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2023 (3) TMI 906 - AT - Income TaxTP Adjustment - ‘receipt of counter guarantee commission’ by the Assessee from Associated Enterprises (AE) for providing counter guarantee at the instance of its overseas AE - HELD THAT:- We find rationale in the plea of the assessee that the counter guarantee with negligible risks can not per se be compared with guarantee offered by independent parties/ banks shouldering very high risk parameters as also observed by the co-ordinate bench in other assessment years. TPA made in the impugned assessment order towards counter guarantee commission is thus grossly at odds with the factual position enunciated by the co-ordinate benches and hence such adjustment is totally uncalled for. The directions of the DRP in Assessment Years 2010-11 and 2011-12 acknowledges the position taken by the assessee. The directions given while restoring the matter to the AO are self evident and does not admit of any such assumption of agreeability of any sort with CUP method as canvassed on behalf of the revenue. The Assessee in any case, would not be in a position to defend its case for TNMM method as MAM unless data collected is provided for its examination and rebuttal. It is manifest that the observations made by the Co-ordinate Bench in the first round had kept the issue entirely open to be decided denovo. We are thus not impressed by such counter argument on behalf of the Revenue.
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