TaxTMI 
TaxTMI 
2023 (6) TMI 1543
X X X X Extracts X X X X
X X X X Extracts X X X X
....ted position that adjudication in any one year on an issue shall apply to other years also since there was no change in facts or law except figures. With the consent of both sides, the assessee's appeal for AY 2015-16 is taken as the lead year for deciding the main issue of Transfer Pricing, and we proceed with the adjudication of all these appeals by adjudicating the appeal for AY2015-16. ITA. NO. 1464/Mum/2021 (AY. 2015-16) 2. This is an appeal preferred by the assessee against the order of the Assessing Officer dated 28.06.2021 for AY. 2015-16 passed u/s 143(3) r.w.s. 263/144C(13) of the Income Tax Act, 1961 (hereinafter "the Act"). 3. The main grievance of the assessee is against the action of the Ld. Transfer Pricing Officer (TPO)/Ld. Dispute Resolution Panel (DRP) in rejecting the application of Transactional Net Margin Method (TNMM) as the Most Appropriate Method (MAM) as adopted by the assessee for benchmarking the International Transaction in respect of its Export of Chemical Additives to its Associated Enterprises (AEs) and instead adopting the CUP as the MAM (by relying on the direction of Ld. DRP for AY. 2009-10) and thus making Transfer Pricing adjustment of R....
X X X X Extracts X X X X
X X X X Extracts X X X X
....m's length nature of the transactions of Export of chemical additives aggregating Rs. 94,02,10,548/-. The assessee had applied TNMM as MAM and showed that its Margin was 11.31% (refer page 180 of the paper-book) and Margins of the comparables selected by the appellant was shown as 7.41% (refer page 302 of the paper book). And during the transfer pricing proceedings, the TPO asked the assessee to provide updated margins of the comparables as per TNMM and the justification of the margins. Pursuant, to it, the assessee submitted the reply vide letter dated 8 October 2018 (refer page No. 301 to 307 of the paper-book). However, the TPO rejected the same and proceeded to adopt CUP as the MAM relying upon the earlier directions issued by the Ld. DRP in Assessment Year 2009-10 (refer page nos. 8-9 of the TP Order dated 29 March 2019). Further, while deciding on the alternative ground about the need to make adjustments for quantifiable / non-quantifiable differences while applying CUP, the TPO has relied upon directions issued by the DRP in assessee's own case for Assessment Year 2013 14 (please refer to page Nos. 15 to 22 of the TP Order). Thus, the TPO arrived at a Transfer Pricing ad....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ase of the assessee [M/s. Lubrizol India Pvt. Ltd. Vs. ACIT-LTU for AY. 2005-06, 2006-07 & 2007-08 decided on 20.11.2019] wherein the Tribunal upheld the action of the assessee adopting TNMM as the MAM for benchmarking the International transaction of export of chemical additive to its AE's and did not accept the action of TPO/DRP adopting CUP Method as the MAM. It was pointed out by the Ld. AR that this Tribunal in other assessment year viz, AY. 2009-10, 2010-11 & 2012-13 as well as 2013-14 has followed the decision of the lead case for AY. 2005-06 onwards (supra). Therefore, according to the Ld. AR, the TPO/Ld. DRP erred in rejecting the application of TNMM as the MAM adopted by the assessee for benchmarking the International Transaction in respect of its export of chemical additives to its AE's. Therefore, according to him, the issue is squarely covered by the decision of this Tribunal in assessee's own case for all the assessment years before us. 6. Per contra, Shri Aditya M Rai, Ld. CIT-DR submitted that principle of res-judicata does not apply in Income Tax proceedings. Therefore, even if, the department has accepted the assessee's action in an earlier year for benchmar....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he case Bharat Sanchar Nigam Ltd. Vs. Union of India reported in (2006) (282 ITR 273), has held as under: - "Where facts and law in a subsequent assessment year are that same, no authority whether quasi-judicial or judicial can generally be per-mitted to take a different view. This mandate is subject only to the usual gateways of distinguishing the earlier decision or where the earlier decision is per incuriam." 9. We find that the assessee has been consistently adopting the TNMM method as MAM for benchmarking the International transaction as in the past years. And the consistent action of assessee adopting TNMM has been duly accepted by the Department in AY. 2002-03 to AY. 2004-05 as well as AY. 2008-09 & 2011-12. And the Tribunal has accepted the assessee's action of benchmarking the International transaction by adopting the method of TNMM for AY. 2005-06 to AY. 2007-08. And thereafter, also this Tribunal has upheld the action of the assessee adopting the TNMM method for AY. 2009 10, 2010-11 & 2012-13 vide order dated 27.07.2020 (ITA. No. 882/Mum/2014, 396/Mum/2015 & 6667/Mum/2016). And for AY. 2013-14 (ITA. No. 6393/Mum/2019) vide order dated 18.05.2021. Since the TP....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nting credit for DDT of Rs.19,54,33,412/- which is already paid by the appellant and details of which are furnished in return of income (Schedule-DDT). The appellant prays that the DDT credit be granted and the demand be deleted as it does not survive. 16. The Ld. AO has erred in charging interest Rs.12,41,00,217/- under section 115P of the Act considering the appellant has not paid DDT of Rs.19,54,33,412/- within the time allowed under section 115-O(3) of the Act. The appellant prays that DDT credit of Rs.19,54,33,412/- be granted, pursuant to which, the DDT interest will not survive and be deleted." 16. The main grievance of the assessee are against the action of AO not giving credit for Dividend Distribution Tax (DDT) of Rs.19,54,33,412/- which has already been paid by assessee and details of which has been furnished in the return of income (Schedule-DDT). According to the assessee, the DDT credit ought to have been granted and the demand raised of Rs. 19,54,33,412/- ignoring the fact of payment needs to be deleted. Further, according to the assessee, the AO erred in-charging interest of Rs.12,41,00,217/- u/s 115P of the Act on the reasoning that the assessee has not....