TaxTMI 
TaxTMI 
TaxTMI 
2026 (3) TMI 332
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....0, declaring loss of INR 20,18,44,098/-. The case of the assessee was selected for scrutiny and notice u/s 143(2) of the Act was issued on 14.09.2011. Since the assessee was having international transactions with its Associated Enterprises ("AEs"), therefore, a reference was made u/s 92CA of the Act to Transfer Pricing Officer ("TPO") for determination of Arm's Length Price ("ALP") of the international transactions carried out by the assessee. The TPO vide its order dated 22.01.2016, had enhanced the income of the assessee by making transfer pricing adjustment for the transactions with its AEs at INR 3,29,04,214/- which comprises of INR 39,02,614/- adjustments on account of Business Support Services and further adjustment of INR 2,90,01,600/- towards Corporate Guarantee. Thereafter, AO passed draft assessment order u/s 143(3)/144C(1) of the Act dated 30.04.2015 wherein the AO proposed total income to be assessed at INR 29,59,08,060/- by proposing following additions/disallowances:- (i) Disallowance out of ESOP expenses Rs. 39,740/- (ii) Disallowance u/s 14A r.w. Rules 8D Rs. 1,34,19,838/- (iii) Disallowance u/s 40(a)(ia) of commission Rs. 43,00,37,977/- ....
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....smission and uplinking charges paid to Intelsat Corporation, USA by relying on its earlier decision for AY 2009-10, ignoring Explanation 6 to Section 9(1)(vi) which was inserted by Finance Act 2012 w.e.f. 01-06-1976? 5. Whether on the facts and circumstances of the case and in law, the DRP is justified in not approving the proposed disallowance on account of software expenses amounting to Rs. 2,77,350/- by relying on the decision of the CIT(A) for the A.Y. 2006-07 and 2007- 08 without going into merit of the issue. Reliance is placed on this judgment of the Hon'ble Supreme Court in the case of Tata Consultancy Services Vs State of Andhra Pradesh (2004) 271 ITR 401? 6. Whether on the facts and circumstances of the case and in law, the DRP is justified in rejecting M/s Global Procurement Consultants Ltd. & M/s TSR Drashaw as comparables? 7. That the order of the Ld. DRP is erroneous and is not tenable on facts and in law? 8. That the appellant craves leave to add, alter, amend or forgo any ground(s) of appeal either before or at the time of hearing of the appeal?" 7. Ground of appeal Nos. 1, 2 & 3 raised by the Revenue are with respect to ad....
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.... further observed that in the case of the assessee itself in Assessment years 2008-09 & 2009-10, Co-ordinate Bench of Tribunal has deleted the disallowance made under identical circumstances vide orders in ITA Nos. 3865/Del/2014 dt. 16.06.2020 for Ay 2008-09 and CO No. 233/Del/2014 dt. 14.07.2017 for AY 2009-10. Thus, by respectfully following the judgement of Hon'ble Delhi High Court and of the Co-ordinate Bench of Tribunal in the case of assessee itself for immediately preceding assessment years, we find no error in the order of Ld. DRP in deleting the disallowances made by AO u/s 14A of the Act after invoking the provisions of section 14A of the Act. Accordingly, Grounds of appeal Nos. 1 to 3 raised by the Revenue are dismissed. 12. Ground of appeal No.4 raised by the Revenue is with respect to the disallowance of INR 3,44,92,877/- made u/s 40(a)(ia) of the Act on the payment of transmission and uplinking charges paid to Intelsat Corporation, USA which was deleted by ld. DRP. 13. Heard the contentions of both parties at length and perused the material available on record. At the outset, it is seen that the disallowance of similar nature by invoking the provisions of sectio....
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....of transmission and uplinking charges to your honour vide our submission dated 11th March 2013. We reiterate that the provisions of TDS/withholding taxes were fully complied with. The payments were made after obtaining the requisite certificates from the Chartered Accountant as defined in the explanation to section 288B of the Income Tax Act'1961. Copies of Form 15CA/CB issued by an independent chartered accountant were also placed before you. We respectfully submit that there should not be any disallowance on account of non-deduction of TDS/withholding taxes from the payments made to Intelsat Corporation, we are giving below a brief note on the same: During the year under consideration, the assessee Company booked the expense of Rs. 7,81,23,855/- on account of transponder services received from M/s Intelsat Corporation (Intelsat) in terms of its agreement for the use of satellite (transponder capacity). Before we proceed to our specific submission and a fact of the case, we here-in-below submits the nature of transaction entered between the assessee Company and Intelsat Corporation to understand its taxability and application of provisions of section....
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....A and, therefore, the provisions of DTAA entered between India and USA are applicable on Intelsat which are more beneficial to Intelsat. For the year in question, the revenue of transmission and uplinking facilities in the hands of Intelsat Corporation were already held not taxable by the Hon'ble Delhi High Court vide order dated 28/9/2012. The issue whether the recipient of such charges is liable to tax in India is also settled by the Jurisdictional High Court in the case of Asia Satellite Telecommunications Co. Ltd. v. DIT, (332 ITR 340) in favour of the taxpayer. Similarly, such charges were also held not liable to tax in India in view of Article 12(3) of DTAA entered between India and USA in the case of DCIT v. PanAmSat International System Inc (103 TTJ 861 (Delhi). In view of the facts and the legal position stated above, it is clear that the assessee Company had no liability to deduct tax on such payments under section 195 of the Act which provides that any person would liable to deduct tax if the payments made to non-resident are chargeable to tax. When it has already been held be the jurisdictional High Court/Tribunal that such sum is not taxable ....
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....ndia.... (vi) income by way of royalty payable by- (a) The Government; or (b) A person who is a resident, except where the royalty is payable in respect of any right, property or information used or services utilised for the purposes of a business or profession carried on by such person outside India or for the purposes of making or earning any income from any source outside India; or.... (c) Provided that nothing contained in this clause shall apply in relation to so much of the income by way of royalty as consists of lump sum consideration for the transfer outside India of, or the imparting of information outside India in respect of, any data, documentation, drawing or specification relating to any patent, invention, model, design, secret formula or process s or trade mark or similar property, if such income is payable in pursuance of an agreement made before the 1st day of April, 1976, and the agreement is approved by the Central Government. 87a. Explanation 6 - For the removal of doubts, it is hereby clarified that the expression "process" includes and shall be deemed to have always included transmission by satellite (includ....
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....all be deemed to have always included transmission by satellite (including up-linking, amplification, conversion for down-linkiong of any signal). Since the transmission and uplinking charges are covered under the definition of royalty as define under the provision of section 9 therefore any payment made in respect of royalty to a person who is not resident in India, will also be a income deemed or accrue or arising in India. As the expense of transmission and uplinking charges of Rs. 7,81,23,855/- to M/s Intelsat corporation is a deemed income which has arisen in India therefore, the assessee was liable to deduct TDS on this payment, under the provision of section 195 therefore, this payment of transmission and uplinking charges to M/s Intelsat Corporation is not allowable under the provisions of section 4 (a)(i). I am satisfied that the assessee has furnished inaccurate particulars of its income and has concealed its correct income on this issue, therefore, penalty proceedings u/s 271 (1)(C) of I.Tax Act have been separately been initiated." 58. Aggrieved by the draft order of the ld Assessing Officer assessee preferred objection before the ld DRP who vide para No. 7 of ....
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....essee's own case for assessment year 2009 - 10, we direct learned assessing officer to delete the disallowance of Rs. 73843516/- on account of non-deduction of tax at source on Transmission and uplinking charges. Accordingly ground number [6], [7] and [8] of the appeal are allowed. 14. As the facts are identical thus by respectfully following the orders of Co-ordinate Bench of Tribunal in the case of assessee own case for immediately preceding assessment years which are followed by ld. DRP for deleting the disallowance made by the AO, we find no infirmity in the order of ld. DRP and accordingly, the same is hereby, upheld. Ground of appeal No. 4 raised by the Revenue is thus, dismissed. 15. Ground of appeal No.5 raised by the Revenue is with respect to disallowance of software expenses amounting to INR 2,77,350/- deleted by ld. DRP. 16. Heard the contentions of both parties at length and perused the material available on record. The AO has made disallowance of software expenses claimed in the Profit & Loss account by holding that assessee has purchased certain software which are capital in nature. Therefore, the AO has treated the said payment as capital expenditure and af....
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.... "From the submission of the appellant it is clear that the appellant has capitalized certain software purchases on its own. The 'up-gradation of software' and under the head 'other software1 were treated as capital in nature by the AO and depreciation at the rate of 60% was allowed by him. However, on going through the details, it is noticed that these software need regular up-gradation or change as per the requirements of fast changing broadcasting industry. The life of these software are for a shorter period and therefore it cannot be said the same is providing enduring benefit to the appellant. For the AY 2006- 07 also, my predecessor CIT(A)-XVI has allowed such expenditure as revenue expenditure in para 3.2 of the appeal order dated 30.09.2011 in appeal no. 228/08-09. The nature of software purchased and the business of the appellant for which the software so purchased were applied remains the same. In view of this, the expenditure under the head upgradation of software and other software amounting to Rs. 2,07,009/- and 5,58,006/- respectively is held as allowable deduction during the year. AO is directed to delete the addition made in this regard. " ....
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....parables selected by assessee and further included 06 new comparables and worked out the average margin of 24.95% and leading to the adjustment of INR 39,02,614/- towards international transactions related to business support services provided to its AE's. 20. The Six new comparables selected by TPO are as follows:- i. APITCO Limited ii. Cameo Corporate Services Limited iii. Global Procurement Consultants Limited iv. HCCA Business Services Pvt. Limited v. Quadrant Communication Limited vi. TSR Darashaw Limited 21. While disposing the objections of the assessee, ld. DRP confirmed the inclusion of APITCO Ltd; Cameo Corporate Services ltd.; HCCCA Business Services Pvt. Ltd. and Quadrant Communication Ltd. and, accepted the assessee's contention and excluded 02 comparables selected by TPO i.e. M/s. Global Procurement Consultants Ltd. & M/s. TSR Darashaw. Thereafter, TPO has passed the order giving effect wherein the adjustment was reduced to INR 21,90,889/- with respect to business support services. Against the inclusion of 04 comparables, the assessee is in appeal whereas for the exclusion of 02 comparables, as directed by Ho....
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....ution agendas. Since procurement services are in the nature of business support services, as per ld. CIT DR it is a correct comparable. Ld. CIT DR further submits that Hon'ble DRP has failed to appreciate these facts and incorrectly held that the company is functionally dissimilar and thus, is not a valid comparable. Accordingly, Ld. CIT DR prayed for the inclusion of the said company in the final set of comparables. 25. On the other hand, Ld. AR submits that company, M/s. Global Procurements Consultancy Ltd. is providing technical services to World Bank and undertaking consultancy negotiations and hands to hands services which altogether different from the business support services provided by the assessee to its AEs. Ld. AR submits that as per the information stated by the company on its website and the Annual Report, the company is engaged in provision of procurement services that vary from various industries and with its strategic partnership with various internationally recognized bodies, the scale at which it operates is completely different from the functions performed by the assessee. Ld. AR further drew our attention to the judgement of the Co-ordinate Bench in the case....
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....to its AE. It is further observed that in the case of CIT vs Philip Morris Services India S.A vs DCIT [2018] 95 taxmann.com 156 [Del.Trib.], the Co-ordinate Bench has held that the company is not comparable which order sought confirmed by the Hon'ble High Court as reported in 10 taxmann.com 376. Further in the case of Intercontinental Hotels Group (India) P. Ltd. vs DCIT reported in 126 taxmann.com 313 [Del.Trib.], the Co-ordinate Bench of the tribunal has held that the activity of TSR Darashaw Limited is as non-comparable. The relevant observation as contained in para 19 are as under:- 19. "The next concern which the Ld.AR for the assessee claims is not comparable is TSR Darashaw Ltd. on the ground that the same operates in three segments i.e. Registrar and Transfer Agent Activity, Record management and Payroll and Trust Fund Activity Payroll, which functions are not similar to the Marketing and Ancillary Management Support Services provided by assessee to its AE. The case of the assessee is the concern, which acts as depository and share registrar cannot be held to be functionally comparable to the assessee. Our attention was drawn to the Annual Report, wherein it is cle....
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....mounting to Rs. 7,44,625 computed in accordance with the directions of the Hon'ble ITAT, Delhi in the Appellant's own case for the AY 2006-07 as against the original claim of Rs. 39,740. 3. That on the facts of the case and in law, the Ld. TPO/AO has erred in not discharging the statutory onus to establish that any of the conditions specified in clause (a) to (d) of section 92C (3) of the Act have been satisfied before disregarding the arm's length price determined by the Appellant and proceeding to determine the arm's length price.] 4. That Ld. AO erred in enhancing the ALP by Rs. 21,90,889/- in respect of the international transaction pertaining to provision of business support services ('BSS') to its associated enterprises(AE) by arbitrarily rejecting the comparables adopted by the Appellant and by selecting the comparables which were not comparables on the basis of FAR( functions performed, assets employed and risk assumed) 5. That the Ld. AO/Ld. TPO has grossly erred in making an addition of Rs. 2,90,01,600/- in respect of the alleged international transaction of provision of Corporate Guarantee on the ground that the Appellan....
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....ase for assessment year 2006 - 07 and 2007 - 08. The order of the honourable High Court for assessment year 2007 - 08 reported in 99 taxmann.com 401 (Delhi)/[2017] 398 ITR 57 (Delhi) has held as under:- "2. Learned counsel for the assessee appearing on advance notice, on the other hand, urges that there is no infirmity with the approach of the Income-tax Appellate Tribunal and that this Court had on July 12, 2016 given reasons for not entertaining the appeal which was not dismissed merely on the ground of delay. The previous order of the Court records inter alia as follows : "7. As far as this issue is concerned, it is pointed out by the learned counsel for the assessee that the issue stands covered in favour of the assessee and against the Revenue by the order of this Court dated August 18, 2015 in I.T.A. No. 107 of 2015 (CIT v. Lemon Tree Hotels Ltd.). The Court had affirmed the order of the Income-tax Appellate Tribunal deciding the issue in favour of the assessee in the said case where the addition made by the Assessing Officer by way of disallowance of the expenses debited as cost of ESOP in profit and loss account was deleted by the Income-tax Appellate Trib....
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....on 263 of the Act." 4. The Special Bench ruling in Biocon Ltd. (supra) considered the matter rather elaborately and also examined all the previous decisions. It scrutinised different accounts of ESOPs and the points of time when they could have vested. The observations of the Special Bench in this regard, inter alia, are as follows (page 623 of 25 ITR (Trib)) : "When we consider the facts of the present case in the backdrop of the ratio laid down by the Hon'ble Supreme Court in Bharat Earth Movers v. CIT [2000] 245 ITR 428 and Rotork Controls India (P.) Ltd. v. CIT [2009] 314 ITR 62 (SC), it becomes vivid that the mandate of these cases is applicable with full force to the deductibility of the discount on incurring of liability on the rendition of service by the employees. The factum of the employees becoming entitled to exercise options at the end of the vesting period and it is only then that the actual amount of discount would be determined, is akin to the quantification of the precise liability taking place at a future date, thereby not disturbing the otherwise liability which stood incurred at the end of the each year on availing of the services. ....
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.... employee or employees)' shall be taken as fringe benefit. The Explanation to this clause clarifies that for the purposes of this clause,-(i) 'specified security' means the securities as defined in clause (h) of section 2 of the Securities Contracts (Regulation) Act, 1956 (42 of 1956) and, where employees' stock option has been granted under any plan or scheme thereof, includes the securities offered under such plan or scheme. Thus it is discernible from the above provisions of the Act that the Legislature itself contemplates the discount on premium under ESOP as a benefit provided by the employer to its employees during the course of service. If the Legislature considers such discounted premium to the employees as a fringe benefit or 'any consideration for employment', it is not open to argue contrary. Once it is held as a consideration for employment, the natural corollary which follows is that such discount (i) is an expenditure; (ii) such expenditure is on account of an ascertained (not contingent) liability; and (iii) it cannot be treated as a short capital receipt. In view of the foregoing discussion, we are of the considered opinion that discount on s....
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....ingly dismissed." 13. In view of this, we dismiss ground number (1) of the appeal of the learned assessing officer." 38. As the facts are identical and ld. DRP has also followed the judgement of hon'ble Delhi high court in the case of assessee itself for preceding assessment years, therefore, by respectfully following the judgment of hon'ble jurisdictional high court and of the Coordinate Bench for preceding assessment years, we allow Ground No.2 raised by the assessee and direct the AO to delete the addition. 39. Ground of appeal Nos. 3 & 4 raised by the assessee are with respect to the adjustment made in Arm's Length Price ("ALP") with respect to business support services rendered to its AEs. 40. The facts pertaining to this issue have already discussed at length in the Revenue's appeal while deciding Ground of appeal No.6 in Revenue's appeal. 41. Before us, in this Ground of appeal, main contention of the assessee is that TPO has included one company namely APITCO Ltd. in the final set of comparables which as per assessee was not a valid comparable and deserves to be excluded. Ld.AR for the assessee submits that APITCO Ltd. is purely a Government Company and....
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.... S.A v. DCIT (2018) 95 taxmann.com 156 (Delhi -Trib). * Virginia Transformer India (P.) Laid. v. ITO [2017] 84 taxmann.com 245 (Delhi-Trib): * International SOS Services India (P.) Ltd. v. DCIT (2016) 67 taxmann.com 73 (Delhi-Trib) * CIT v. Principal Global Services (P) Ltd [2018] 95 taxmann.com 315 (Bombay):" It is submitted that the assessee is providing only simple support services whereas the services provided by APITCO Ltd., are very diverse and high-end ones rendering APITCO Ltd., non-comparable with the assessee. 9. Moreover, APITCO Ltd. was formed by the key national level financial institutions in association with state-level institutions and banks, and accordingly being a government enterprise, it was established to provide technical services to other Government companies and body corporate. In this regard, reliance is placed on the ruling of the Hon'ble Bombay High Court in the case of Commissioner of Income-tax-2, Pune v. Principal Global Services (P.) Ltd. [2018] 257 Taxman 244 (Bombay), wherein it has been held that customer profile of comparable being completely different inasmuch as the comparable dealt with Governmen....
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....so engage NDTV for specific projects on a need basis. Financial services NDTV is responsible for formulation and implementation of accounting policies and guidelines customized for local requirements. NDTV undertakes ongoing financial controlling, financial reporting and MIS activities for its associated enterprises.. NDTV is involved in preparing business plans, budgets and forecasts for these enterprises. The Company provides also provides services such as treasury and procurement activities, ERP maintenance, audit and accounting services. Information Technology services The Company is the provider of IT services to its associated enterprises. These support services are in the nature of server support, infrastructure support and user support. Along with this, NDTV also provides internet, email and back up facilities to its associated enterprises. Administration services NDTV is engaged in providing various general administration support services to its associated enterprises. NDTV is responsible for security of personnel, maintenance NDTV is engaged in providing various general administration support services to its of office ....
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....arable companies so selected is considered capable of tolerating minor variations in the FAR analysis of the comparables. The selection of this method is resorted to for this very purpose and the method is robust enough to tolerate minor variations if any. It is a fact that a perfect near identical comparable company is a rarity and generally can be said to be a virtually impossible condition incapable of being fully fulfilled. We are of the view that it is for this very purpose that TNMM as a method is often resorted to. The minor difference if any are addressed by comparing net profitability of the comparables. Thus broad comparability of a fairly large number of comparable companies can further ensure that minor variations if any are offset by taking a fairly large sample." 46. Ld. CIT DR thus, submits that the TPO / AO has rightly included the APITCO ltd. as a valid comparable and he prayed accordingly. 47. In re-joinder, Ld.AR for the assessee submits that APITCO Ltd. cannot be held as a valid comparable and the judgement of Bangalore Bench in the case of Astra Zeneca Pharma India Ltd. (supra) relied upon by Ld. CIT DR, had not considered the judgement of Hon'ble Jurisdi....
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....2, it is found that the APITCO is held by public share holder whereas the assessee is held by Private Limited Company. Services description suggests that APITCO works predominantly on government initiative project. Thus, the ratio laid down in the following judgments suggests that the APITCO cannot be a good comparable. * Terex Equipment (P.) Ltd. v. ACIT [2019] 104 taxmann.com 323 (Delhi - Trib.); * DCIT v. Terex India (P.) Ltd. [2019] 104 taxmann.com 281 (Delhi) * Philip Morris Services India S.A v. DCIT [2018] 95 taxmann.com 156 (Delhi - Trib.); * Virginia Transformer India (P.) Ltd. v. ITO [2017] 84 taxmann.com 245 (Delhi - Trib.); * International SOS Services India (P.) Ltd. v. DCIT [2016] 67 taxmann.com 73 (Delhi - Trib.); * CIT v. Principal Global Services (P.) Ltd [2018] 95 taxmann.com 315 (Bombay); 9. Further, it is found that more than 75% of the Revenue earned by the APITCO in the Financial Year 2011-12 was from the activities like Skill Development, Cluster Development, Research Studies, Micro Enterprises Development, Environmental Management etc. But the assessee is only engaged in providing Project Managem....
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....basis of similarity with the controlled transaction entity. Comparability of controlled and uncontrolled transactions has to be judged, inter alia, with reference to comparability factors as indicated under rule 10B(2) of the Income Tax Rules, 1962. Comparability analysis by the transactional net margin method may be less sensitive to certain dissimilarities between the tested party and the comparables. However, that cannot be the consideration for diluting the standards of selecting comparable transactions/entities. A higher product and functional similarity would strengthen the efficacy of the method in ascertaining a reliable arm's length price. Therefore, as far as possible, the comparables must be selected keeping in view the comparability factors as specified. Wide deviations in profit level indicator must trigger further investigations/analysis. 44. Consideration for a transaction would reflect the functions performed, the significant activities undertaken, the assets or resources used/consumed, the risks assumed. Thus, comparison of activities undertaken /functions performed is important for determining the comparability between controlled and uncontrolled tran....
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....s, allowed. 54. Ground of appeal No.5 raised by the assessee is with respect to the addition of INR 2,90,01,600/- made by making adjustment by holding provision of Corporate Guarantee as international transaction. 55. Ld. AR for the assessee submits that assessee is not providing any type of corporate guarantee during the year under appeal. In May, 2007, NDTV raised Coupon Bonds which were due in 2012. In AY 2008-09, when for the first time the issue of corporate guarantee was arose, special bench was constituted to decide whether a corporate guarantee would constitute an international transaction u/s 92B of the Act. The Special Bench in terms of its order dated 24.08.2017 has held as under: (1) Corporate Guarantee "The present issue is with respect to Step-up Coupon Bonds of USD 100 Million issued by the Assessee's U.K. subsidiary M/s NDTV Networks PLC4 on 30 May 2007, outside India to various investors. The Assessee gave an undertaking in connection with this to provide a guarantee for and on behalf of NNPLC, as and when required. Subsequently, in November 2009, NNPLC repurchased the Step up Coupon Bonds, which were due in 2012. At the outset,....
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....erbook Volume 4): c. BECAUSE the net effect of first the Regular Bench making a reference to the Special Bench and then Special Bench by way of the impugned order dated 23.08.2017 is that the Revenue would never get to argue the matter on merits and would be precluded from placing and referring to the material on record to demonstrate as to how in the facts of the present case. Corporate guarantee provided by the Assessee though couched on an "undertaking" wat an international transaction warranting transfer pricing adjustment as per provisions of Chapter X of the Act. In this regard, it is pertinent to point out that after the passing of Order dated 23.08.2017, the Regular Bench would be bound by the order of the Special Bench and would never go into the peculiar facts of the Present case, on merits." The Department Appeal came to be dismissed on 19 January 2018 (Kindly refer Pe 934 of Paperbook Volume 4). The judgement of the High Court was also challenged before Hon'ble Supreme Court by the Department by way of a Special Leave Petition (Civil) Diary No. 38568/2018, inter alia, on the following ground (Kindly refer Ground VII of SLP at Page 969 of t....
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....by giving an undertaking would amount to an international transaction, as envisaged under Section 92B of the Act, according to Mr. Rai, is an issue which would necessarily have to be examined and evaluated by the TPO. 11. However, and as we view Para 63 of the order of the Tribunal, we find that the same does not render any clarity on this aspect. A bare reading of Para 63 indicates that the Tribunal's terms of remit are couched in extremely broad terms and evidently fail to clarify that the solitary question which remained for consideration was whether the obligation incurred by giving on undertaking would amount to an international transaction and if the answer to the above be in the affirmative the consequential 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. ....
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....rms of order dated 16.11.2018 placed at page 978 of the Paper Book. 57. Ld.AR further submits that Co-ordinate Bench in AY 2008-09 had sent the issue of corporate guarantee to the file of the AO/TPO. Against such findings, assessee preferred appeal before Hon'ble jurisdictional High Court where the Hon'ble High Court in ITA NO. 204/2020 had modified the order of the Tribunal and gave following directions:- 9. "Mr. Jolly, learned senior counsel, who appeared for the appellant principally contended that once the Special Bench of the Tribunal had come to hold that the transaction was not a corporate guarantee, there was clearly no occasion or justification for the matter being remanded to the TPO. According to Mr. Jolly, the nature of the international transaction having already been ruled upon, there was no occasion for the matter being remitted and it was thus incumbent upon the Tribunal itself to examine the issue. 10. Mr. Rai, learned counsel appearing for the respondents. however, draws our attention to the conclusions which were ultimately rendered by the Special Bench and which had held that while the transaction did not answer the attributes of a corporate....
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....are kept open. 16. While parting with this appeal we were informed that in the absence of any order of restraint operating on this appeal, the AO had in fact transmitted the matter for the consideration of the TPO for examining whether the transaction would fall within the ambit of Section 92B of the Act and that pursuant to the above, and acting in terms of the directions framed by the Tribunal, a final order came to be passed by the TPO which led to the drawl of a draft assessment order by the AO. 17. We had in terms of order of 11 January 2022 provided that the aforesaid exercise would abide by the final result on the instant appeal. Since we have set aside the principal direction of remit framed by the Tribunal and a de novo exercise in liable to be undertaken by the 40 the order of the TPO as well as the draft assessment order, shall also consequently stand set aside." 58. Ld.AR submits that since the matter has been sent back by Hon'ble Delhi High Court to the file of AO/TPO to decide whether corporate guarantee is an international transaction or not which is yet to be decided by the AO/TPO, therefore, the issue in the present appeal being identical, may ....