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2020 (2) TMI 951 - HC - Income TaxTP Adjsutment - TPO determining the arms length price of the syndication fee at 100% - ITAT remanded the matter back to the file of the Assessing Officer to decide the issue afresh by considering the decisions relied upon by the Tribunal for allocation of non-syndication fee between the assessee and associated enterprise after giving opportunity of being heard to the assessee - HELD THAT:- As decided in M/S CREDIT LYONNAIS VERSUS ADIT(INTERNATIONAL TAXATION) [2014 (7) TMI 1 - ITAT MUMBAI] TPO as well as CIT(A) has not brought out any comparable for determination of the arms length price but took the total income comprising interest as well as other fees charged by the foreign branches for allocation/ attribution to the assessee. In this case, the ALP has not been determined by taking into consideration uncontrolled similar transaction. Interest cannot be taken into account for attribution of income towards service charges/fees and, therefore only the fee charged by the foreign branches can be taken into consideration for making adjustment under transfer pricing provisions. Since none of the parties have come out with the suitable comparables, therefore, we find that the estimation made by the CIT(A) at the rate of 20% is just and proper, however, the same would be only in respect of the fee and charges other than interest received by the foreign branches. No error or infirmity in the view taken by the Tribunal in remanding the matter back to the file of the Assessing Officer for a fresh decision in accordance with law.
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