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2019 (5) TMI 1978 - AT - Income TaxTP Adjustment - selection of MAM - CUP v/s TNMM - rejecting the benchmarking done by the assessee with regard to the payment made to AE towards charter hire of dredgers by applying Comparable Uncontrolled Price (CUP) method as the most appropriate method and selecting Transactional Net Margin Method (TNMM) as the most appropriate method - HELD THAT:- In case of the present assessee material facts permeating through different assessment years are more or less identical as the terms and conditions on which the dredgers are hired have not changed. That being the case, applying the rule of consistency, a different view cannot be taken in the impugned assessment year with regard to the benchmarking of lease rentals paid for charter hire of dredgers by applying CUP method. For the aforesaid reasons, we allow the grounds raised by the assessee with a direction to the Assessing Officer / Transfer Pricing Officer to accept the benchmarking done by the assessee under CUP method after verifying the fact that the independent valuer has made the valuation as per CIRIA norms. Grounds are allowed. TP Adjustment - arm's length price of management services paid to the AE - HELD THAT:- It is evident from the order of DRP that they have decided the issue relying upon their decision in assessee’s own case for the assessment year 2009–10 [2016 (11) TMI 1249 - ITAT MUMBAI] Tribunal has held that the amount received is neither in the nature of royalty nor fees for technical services under Article–12 of India–Netherland Tax Treaty. That being the case, respectfully following the decision of the Co–ordinate Bench referred to above, we delete the addition made by the Assessing Officer. Addition made on account of reimbursement of salary by treating it as fees for technical services - HELD THAT:- Tribunal while deciding the issue in assessment year 2009–10 [2016 (11) TMI 1249 - ITAT MUMBAI] held that reimbursement of salary is not in the nature of fees for technical services as per Article–12(5) of India–Netherland Tax Treaty. Therefore, respectfully following the aforesaid decision of the Co– ordinate Bench, we delete the addition made by the Assessing Officer. These grounds are allowed. Levy of interest under section 234B - HELD THAT:- We find that in Balash Hamp Dredging B.V. [2011 (6) TMI 941 - BOMBAY HIGH COURT] as following the decision in NGC network LLC [2009 (1) TMI 174 - BOMBAY HIGH COURT] has held that interest under section 234B of the Act cannot be charged as the assessee is not liable to pay advance tax and the liability is on the payer to deduct tax at source. We allow the ground raised by the assessee.
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