TaxTMI 
TaxTMI 
2026 (2) TMI 369
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....lable on record and by calling the information and documents from the Assessee as well as by making own inquiry in the data base or otherwise. 4. It is submitted by Shri. Sharma that the ITAT was not justified in admitting the additional ground of the Assessee for the first time which has not been raised before any of the lower authorities though the ground pertains to only of facts and not question of law. 5. It is further submitted that the ITAT was not justified in admitting the additional ground of the Assessee even though the Assessee has not furnished any good reason for omission of such ground in the original Appeal memo and the reasons which prevented it in not raising the ground before the lower authorities. It is further submitted that the ITAT was not justified in appreciating the fact that the additional ground raised to treat the Associated Enterprises as Tested Party instead of Assessee is essentially a question of fact and that only question of law alone could be raised before the ITAT for the first time though not brought before the lower authority. 6. It is further submitted that the ITAT erred in admitting the additional ground of the Assessee to treat th....
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....ld AR for assessee relied on the decision of Hon'ble Supreme Court in National Thermal Power Corporation Ltd (229ITR 383), Jute Corporation of India (187 ITR 688), and decision of Delhi High Court in GE Money Financial Services Pvt Ltd Vs PCIT in ITA No.662/2016 dated 31.08.2016, Mumbai Tribunal in Pfizer Limited Vs ACIT in ITA No. 3729 & 3424/M/2008 dated 06.11.2015 and JCIT Vs Grasim Industries MA No. 247/M2010 in ITA No.6253/M/1999, CIT v/s S. Nellippan [66 ITR 722(SC)], Ahmadabad Electricity Company and Godavari Sugar Mills Ltd. v/s CIT [199 ITR 351(Bom)] and Inaroo Ltd. v/s CIT [204 ITR 3129(Bom)]. The ld AR argued the assessee is entitled to raise additional ground of appeal before the Tribunal, even though the claim has not been made either before Income-tax Officer/Assessing Officer or the First Appellate Authority. It was further argued that the additional ground of appeal raised by assessee is purely legal in nature. All the facts related with the additional ground of appeal, are available on record. On the other hand, ld. DR for the Revenue strongly opposed the admission of addition ground of appeal at the second appellate stage. The ld. DR for the Revenue argued that in....
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....ith whom, the assessee has entered into international transaction are not least complex entity as they have their own trademark as well as technical knowhow. The assessee used both these intangible for its business activity and for which the assessee compensate them. Reliable date relating to comparable is not available in this case. The additional ground of appeal raised by assessee is absolutely factual in nature and allowable under law. The decisions relied by ld AR for the assessee are distinguishable on facts of the present case. 7. We have considered the rival submission of the parties on the admission of additional ground of appeal. The assessee in the application for admission of additional ground of appeal has categorically contended that the additional ground of appeal is raised in view of the additional evidence submitted before the Tribunal. The assessee has referred various decisions of superior courts. In the additional ground, the assessee has categorically mentioned that AE's is least complex entity involved in supply of raw-material, packing material and semi-finished goods to the assessee, which entered into transaction in capacity of low risk manufacture....
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....igh Court in Ultratech Cement Ltd. vs. ACIT (supra) while dealing with the additional ground of appeal related to the claim of deduction u/s 80IA which was not claimed by the assessee while filing the return of income. The Hon'ble Court held that it is sine qua non provided in sub-section (7) of section 80IA of the Act is the furnishing along with return of income, a report of audited account in Form No.10CB as required under Rule 18BBB(3) of the Act. The Form 10CCB which is required to be filed along with return of income as various details to be filed including the initial AY from which the deduction is being claimed, the nature of activities carried out with regard to the infrastructure facility, namely, whether it is for developing or developing and operating or for developing, operating and maintaining the new infrastructure facility. It is only on the examination of these details as submitted by the Auditor in Form No.10CCB that the claim of deduction can be considered. The Court further held that in case no Form No.10CCB is filed by the appellant/assessee, therefore, there is no evidence on record for subject AY to allow the claim. 11. We have seen that, undisputedl....
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....has approached this court against the observation and findings of the ITAT-in para 10 to 18 to the effect that the foreign AE cannot be considered as tested party. Reliance is placed upon section 92B to contend that there is nothing in the provision inhibiting such consideration. This court notices that for re-consideration and determination of the appropriate method as well as appropriate comparable is and the tested party, it would be convenient and appropriate for the TPO to consider the question which the assessee as in the present case. The TPO is therefore directed to overlook and not feel bound by the observation of the Tribunal and render finding on merit of the issue." 12. In view of the above factual and legal discussion, we are of the view that whole intent and purpose of the transfer pricing provision is first select the most appropriate comparable/tested party and thereafter, by applying the most appropriate method to determine arm's length price (ALP). Considering the fact that assessee has not raised the issue related with the selection of comparable as AE's either before the transfer pricing officer or before first appellate authority, and has rais....