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2017 (5) TMI 1615 - AT - Income TaxTPA - ALP adjustment - admission of additional evidence - absence of proof of actual rendition of services - Held that:- It is not discernible that the appellant made any attempt to furnish the proof of receipt of the services. The appellant also filed an application for admission of this additional evidence, in terms of provisions of Rule 29 of the ITAT Rules. No doubt the parties to the appeal are entitled to produce the additional evidence either on suo motto direction of the Tribunal on its own in terms of Rule 29 of ITAT Rules, 1964. Where the additional evidence is filed by the either party to the appeal, the additional evidence can be admitted by the Tribunal at its discretion only in the event that the party leading the additional evidence satisfied the Tribunal that it was prevented by sufficient cause from leading such evidence and this evidence would have material bearing on the issue which is to be decided by the Tribunal and ends of justice demands the admission of such evidence. The Tribunal can only admit this evidence after satisfying the above conditions and passing an order to that effect. In the present case, the appellant had not explained as to how it was prevented from furnishing evidences before lower authorities and also how this evidence would prove conclusively that AE had rendered the services for which management fee was paid by the appellant. Any valuable reason for admission of additional evidence as the additional evidence does not conclusively prove that the services were actually rendered by the AE Referring to case of Volvo India (P.) Ltd. v. CIT [2016 (12) TMI 1589 - ITAT BANGALORE] we hold that in the absence of proof of actual rendition of services on record, TPO was justified in making the ALP adjustment. As regards the other contention of the AR that the transaction of management support fee should be aggregated with other transaction and be bench marked by adopting TNMM cannot be accepted for the simple reason that when there was no proof of actual rendition of services by AE, the very transaction is a sham transaction and in which event it cannot be said that the transaction can be bundled with other transactions. - decided against assessee
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