2017 (1) TMI 1718 - AT - Income Tax

Transfer pricing adjustment - alleged international transaction of provision of liasioning support services/ indenting services by Appellant to its associated enterprise without having regard to functions, assets and risk profile of the Appellant - HELD THAT:- Though, nature and character of the business of the assessee and its A.E. remained the same over the years, however, in no other assessment year any transfer pricing adjustment on account of provision of marketing support services to A.E. has been made. This is evident from the order passed by the TPO u/s 92CA for A.Y. 2012–13. Though, each assessment year is independent and principle of res judicata generally do not apply to income tax proceeding, however, rule of consistency cannot be ignored if there is no material difference in facts. There being no basis for concluding that the assessee has provided any marketing support services to A.E. or has received any commission from the A.E. for providing such marketing support services, the transfer pricing adjustment made is hereby deleted.

Disallowance being 50% of the expenditure incurred towards employees cost and administrative and selling of distribution expenses - HELD THAT:- There is no concrete evidence before the Departmental Authorities nor any material has been brought on record to establish the fact that the assessee has been providing marketing support services to its A.E. as far as sale of turbines by the A.E. is concerned. On the contrary, the information obtained u/s 133(6) from the parties in India to whom the A.E. had sold gas turbines clearly reveal that all these customers have unequivocally stated that they have directly negotiated with the A.E. as far as purchase of gas turbines are concerned and they have independently entered into contract with the assessee for installation, maintenance and supply of balance parts. Contention of the assessee that its turnover during the impugned assessment year has increased by 40% and the head count of employees have increased as well as payments of provident fund for the first time, payment of participation fee, travelling fee incurred for attending conference, training of employees, etc., have not been disproved by bringing cogent material on record. In the aforesaid view of the matter, the ad–hoc disallowance of 50% out of the expenditure claimed on protective basis,