TMI Blog2024 (1) TMI 290X X X X Extracts X X X X X X X X Extracts X X X X ..... RC against the supply of bogies/wagons. (ii) The comparables against which ALP should be benchmarked. (iii) Whether, in the facts and circumstances obtaining in the AY in issue, i.e., AY 2011-12, requires the usage of CUP Method for determining ALP as against TNM Method, as held by this court in its order dated 09.04.2018 passed in ITA No.223/2018. In other words, only if the CIT(A) finds that facts and circumstances subsist which distinguish it from those obtained in AY 2010-11, would he adopt a method different from the TNM method. - HON'BLE MR. JUSTICE RAJIV SHAKDHER AND HON'BLE MR. JUSTICE GIRISH KATHPALIA For the Appellant Through: Mr Vishal Kalra and Mr S.S. Tomar, Advs. For the Respondent Through: Mr Shail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es/wagons to its Associated Enterprise (AE) i.e., Bombardier Transportation GmbH. 4. It is Mr Kalra s submission that while the appellant raised an invoice on its AE [i.e., its German counterpart] at a particular price, the AE, in turn, raised an invoice on the ultimate purchaser i.e., Delhi Metro Rail Corporation (DMRC), albeit, at the same rate. 4.1. Mr Kalra, however, says that since the bogies and wagons were manufactured in India by the appellant/assessee, they were physically transported from its manufacturing unit in India to DMRC. 4.2. In this context, Mr Kalra has drawn our attention to paragraph 5.2 of the impugned order passed by the Tribunal, whereby this issue has been remitted by the Tribunal to the Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Thus, ground nos. 3,4,4.1 and 4.2 stand dismissed. 5.2 In ground nos. 4.3, 5 and 5.1, the assessee has raised an alternate ground that remuneration to the assessee from the international transaction cannot be greater than the overall revenue received from the third party. In this regard, the assessee has drawn our attention to the order of the Delhi Tribunal in the case of Global Vantedge vs. CDIT in ITA No.2763 and 2764/Del/2009 wherein the Tribunal had held that adjustment on account of arm's length price of international transactions cannot exceed the maximum arm's length price. Reliance has also been placed on the fact that the Hon'ble Delhi High Court had upheld this order of the Tribunal and the SLP of the reven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eaking order on the issue. Accordingly, ground nos. 4.3, 5 and 5.1 are restored to the file of the Ld. CIT (A) to be considered afresh and for the purposes of passing a speaking order after giving due opportunity to the assessee to present its case. Thus, ground nos. 4.3, 5 and 5.1 stand allowed for statistical purposes. [Emphasis is ours] 8. Mr Shailendera Singh, learned senior standing counsel, who appears on behalf of the respondent/revenue, will return with instructions as to whether the matter can be remitted to the TPO for considering the second aspect of the matter, as captured in paragraph 5.2 of the impugned order dated 09.08.2019 passed by the Tribunal. 9. List the matter on 13.03.2023. 2. As would be eviden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s common ground that insofar as the aspect pertaining to certain comparables was concerned, it has been remitted to the Transfer Pricing Officer (TPO), while others have been excluded to the prejudice of the appellant/assessee via the impugned order. 4. Mr Kalra says that since the issue concerning whether or not the appellant has recovered from its AE price in excess of what the AE received from the third party, i.e., DMRC- is required to be examined by the CIT(A), the issue involving comparables should also be examined by him. 4.1 Likewise, it is Mr Kalra s submission that the aspect concerning ascertainment of MAM in the instant case [i.e., CUP or Transactional Net Margin (TNM) Method], should also be examined by the CIT(A). 5. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
