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2022 (5) TMI 35 - ITAT DELHITP Adjustment - Disallowance of support service charges to ultimate holding company in absence of evidence of service availed - HELD THAT:- We do not find any substance in the arguments advanced by the Ld. DR that the Ld. CIT(A) admitted evidence of Agreements without affording opportunity to the Ld. AO as the same were already on the records of the Ld. AO which he duly mentioned in his assessment order. We are also unable to convince ourselves that the Ld. TPO did not apply his mind to all the international transactions entered into by the assessee with its AEs while making adjustment under section 92C of the Act necessitating the Ld. AO to make additional impugned adjustment by resorting to the provision of section 37(1), section 40(a)(i) and section 40A(2) of the Act. Argument of the Ld. DR that section 92CA does not debar the Ld. AO to make adjustment over and above what adjustment is proposed by the Ld. TPO, in his assessment order passed after the receipt by him of the Ld. TPO's order under section 92CA(3) - A bare reading of the above provision 92CA reveals that the AO may refer the computation of the ALP in relation to the international transaction, with the previous approval of the Commissioner. Where a reference is made to the TPO, he will allow the assessee to produce the evidence in support of the computation made by the assessee of the ALP of the international transaction. After hearing such evidence etc. and after taking into account all relevant materials, the TPO shall pass an order in writing determining the ALP in accordance with Section 92C(3) and send a copy of his order to the AO and to the assessee. The decision of Bangalore Bench of Tribunal in Herbalife International India (P) Ltd. [2015 (10) TMI 2794 - ITAT BANGALORE]applies with full force to the case at hand before us. The crux of the matter is that once the transaction is undisputedly subject matter of chapter X 'Special Provisions relating to Avoidance of Tax' of the Act, then other general provisions of the Act cannot be applied simultaneously. We, therefore, hold that the arguments of the Ld. DR is bereft of any legal substance.Perusal of the appellate order of the Ld. CIT(A) extracted in para 4 above reveals that the Ld. CIT(A) recorded his findings that the TPO considered all international transactions in his order and TP adjustment was only suggested to Employees Secondment and Business Restructuring and therefore, these issue should not have been re-examined by the AO afresh. We entirely agree with above findings of the Ld. CIT(A). We are of the view that the Ld. CIT(A) has deleted the impugned addition made by the Ld. AO after recording cogent reasons backed by precedents. We, therefore, decline to interfere with the order of the Ld. CIT(A). Appeal of revenue dismissed. Disallowance of Support Service charges paid by the assessee to its ultimate holding company (EMCOR Group) and consequent addition to the income of the assessee - HELD THAT:- Before us, no new plea was taken by the Ld. DR. All his arguments in respect of the same addition have been dealt with by us earlier in our order of the preceding assessment year 2013-14. The submissions of the Ld. AR also remained the same. We have once more carefully perused the orders of the Ld. AO/CIT(A) and arrived at the same conclusion that the Ld. CIT(A) has recorded cogent reasons supported by the precedents with which we agree. Hence we endorse his findings and hold that the impugned disallowance/addition is not justified and the Ld. CIT(A) rightly deleted the impugned addition/disallowance. Accordingly, the appeal of the Revenue for assessment year 2014-15 also fails.
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