2024 (8) TMI 1671

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....filing the appeal is condoned. The application shall stand disposed of. ITA 410/2024 1. The Commissioner of Income Tax impugns the order of the Income Tax Appellate Tribunal ["Tribunal'] dated 10 April 2023 and posits the following question for our consideration:- "Whether on the facts and circumstances of the case, the Hon'ble ITAT erred in holding M/s NCR Corporation India Pvt. Ltd. is not PE of the assessee without appreciating the facts that it is working mainly or wholly on behalf of the assessee and concludes contracts and secures order mainly or exclusively for the assessee?" 2. We note that the issue of whether a Permanent Establishment existed in the relevant Assessment Year becomes academic in light of the fol....

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....iates. In India, NCR GSL has appointed a group entity namely, NCR Corporation India Pvt. Ltd. for executing software products and services and hardware services in exchange of payments of CIPL distribution activities. The say of the assessee is that sale affected in India is principal to principal. There is no evidence placed by the authorities below that the sales were affected through NCR Corporation India Pvt. Ltd. since no invoice was raised in the name of the assessee by the Indian customers. Moreover, the Revenue failed to rebut the fact that impugned transaction of sale of software/hardware was undertaken outside India to group company in India and were subjected to transfer pricing scrutiny in the hands of the alleged PE and same wa....

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....ricing analysis does not adequately reflect the functions performed and the risks assumed by the enterprise. In such a case, there would be need to attribute profits to the PE for those functions/risks that have not been considered. The entire exercise ultimately is to ascertain whether the service charges payable or paid to the service provider (MSAS in this case) fully represents the value of the profit attributable to his service. In this connection, the Department has also to examine whether the PE has obtained services from the multinational enterprise at lower than the arm's length cost? Therefore, the Department has to determine income, expense or cost allocations having regard to arm's length prices to decide the applicabili....