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2011 (2) TMI 50 - AT - Income TaxTransfer Price – TP - Arm's Length Price (ALP) - Data Link Charges - the decision of the CIT(A) in directing Assessing Officer to exclude the data link charges form the total turnover, having excluded the same from export turnover, is based on the decision of the coordinate Bench of the Tribunal in assessee's own case for assessment year 2003-04 in ITA No.579/Hyd/2007. - In the recent decision of the Special Bench (Chennai) of the Tribunal in the case of Sak Soft Ltd., it has been held that if data link charges are reduced from export turnover, then the same should also be reduced from total turnover. The undisputed fact in the case under consideration is that only one method called TNMM was applied to find out the ALP price. In our considered opinion, where the ALP has been determined by applying only one out of the several methods specified under section 92C(1) of the Act, the assessee is not entitled for deduction of 5% adjustment from the ALP as stipulated under section 92C(2) of the Act. In other words, section 92C(2) of the Act specifies that the adjustment of 5% is not applicable if a single price is determined by the assessee. Even the Circular No.12 dated 23-08.2001 issued by the CBDT does not apply to the case under consideration as the price variation is more than 5% and said circular is applicable only if the variation in price with the associated enterprise, vis-a-vis the unrelated party is within the limit of [+] or [-] 5%. In view of the above CIT(A) is not justified in allowing 5% adjustment in terms of section 92C (1) of the Act
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