TMI Blog2020 (10) TMI 1042X X X X Extracts X X X X X X X X Extracts X X X X ..... at assessee has filed the reasons for charging 5% as markup that is for taking care of administration and fright cost. It is not submitted before us any document relating to prices i.e. whether it is FOB or C IF prices. Since the AE has supplied the assets on cost to cost with a markup of 5% and the Customs has accepted the transaction as reasonable we do not see any reason to disturb the transaction. In the similar situation TPO has treated the ALP as nil without following any method or parameters set out in chapter X of the act, in the case of Lever India Exports Ltd [ 2017 (2) TMI 120 - BOMBAY HIGH COURT ] deleted the impugned addition made by TPO. We are inclined to delete the addition made by the TPO in the present case. Accordingly, the appeal filed by the assessee is accordingly allowed. - I.T.A. No. 6601/Mum/2017 - - - Dated:- 27-7-2020 - Shri Saktijit Dey, JM And Shri S. Rifaur Rahman, AM For the Appellant : Shri Pankaj R. Toprani/Ms. Krypa R. Toprani, ARs For the Respondent : Shri Uodal Raj Singh, DR ORDER PER S. RIFAUR RAHMAN, ACCOUNTANT MEMBER: The present appeal filed by the assessee is against the final order of assessment passe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee manufactures up to 6 hoze fuel dispensers. It manufactures these dispensers using both indigenous raw materials and imported materials from third-party vendors as well as from associated enterprise. During this year assessee purchased fixed assets of ₹ 23,20,989/ from its AE Tokheim UK Ltd. Assessee submitted details of international transactions reported for this assessment year in which assessee has declared the details of fixed assets purchases and method adopted for TP analysis declared as other method . At the time of assessment, TPO asked the assessee to produce relevant details of such purchases and justify ALP of the transaction. The assessee produced Bill of purchase from its AE and also bills of corresponding purchase made by its AE. The copy of the bills are part of TP order. TPO observed that the AE has raised bills of Pulser Test Rig and Metre on assessee while corresponding bill raised by E.P Engineering Co Ltd on its AE UK Ltd. He observed that it shows various items that too in quantity ranging from 30 to 1500. The items mentioned in both the bills are not same and therefore it is not accepted as a benchmark for comparing price charged by AE. Further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Invoice reference Amount inGBP Amount in Euro GBPto Euro Conversion rate RM10 E P ENGINEERING. 11978 6,161.58 7,837.53 1.272 RM11 JOHN FRANKLIN 1 9,216.00 11,722.75 1.272 Total actual costs incurred (A) 23,611.09 30,033.31 Sr. No. Customer invoices Invoice reference Amount in Euro Tl Pulser rig 150624 9,217.43 T2 Meter rig 150623 22,317.75 Total value invoiced (B) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... meter and customs authority has accepted the cost and the documentation, therefore it cannot be rejected. The Customs follows different method of ALP. He prayed that the ALP adjustment made by TPO be deleted. 10. On the other hand, Ld DR supported the findings of tax authorities and submitted that there is no comparabilities available for the transaction. 11. Considered the rival submissions and material on record. We notice that assessee has entered into various international transactions and one of the transaction is purchase of fixed assets from its AE. There is no dispute that assessee has imported certain rigs from its AE in UK. The issue before us is assessee has declared this transaction as international transaction and adopted the other method for the purpose of arms length price. By declaring other method as appropriate method and treating the 5% markup as ALP for the transaction. We notice that TPO verified the invoices submitted by the assessee and found that there is difference in quantities mentioned in both the invoices and accordingly rejected the submissions of the assessee. On the other hand, assessee has submitted a detailed chart for purchase of Pulser R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut in chapter X of the act, the Hon ble High Court of Bombay in the case of Lever India Exports Ltd (supra) deleted the impugned addition made by TPO. For the sake of brevity, which is reproduced below:- 7. We note that the Tribunal has recorded the fact that the respondent assessee has launched new products which involved huge advertisement expenditure. The sharing of such expenditure by the respondent assessee is a strategy to develop its business. This results in improving the brand image of the products, resulting in higher profit to the respondent assessee due to higher sales. Further, it must be emphasized that the TPO's jurisdiction was to only determine the ALP of an International Transaction. In the above view, the TPO has to examine whether or not the method adopted to determine the ALP is the most appropriate and also whether the comparables selected are appropriate or not. It is not part of the TPO's jurisdiction to consider whether or not the expenditure which has been incurred by the respondent assessee passed the test of Section 37 of the Act and/or genuineness of the expenditure. This exercise has to be done, if at all, by the Assessing Officer in exerci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The pronouncement may be in any of the following manners:- (a) The Bench may pronounce the order immediately upon the conclusion of the hearing. (b) In case where the order is not pronounced immediately on the conclusion of the hearing, the Bench shall give a date for pronouncement. (c ) In a case where no date of pronouncement is given by the Bench, every endeavour shall be made by the Bench to pronounce the order within 60 days from the date on which the hearing of the case was concluded but, where it is not practicable so to do on the ground of exceptional and extraordinary circumstances of the case, the Bench shall fix a future day for pronouncement of the order, and such date shall not ordinarily(emphasis supplied by us now) be a day beyond a further period of 30 days and due notice of the day so fixed shall be given on the noticeboard. 8. Quite clearly, ordinarily the order on an appeal should be pronounced by the bench within no more than 90 days from the date of concluding the hearing. It is, however, important to note that the expression ordinarily has been used in the said rule itself. This rule was inserted as a result of directions of Hon ble ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, the lockdown by observing that In case the limitation has expired after 15.03.2020 then the period from 15.03.2020 till the date on which the lockdown is lifted in the jurisdictional area where the dispute lies or where the cause of action arises shall be extended for a period of 15 days after the lifting of lockdown . Hon ble Bombay High Court, in an order dated 15th April 2020, has, besides extending the validity of all interim orders, has also observed that, It is also clarified that while calculating time for disposal of matters made time-bound by this Court, the period for which the order dated 26th March 2020 continues to operate shall be added and time shall stand extended accordingly , and also observed that arrangement continued by an order dated 26th March 2020 till 30th April 2020 shall continue further till 15th June 2020 . It has been an unprecedented situation not only in India but all over the world. Government of India has, vide notification dated 19th February 2020, taken the stand that, the coronavirus should be considered a case of natural calamity and FMC (i.e. force majeure clause) maybe invoked, wherever considered appropriate, following the due proced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to excluded for the purpose of time limits set out in rule 34(5) of the Appellate Tribunal Rules, 1963. Viewed thus, the exception, to 90-day time-limit for pronouncement of orders, inherent in rule 34(5)(c), with respect to the pronouncement of orders within ninety days, clearly comes into play in the present case. Of course, there is no, and there cannot be any, bar on the discretion of the benches to refix the matters for clarifications because of considerable time lag between the point of time when the hearing is concluded and the point of time when the order thereon is being finalized, but then, in our considered view, no such exercise was required to be carried out on the facts of this case. 11. To sum up, the appeal of the assessee is allowed, and appeal of the Assessing Officer is dismissed. Order pronounced under rule 34(4) of the Income Tax (Appellate Tribunal) Rules, 1962, by placing the details on the noticeboard. 15. Respectfully following the aforesaid judicial precedent, we proceed to pronounce this order beyond a period of 90 days from the date of conclusion of hearing. 16. Order pronounced as per Rule 34(4) of ITAT Rules and by placing the pronounceme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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