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2012 (10) TMI 285 - ITAT MUMBAITransfer pricing adjustment - whether the provisions of sec 92A are applicable to the transactions of the assessee in their service activity ? - M/s Sanchez Computer Associates Inc., USA holds 20% shares in the assessee company & remaining 80% is held by Peninsula Capital Services Private Limited India - Held that:- Assessee has been filing form No.3CEB as an abundant precaution admitting the other two enterprises as associated enterprises. However, just because assessee has been filing Form No.3CEB it cannot be stated that these two are associated enterprises unless provisions of section 92A are satisfied - As far as the conditions in 92A(2) are concerned, assessee has given detailed explanation how these provisions are not applicable so as to hold the two companies as associated enterprises. However, it is not clear on record whether there is any relationship as prescribed u/s 92A(1)(a)(b) which specify that an associated enterprise in relation to another enterprise. Since inquiries are pending before the TPO to examine whether there is any direct or indirect participation of Sanchez in Zenta Private Limited, Mumbai holding 1005 shares of Peninsula Capital Services Pvt. Ltd India, or otherwise and share holding pattern of 80% share holder also has any direct or indirect control in Sanchez, we do not propose to give any finding at this juncture whether there is any relationship of associated enterprise between the parties involved herein. Therefore without adjudicating on this issue the order of the DRP as well as TPO is set aside and restore back to TPO to decide afresh whether there is any associated enterprise relationship between the parties and whether provisions of section 92A are applicable - in favour of assessee for statistical purposes.
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