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2017 (2) TMI 1114 - ITAT PUNETPA - selection of comparable - exclusion of Bosch Chassis System India Ltd. and non-inclusion of Escorts Ltd. - Held that:- In view of the admission of the assessee and in view of the present facts and circumstances, we hold that both Bosch Chassis System India Ltd. and Escorts Ltd. having different accounting year ending are not to be included in the final set of comparables in order to benchmark the international transaction of the assessee, while applying TNMM method. We direct so. The Assessing Officer/Transfer Pricing Officer is directed therefore to recompute the adjustment, if any, in the hands of the assessee in this regard. The Ld. Authorised Representative for the assessee pointed out that in case if Bosch Chassis System India Ltd. is excluded from the final set of comparables, its margin would be within +/-5% and no adjustment is to be made on account of Arm’s Length provisions. Accordingly, we direct the Assessing Officer to work out the margins of the comparables and compare it with the PLI of the assessee. Corporate guarantee adjustment made in the hands of the assessee - Held that:- The facility provided by the assessee to its AE under which Corporate Guarantee was given by the assessee on behalf of the subsidiary. The Transfer Pricing Officer while benchmarking the international transaction of the assessee was of the view that against the provision of Bank Guarantee, the assessee should have charged some amount as Guarantee fee and he worked out the above in the hands of the assessee by adopting the Guarantee fee @1%, i.e. resulting in addition of ₹ 6,40,000/-. The assessee is in appeal against the order of the Assessing Officer/ Transfer Pricing Officer. Thus we direct the Assessing Officer to apply the rate of 0.5% as charges for providing Bank Guarantee to the Associate Enterprise and restrict the addition accordingly. Grounds raised by the assessee are thus partly allowed. Deduction allowable in view of the provisions of section 43B - Held that:- Under the provisions of section 43B of the Act, it is provided that in case the assessee does not deposit certain sums within the stipulated period, then the said amount is to be disallowed in the hands of the assessee but the assessee is entitled to claim the same as deduction in the year of payment. The assessee claims that the provisions made on account of excise duty, bonus and sales tax were offered to tax in assessment year 2007- 08 since the amounts were not deposited, however, the said amounts have been paid in the year under consideration but by an inadvertent error, while filing the return of income, the said deductions were not claimed. Following the ratio laid down in the case of CIT Vs. Pruthvi Brokers and Shareholders Pvt. Ltd. (2012 (7) TMI 158 - BOMBAY HIGH COURT ) we hold that the assessee can raise such a plea before the authorities, i.e. during the course of assessment or appeal proceedings. Accordingly, we find no merit in the observations of the Dispute Resolution Panel in rejecting the claim of the assessee relying on the ratio laid down by the Hon’ble Supreme Court in the case of Goetze India Ltd. Vs. CIT (2006 (3) TMI 75 - SUPREME Court). Reversing the same, we direct the Assessing Officer to verify the claim of the assessee and allow the same in accordance with law
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