TMI Blog2017 (5) TMI 1615X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence after satisfying the above conditions and passing an order to that effect. In the present case, the appellant had not explained as to how it was prevented from furnishing evidences before lower authorities and also how this evidence would prove conclusively that AE had rendered the services for which management fee was paid by the appellant. Any valuable reason for admission of additional evidence as the additional evidence does not conclusively prove that the services were actually rendered by the AE Referring to case of Volvo India (P.) Ltd. v. CIT [2016 (12) TMI 1589 - ITAT BANGALORE] we hold that in the absence of proof of actual rendition of services on record, TPO was justified in making the ALP adjustment. As regards the other contention of the AR that the transaction of management support fee should be aggregated with other transaction and be bench marked by adopting TNMM cannot be accepted for the simple reason that when there was no proof of actual rendition of services by AE, the very transaction is a sham transaction and in which event it cannot be said that the transaction can be bundled with other transactions. - decided against assessee - IT (TP) Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leading to an enhanced tax liability. The interest liability would consequentially abate in consideration of our request to set aside the order of the learned AO. 3. Briefly the facts of the case are the appellant is a company incorporated under the Companies Act, 1956. It is engaged in the business of manufacturing, trading and marketing. The return of income for the assessment year 2006-07 was filed on 27.11.2006, declaring income of ₹ 31,61,66,533/-. The said return of income was processed under the provisions of section 143(1) and then the case was taken up for scrutiny assessment by issuing notice under section 143(2). 4. During the course of the scrutiny proceedings, the Assessing Officer noticed that the appellant has reported the following international transactions with its AE in Form 3CEB: 1. Import of raw materials ₹ 12,83,24,140 2. Import of spares and consumables ₹ 7,86,118 3. Import of spares for machinery ₹ 6,84,062 4. Import of finished goods fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not justified to treat the transaction of payment of management fee as a separate class of transaction without rejecting the TP study report submitted by the appellant. It was further contended that the TPO was not justified in not aggregating the transaction of management fee with other transactions as the transactions were interlinked. It was further contended that the TPO is not justified in applying the 'CUP' method as against the TNMM adopted by the appellant for bench marking the management service fee and finally contended that the TPO was not justified in suggesting the TP adjustment of ₹ 2,21,64,344/-. The Hon'ble DRP after considering the submission of the appellant confirmed the findings of the TPO vide order dated 27.08.2010. Pursuant to the order of Hon'ble DRP, final assessment order was passed by the AO vide order dated 31.08.2010 passed under section 143(3) r.w.s. 144C of the Act. 6. Being aggrieved, the appellant is before us in the present appeal. It was contended on behalf of the appellant that for the purpose of bench marking the intra group services, TPO was not justified in examining the necessity as well as the profitability of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ITR 1 and Sassoon J. David Co. (P.) Ltd. v. CIT [1979] 118 ITR 261/1 Taxman 485. The decision of Hon'ble Delhi High Court in the case of EKL Appliances Ltd. (supra) was followed by several coordinate benches of this Tribunal, few of them are as follows: i. Dresser-Rand India (P.) Ltd. v. Addl. CIT [2011] 13 taxmann.com 82/[2012] 53 SOT 173 (Mum.) ii. Ericsson India (P.) Ltd. v. Dy. CIT [2012] 25 taxmann.com 472 (Delhi) iii. AWB India (P.) Ltd. v. ACIT [IT Appeal No. 4454 of 2011] iv. SC Enviro Agro India Ltd. v. Dy. CIT [2013] 34 taxmann.com 127/143 ITD 195 (Mum. - Trib.) v. Abhishek Auto Industries Ltd. v. Dy. CIT [2011] 9 taxmann.com 27 (Delhi) vi. McCann Erickson India (P.) Ltd. v. Addl. CIT [2012] 24 taxmann.com 21 (Delhi) vii. DSM Anti-Infectives India Ltd. v. Addl. CIT [2014] 50 taxmann.com 239 (Chd. - Trib.) viii. TNS India (P.) Ltd. v. Asstt. CIT [2014] 48 taxmann.com 128/[2015] 152 ITD 123 (Hyd. - Trib.) ix. Atotech India Ltd. v. Asstt. CIT [2014] 148 ITD 670/42 taxmann.com 468 (Delhi - Trib.) x. Nippon Leakless Talbros v. ACIT [IT Appeal No. 5931 (Delhi) of 2012] xi. Nippon Leakless Talbros v. ACIT [IT (TP) Appeal No. 475 (Delhi) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce as the additional evidence does not conclusively prove that the services were actually rendered by the AE. The coordinate bench of this Tribunal in the case of Volvo India (P.) Ltd. v. CIT (Appeals) [2017] 77 taxmann.com 207 of which the Hon'ble AM is the author, held as follows:- 12. Thus in the light of the above legal position, the ALP of services of AE cannot be determined at Nil by questioning the necessity of benefits of expenditure incurred. But the matter does not end there. The onus lies on the assessee to prove that the services are actually rendered by the AE. But the assessee had failed to discharge this onus lying upon it despite being asked to do so by the TPO. The TPO had especially invited the assessee company to produce the proof in support of the services rendered by AE. The appellant only had tried to prove this by producing some correspondence which does not prove that the services are actually rendered. The failure by the assessee to discharge the onus can be presumed that the assessee had no evidence to establish that services of management support are rendered by its AE in consideration to payment of ₹ 26,22,19,000/-. This presumption can be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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