TMI Blog2020 (7) TMI 660X X X X Extracts X X X X X X X X Extracts X X X X ..... istency and the cited order of Tribunal in assessee s own case, we hold that TNMM methodology as adopted by the assessee to benchmark the transactions was to be accepted. Since, the margin of the assessee under this method have been shown to be within ALP range, the impugned adjustment stand deleted. - I.T.A. No.882/Mum/2014 And I.T.A. No.396/Mum/2015 And I.T.A. No.6667/Mum/2016 - - - Dated:- 27-7-2020 - Shri Pawan Singh, JM And Shri Manoj Kumar Aggarwal, AM For the Assessee : Shri Percy Pardiwala-Ld. Sr. Counsel For the Revenue : Shri Anand Mohan-Ld. CIT-DR ORDER PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. The grievance of the assessee in all the above three appeals for Assessment Years 2009-10, 2010-11 2012-13 is more or less the same. Therefore, the appeals were heard together and are now being disposed-off by way of this consolidated order for the sake of convenience and brevity. It is admitted position that adjudication in any one year shall apply to other years also. Taking AY 2009-10 as the lead year we proceed with the adjudication of all these appeals. ITA No. 882/Mum/2014, AY 2009-10 2. This appeal contest certain Transfer Pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmed his scientific analysis for selection of the most appropriate method having regard to the provisions of the Rule 10B of the Rules. 2.5 That on facts and circumstances of the case and in law the Ld. TPO / DRP/Assessing Officer erred in considering Comparable Uncontrolled Price ( CUP ) method as the most appropriate method to benchmark the export of chemical additives. 2.6 That on facts and circumstances of the case and in law the Ld. TPO /DRP/Assessing Officer erred in appreciating the facts and reasoning of the appellant in relation to volume, geography and other differences due to which CUP method could not be treated as the most appropriate method. 2.7 That on facts and circumstances of the case and in law the Ld. TPO/DRP/Assessing Officer erred in disregarding the submissions suggesting appropriate adjustments to be made to the export price charged to AEs and sales price charged to unrelated parties in India, to make the same comparable with each other (without prejudice to its contention that CUP is not the most appropriate method to benchmark the export of chemical additives). 2.8 That on facts and circumstances of the case and in law the Ld. TPO/DRP/AO failed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings and since the assessee failed to quantify / supply the necessary information as called for by Ld. TPO, the additions were justified. In the said background Ld. CIT-DR justified the application of comparable uncontrolled price (CUP) method and rejection of TNMM method by Ld. TPO to benchmark the concerned transactions. 4.1 We have carefully heard the rival submissions and perused relevant material on record including the cited decision of Tribunal in assessee s own case. Our adjudication to the subject matter of appeal would be as given in succeeding paragraphs. 4.2 The material on record would show that the assessee is a 50:50 joint venture between LZ US and Indian Oil Corporation Ltd. The assessee is specialty chemical company serving the needs of the Petroleum industry. The assessee is stated to be engaged in the business of developing, manufacturing and marketing of additive systems for Automotive and Industrial Lubricants and for treatment of fuels. 4.3 A draft assessment order was passed by Ld. AO on 11/02/2013 pursuant to the order of Ld. Transfer Pricing Officer-1(5), Mumbai (TPO) dated 27/11/2012. The assessee preferred objections against the same befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that principle of res-judicate would have no application in Income Tax Proceedings. Reliance was placed on the directions of Ld. DRP for AY 2006-07. Finally, the action of Ld. TPO in suggesting the impugned adjustment was upheld, against which the assessee is under further appeal before us. 5. As submitted by Ld. Sr. Counsel, we find that the assessee s methodology to benchmark the stated transactions was subject matter of dispute before this Tribunal for AYs 2005-06 to 2007-08, ITA Nos. 8148/Mum/2010, 2305/Mum/2012 1821/Mum/2011, common order dated 20/11/2019 wherein the matter was concluded by the co-ordinate bench in assessee s favor in the following manner: - 20. In our considered opinion the aforesaid reasoning fully applies to the facts of the present case. Without any change in facts and law the Transfer Pricing officer has changed the consistently applied TNMM method to the cup method. While doing so he has blandly held that TNMM method is not full proof. Furthermore, the assessee's objection that the comparison of other transactions have to be considered by adjustment of various factors is also not fully dislodged. 21. In the background of the aforesaid disc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ged before us is correct computation of interest u/s 234B, 234C 234D. For this, it would suffice on our part to direct Ld. AO to compute interest in accordance with law. We direct so. 7. Resultantly, the appeal stand partly allowed to the extent indicated in the order. ITA No. 396/Mum/2015, AY 2010-11 8.1 It is accepted position that since facts are similar, the adjudication for AY 2009-10 would apply with full force to AY 2010-11 as well. The Ld. TPO has proposed similar adjustment of ₹ 229.00 Lacs by applying CUP method. The same has been upheld by Ld. DRP in its directions dated 14/10/2014. Facts being pari-materia the same, our adjudication for AY 2009-10 shall mutatis-mutandis apply to this year also. By deleting the impugned TP adjustment, the ground raised, in this regard, stand allowed in similar manner. 8.2 In ground No.3, the assessee is contesting the addition of interest income on fixed deposits for ₹ 19.93 Lacs. Facts qua the same are that there was a difference of ₹ 19.93 lacs in interest income as reported by the assessee vis- -vis interest income as reflected in TDS certificates. Accordingly, the differential was added to the i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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