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2020 (3) TMI 1191 - AT - Income TaxTP Adjustment - Technical know-how fees paid by Appellant to its Associated Enterprise - HELD THAT:- From the aforesaid decision of Tribunal in AY 2013-14 [2019 (9) TMI 1342 - ITAT, MUMBAI]we find that TPO determined the ALP of international transaction, without resorting to the method prescribed in the Act, which has been set aside by the Tribunal. We have further noted that in AY 2013-14 the ld. DR for the revenue also made prayed to restore the issue to the file of TPO for fresh determination of ALP; the same was not accepted by the coordinate bench, in the earlier. For the year under consideration (AY 204-15), we notice that TPO has applied Benefit Test which is not as per the rules prescribed under Rule 10B & 10AB of Income Tax Rules. In our view, the payment of Technical knowhow was never bench marked in the earlier AYs. Considering the totality of the facts and circumstances and the fundamental question that revenue should not be deprived of legitimate tax due to the exchequer. Therefore, in order to bench mark this transaction and to determine proper ALP, of the international transaction, we are inclined to remit this issue back to TPO/AO to determine the ALP afresh as per Rule 10B & 10AB of the I.T. Rules. Needless to order that before making fresh bench marking in accordance with Rule 10AB & 10B read with section 92C, the TPO/ AO shall provide opportunity of hearing to the assessee. Accordingly, the Ground No 1 of the appeal is allowed for statistical purpose.
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