TMI Blog2016 (5) TMI 578X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 (4) TMI 346 - DELHI HIGH COURT ) then also, the Tribunal after examining the record has found that the services rendered were concerning the business and once the nexus is found and the factual aspect is considered by the Tribunal, it cannot be said that the Tribunal ought to have remanded the matter by keeping that question once again open for consideration by the TPO. Further, the Tribunal has rightly considered and examined the decision of Delhi High Court in case of EKL Appliances Ltd (supra). As such, in our view, no substantial question of law arises for consideration, as sought to be canvassed. - ITA NO.492/2015 & ITA NO.642/2015, C/W ITA NO.470/2013, ITA No.492/2015 & ITA No.642/2015 - - - Dated:- 22-3-2016 - MR. JAYANT PATE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Whether on the facts and in the circumstances and in law the Tribunal was correct in holding that the Transfer Pricing Officer is required to determine the ALP of the International transaction but cannot examine whether there was any international transaction between the assessee and the AE and recorded perverse finding? 2. We have heard Mr.K.V.Aravind, learned Counsel appearing for the appellants. 3. It may be recorded that the Tribunal while considering the relevant aspects at paragraphs-9 an d 10 has observed thus: 9. Having heard both the parties and having considered the rival contentions and also the material on record, we find that the basic finding of the TPO is that the assessee has not received any services from its AE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia and might have rendered their services to the assessee. 9.1 Now whether any services have been rendered by the AE to the assessee company is to be examined. The assessee has drawn our attention to pages 61 to 67 of the paper book which consists of the e-mails between the assessee and the personnel of the AE and also reports of the personnel of AE who have visited India which are at pages 61-523. We find that the TPO has brushed aside these documents perfunctorily stating that there are only the e-mails and are not evidence of the services rendered. We are of the opinion that the TPO ought to have considered the documents in proper perspective to see whether the assessee has received any services. The documents purportedly are advices ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to determine the ALP of the International transactions, but cannot examine whether there was any international transaction between the assessee and its AE. This power is vested with the AO only. Having regard to the comparable cases, as far as quantification of the expenses is concerned, we find that as held by the Hon ble Supreme Court of India in the case of M/s Consolidated Coffee Ltd., Vs State of Karnataka 248 ITR 432 (cited supra), has held that allocation of expenditure on the basis of turnover is justified. Since these findings of the TPO on the rendering of services and allocation of expenses are erroneous, we set aside the matter to the TPO with a direction to recompute the ALP by taking into consideration the allocated expenses b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10. In the result, the assessee s appeal is partly allowed for statistical purposes. 4. The aforesaid shows that the Tribunal while considering the matter has found that the incurring of the expenses and the reimbursement is established. Further, on the aspects of services rendered by the Associated Enterprises (AE for short) to the assessee-Company is concerned, the Tribunal found that the voluminous record was produced from page Nos.61 to 523. The Tribunal after examining the said record, has noted the finding of fact which reads as under: The documents purportedly are advices given by the AE to the assessee on various issues concerning its business. 5. Thereafter, the Tribunal has found it proper for the matter to be relega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 92 of the Income Tax Act, such an exercise is available read with the decision of Delhi High Court in the case of EKL Appliances Ltd (supra) then also, the Tribunal after examining the record has found that the services rendered were concerning the business and once the nexus is found and the factual aspect is considered by the Tribunal, it cannot be said that the Tribunal ought to have remanded the matter by keeping that question once again open for consideration by the TPO. Further, the Tribunal has rightly considered and examined the decision of Delhi High Court in case of EKL Appliances Ltd (supra). 8. As such, in our view, no substantial question of law arises for consideration, as sought to be canvassed. Hence the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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