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2019 (4) TMI 1881 - ITAT MUMBAITP Adjustment - ALP benchmarking - selection of MAM - international transaction relating to availing of services from the AEs - assessee has benchmarked the arm's length price of the payment made towards services availed from the AE by applying CUP method - HELD THAT:- TPO has not provided any valid reason why the benchmarking done by the assessee is not acceptable. Transfer Pricing Officer while determining the arm's length price of the services availed from the AE at nil has apparently not followed any of the methods prescribed under the statute. It is also relevant to observe, the agreement under which the assessee is making payment for availing such services has continued from the preceding assessment years and is also continuing in the subsequent assessment years. It is worth mentioning, in the subsequent assessment years i.e., A.Y. 2009–10, 2010–11, 2011–12 and 2012–13, the Transfer Pricing Officer has accepted similar benchmarking of arm's length price of the services availed by the assessee from the AE on account of Lotus Note. As held by the Hon'ble Supreme Court in Kargill Food India Ltd. .CARGILL FOODS INDIA LTD. [2016 (10) TMI 1311 - SC ORDER] even applying the rule of consistency the benchmarking done by the assessee under CUP method is to be accepted. If the Transfer Pricing Officer was not convinced with the benchmarking done by the assessee, he should have benchmarked the arm's length price of the services availed by following any one of the prescribed methods as provided under the statute. A perusal of the order passed by the TRP would reveal that while rejecting the benchmarking done by the assessee and determining the arm's length price at nil, he has not followed any prescribed method as provided under the statute. That being the case, the determination of arm's length price at nil by the Transfer Pricing Officer being contrary to the provisions of the Act is not acceptable. Transfer Pricing Officer having failed to point out any specific defect or invalidity in bench marking done by the assessee, the price paid by the assessee to the AE for the services availed has to be held to be at arm's length. In view of the aforesaid, we direct the AO to delete the addition. - Decided in favour of assessee.
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