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2022 (5) TMI 1620 - AT - Income TaxTP Adjustment - Adoption of the Most Appropriate Method (MAM)in determining the ALP in respect of an international transaction of payment of royalty to its Associated Enterprise (AE) u/s.92 - TNMM v/s Profit Split Method (PSM) - HELD THAT:- The facts in AY 2016-17 [2021 (6) TMI 855 - ITAT MUMBAI] are identical and the reasoning given in AY 2013-14 [2020 (3) TMI 947 - ITAT BANGALORE] will equally apply to the AY 2016-17 also. Respectfully following the aforesaid decision, we set aside the question of determination of ALP to the TPO afresh applying TNMM as the most appropriate method as was done in Assessment Years 2013-14 and 2014-15 in the order referred to above. The other issues with regard to determination of ALP under the PSM is academic and does not require adjudication. Rate of tax on dividend distributed to non-resident shareholders - whether DDT is a tax on the Company or the Shareholder since the distributable surplus stands reduced to the extent or DDT? - HELD THAT:- We find that the ITAT Mumbai Bench in the case of Dy Cit 11 (3)(1), Mumbai vs Total Oil India Pvt Ltd. [2021 (6) TMI 855 - ITAT MUMBAI] in Assessment year 2016-17 has for identical reasons given by the DRP, made a reference to Special Bench disagreeing with the view of the ITAT Delhi in the case of Gieseck. & Devrient [India] Pvt Ltd. [2020 (10) TMI 750 - ITAT DELHI] Since the issue has not attained finality, we are of the view that it would be just and appropriate to remand the issue to the TPO/AO for fresh consideration in accordance with law. The grounds are treated as partly allowed for statistical purpose.
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