TaxTMI 
TaxTMI 
2025 (2) TMI 193
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....peal and impugns the validity of the judgment of the Income Tax Appellate Tribunal [Tribunal] dated 16 June 2020. We had by our order dated 09 February 2024 admitted this appeal on the following questions of law: "(a) Whether, on the facts and in the circumstances of the case and in law, the Income Tax Appellate Tribunal ["ITAT"] erred in restoring the issue pertaining to the addition/adjustment made qua alleged corporate guarantee to the file of the Assessing Officer ["AO"]? (b) Whether on the facts and in the circumstances of the case and in law, the ITAT erred in completely ignoring the binding order dated 24 August 2017 passed by the Special Bench of the ITAT (confirmed by this Court) which held that the subject transaction was an ....
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....international transaction as defined under Section 92B of the Act. 5. Aggrieved by the aforesaid, the appellant is stated to have approached the Commissioner of Income Tax (Appeals) [CIT(A)], which vide its order of 29 April 2014, while upholding the view as expressed by the AO, restricted the adjustment to 40% of the additions that were made. This led to the appellant as well as the Revenue approaching the Tribunal. The Tribunal is stated to have constituted a Special Bench to determine whether a corporate guarantee would constitute an international transaction. That reference came to be disposed of by the Special Bench on 23 August 2017 in the following terms: "The Ld. AR submitted at the outset that the question proposed for considera....
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....ce. The second impugned order passed by the Hon'ble President, ITAT dated 24.8.2017, directs that the matter be restored to the Division Bench for adjudication, in accordance with law. It also records that the Special Bench having decided the question (reference), was disbanded. The cross-appeals filed by the Revenue and the Assessee, therefore, have to be now listed before the Division Bench and decided. The petitioner herein would have to await the decision of the Division Bench, and, if required, challenge the same as per the statute. In these circumstances, we are not inclined to issue notice in the present writ petition. We clarify that we have not commented on the merits and all issues and contentions are left open. The pe....
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....s an international transaction does not arise in the instant appeal. Therefore the special bench returned the finding to be placed before the President of the ITAT. He therefore submitted that when the special bench says that the assessee only incurred an obligation by giving an undertaking which is short of guarantee but not a guarantee the learned assessing officer should have accepted it and could not have proceeded to make the adjustment. He further referred to the order of the President ITAT dated 24/8/2017 wherein after taking the order of the special bench into account it was stated that the undertaking given by the assessee was not the corporate guarantee and when there is no corporate guarantee provided in this case the question re....
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....ing Officer, we also restore the matter back to the file of the learned assessing officer so that appropriate reference could be made to the TPO. We leave all other issues open and also grant liberty to the assessee to agitate them before the learned assessing officer/TPO. The authorities below will pass an appropriate order after granting an opportunity of hearing to the assessee. Accordingly ground number three and four of the appeal of the assessee as well as ground number four of the appeal of the AO are partly allowed." It is aggrieved by the aforesaid terms of remand which led to the filing of the instant appeal. 9. Mr. Jolly, learned senior counsel, who appeared for the appellant principally contended that once the Special Bench o....
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....onsequential transfer pricing adjustments that may be warranted. 12. While it was suggested by Mr. Jolly that in view of the above, the matter may be examined by the Tribunal itself, we find that the same may not be the appropriate or prudent process to adopt since the authorities below would in the first instance have to firstly examine and render a finding as to whether the obligation which the Special Bench spoke of amounts to an international transaction. 13. In our considered opinion, therefore, the end of justice would merit that the matter being remanded to the AO with the clarification that the remit shall be confined to examining whether the undertaking of the obligation in question amounts to an international transaction, to be ....