respect of ITES Segment, we direct: the AO/TPO to exclude two companies, i.e., Infosys BOPO ltd and TCS E-Serve Ltd. by applying turnover filter because, the turnover of these two companies is more than 10 times of the turnover of ITES segment of the assessee-company." [Para-9] iii. The market size for the comparable-I is infinite, therefore the revenue and profits of the company can grow up to any limit. whereas the market size 'of the appellant JV is restricted to the work contract awarded by MCL, which is limited to 1095 days. Therefore, it is submitted that size is an important facet of the comparability exercise. It is further submitted that significant differences in size of the companies would impact comparability. i....
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..... Accordingly, this ground stands allowed for statistical purposes. ([Para 6.3.5] v, Therefore from the above it can be said that the comparable-l is functionally different, have high turnover, profits, assets and capital employed and have different risk profile Le. capacity to take or bear more risk in compare to the Appellant JV. Therefore for the purpose of Transfer Pricing study of the appellant JV, the comparable-, does not deserve to be considered as benchmark and liable to be deleted from the list of comparables and should not be consider while calculating the Profit level Indicator (PLI) as per TNM method. SAMRUDDHA RESOURCES LIMITED (i.e. 2nd Comparable Company) hereinafter referred to as "Comparable-2 vi. The company-2 is engaged in the business activity of mining and trading of iron ore fines and lumps. The above fact can be verified from the Financial Statements and Board Report of the Comparable-2 downloaded from the website of Registrar of Companies. A copy of the financials of Comparable-2 downloaded from the website of ROC is annexed herewith as Annexure-5. Whereas the Appellant JV is engaged in loading & transportation of coal, therefore the business activity o....
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....he purpose of Transfer Pricing study of the appellant N, the comparable-z does not deserve to be considered as benchmark and liable to be deleted from the list of comparables and should not be consider while calculating the Profit Level Indicator (PLO as per TNM method. BARMER LIGNITE MINING CO. LIMITED (i.e. 3*d Comparable Company) hereinafter referred to as "Comparable-3" x. The Comparable-3 is a Joint Venture company between Rajasthan State Mines and Mineral Limited (RSMML) a Government of Rajasthan Enterprises and Raj West Power Limited (RWPL) a subsidiary of JSW Energy Limited with equity participation of 51% and 49% respectively. During the relevant assessment year the Comparable-3 was engaged in the business of lignite whether or not agglomerated, excluding jet. The above fact can be verified from the Financial Statements and Board Report of the Comparable-3 down loaded from the website of Registrar of Companies. A copy of the financials of Comparable-3 downloaded from the website of ROC is annexed herewith as Annexure-6. Whereas the Appellant JV was engaged in loading & transportation of coal, therefore the business activity of comparable-3 is different from the busines....
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....It is further submitted that comparable-3 is a Government owned Company- Rajasthan State Mines & Minerals Ltd. (RSMML, a Rajasthan Government Enterprise) owns 51% shares. Government Companies cannot be taken as comparables because they have a social welfare purpose and are not determined by business motives such as profit maximization. In this connection reliance is placed on the judgment of Bombay High Court in ITA No. 2218 of 2013 in the matter of (IT v. ThyssenKrupp Industries India Pvt. Ltd. and judgment of Delhi High Court in the matter of PClT vs. INTERNATIONAL SOS SERVICES INDIA P. LTD. ITA NO. 454/2016 dated 30.05.2017. xii. The Ld. TPO in his filter has chosen the companies having turnover in excess of Rs. 1 crore and related party transaction less than 25% of RPT over sales and cost combined. In nutshell it is submitted that the td. TPO selected the company having RPTs less than 25%, whereas the comparable company in disclosure of related' party I related party transactions has shown the revenue from sale of goods to related party 403.99 crores has against the total turnover of Rs. 403.99 crores to MI5 Raj West Power Limited. Since the comparable-3 has undertaken RP....
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....ITAT, Delhi Bench as mentioned in para- 12{i) (supra)is also relied here, however the same is not reproduced for the sake of brevity. Further the turnover of the company was Rs. 111.50 crores, which is very high in comparison to the turnover of the Appellant JV. xv. The company is subsidiary of well known and famous company Le. Mls larsen And Turbo limited. Therefore the company will get the benefit of the goodwill and image of its holding company. This submission can be verified from the fact that the company does not have any employee. A company being an artificial person, therefore it is very natural and obvious that no business can run without human resources. xvi. The Ld. TPO in his filter has chosen the companies having turnover in excess of Rs. 1 crore and related party transaction less than 25% of RPT over sales and cost combined. In nutshell it is submitted that the ld. TPO selected the company having RPTs less than 25%, whereas the comparable-4 in disclosure of related party / related party transactions has shown the sale of boulders / aggregates of Rs. 111.50 crores to the holding company Le. M/s larsen And Turbo Limited which is close to 100%. Since the comparable-4....
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....me is not reproduced for the sake of brevity. xlx, The profit & loss account of the aforesaid company was not available on the website of the Registrar of Companies. In the absence of Profit & Loss Account of the aforesaid company it is difficult to compare the comparable-5 with the Appellant JV. Further the main source of revenue of the company was from sale of goods therefore the company is not engaged in the service sector as is the case of Appellant JV. In any case, a company engaged in sale of products cannot be compared with a company engaged in providing services. Reliance is placed on the following judgments:- * Weatherford Drilling & Production Services (India) (P.) ttd.vs. DCIT [2017] 77 taxrnann.corn 109 (Ahmedabad - Trib.) ( * DClT vs. ACI Worldwide Solutions (P.) ltd [2017] 84 taxmann.com 216 (Bengaluru - Trib) * ACIT vs. Curam Software International (P.) Ltd[2.017} 82 taxrnann.com 465 (Bangalore - Trib.}, * Netscout Systems Software India {P.} Ltd. vs. DCIT [2017] 80 taxmann.com 177 (Bangalore - Trib.) xx, The Ld. TPO in his filter has chosen the companies having turnover in excess of Rs. 1 crore and related party transaction less than 25% of RPT over sale....
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....was included in their total receipts and due taxes were paid on the net profit earned on each receipt. Since these AEs are assessed to tax in India and are subject to tax at the same rate of tax, there is no loss to revenue and the entire exercise of domestic transaction adjustment is revenue neutral exercise. He, therefore, submitted that the ld. CIT(A) has rightly deleted the addition by applying the CUP method for computation of ALP and he prayed for confirmation of the order of the ld. CIT(A) in this regard. With regard to the other additions made and deleted by the ld. CIT(A), he supports the order of the ld. CIT(A) and requested for confirmation of the order of the ld. CIT(A). 12. We have heard the rival submissions and perused the material available on record. The assessee is a joint venture which came into existence in terms of Joint Venture Agreement dated 08.10.2011 made and executed between three parties, namely, M/s NCC Limited (NCC), M/s Sainik Mining and Allied Services Limited (SMASL) and M/s Jalram Transport (JRT) to bid and execute the tendered work under the name and style of NCC-SMASL-JRT(JV). As per the Article 4 of the Joint Venture Agreement the responsibilit....
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....are Pvt Ltd reported in (2017) 82 taxmann.com 390 (Delhi) whose ratio is as below: "Section 92C of the Income-tax Act, 1961- Transfer Pricing- Computation of arm's length price (Comparables and adjustments/Methods for determination - CUP method) - Assessment year 2007-08 - During relevant previous year, assessee rendered software development services to its associated enterprise - Transactions entered into with AE were back to back transactions in respect of contracts that AE had entered into with independent entities - It was undisputed that contracts were passed on to assessee company and entire amount was also passed on to assessee - On basis of internal. CUP method, assessee claimed that back to back transactions were required to be taken as having been entered into at an arm's length. price - TP-O, however, applied TNMM and made certain addition to assessee's ALP - Whether so far as back to back transactions were concerned, since services rendered by assessee to AE were exactly same as, in effect, rendered by AE to independent parties, price charged for same service by AE from independent end customer was best CUP input for determining ALP - Held, yes - whether, ....
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....or has awarded any sub- contract to any independent entity, so there no internal comparable available with the assessee for working the ALP under the CUP method. The computation of ALP under CUP method is provided in Rule 10B(1)(a) of the I.T.Rules, 1962 which reads as under :- Determination of arm's length price under section 92C . 10B . (1) For the purposes of sub-section (2) of section 92C, the arm's length price in relation to an international transaction [or a specified domestic transaction] shall be determined by any of the following methods, being the most appropriate method, in the following manner, namely :- (a) comparable uncontrolled price method, by which,- (i) the price charged or paid for property transferred or services provided in a comparable uncontrolled transaction, or a number of such transactions, is identified; (ii) such price is adjusted to account for differences, if any, between the international transaction [or the specified domestic transaction] and the comparable uncontrolled transactions or between the enterprises entering into such transactions, which could materially affect the price in the open market; (iii) the adjusted price arr....
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....ses and the cross objection of the assessee is dismissed. 22. In appeal in ITA No.99/CTK/2019 filed for the assessment year 2013-2014, the revenue has raised the following grounds :- 1. On the facts and in the circumstances of the case, the Ld. CIT(A) is not justified in law as well as on facts in rejecting the comparables selected by the TPO for benchmarking and subcontracting of work without mentioning any specific difference in the FAR analysis between the assessee and comparable companies. 2. On the facts and in the circumstances of the case, the Ld. CIT(A) is not justified in law as well as on facts in not appreciating the fact that, comparable are taken by the TPO on the basis of broadly functionally similar under the TNMM method, unlike in the case of CUP method wherein produce and functional comparability are to be strictly matched. 3. On the facts and in the circumstances of the case, the Ld. CIT(A) is not justified in law as well as on facts in holding CUP as best method for determining the arm's length price in the instant case whereas the assessee had not applied CUP and accordingly no such details were available in record before the TPO during the TP audit. ....