TMI Blog2021 (12) TMI 1250X X X X Extracts X X X X X X X X Extracts X X X X ..... ther direct or business support, has been remunerated with mark-up of 12%, no adjustment can be made. Onus is entirely on the assessee to prove such fact. In view of the aforesaid, to provide an opportunity to the assessee to bring material on record in support of its claim that the invoice raised also includes mark-up of 12% on all types of cost, including business support cost, we restore the issue to the file of learned Commissioner (Appeals) for de novo adjudication after affording due opportunity of being heard to the assessee. - ITA No. 666/Del/2017 - - - Dated:- 23-12-2021 - SHRI SAKTIJIT DEY, JUDICIAL MEMBER AND SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER Appellant by : Mr. Atul Jain, AR Respondent by : Sh. Mrinal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... similar transaction entered by another group company with a third party, the assessee claimed that the price charged is at arm s length. However, the TPO did not accept the economic analysis of the assessee. He was of the view that the comparability under CUP method requires greater degree of similarity and preparation of TV programme, which was used as CUP, cannot be compared with the services provided by the assessee through medium of radio. Accordingly, he rejected the benchmarking of the assessee. Having done so, he adopted Transactional Net Margin Method (TNMM) as most appropriate method and after short-listing certain comparables, made an adjustment of ₹ 1,27,16,499/- to the ALP. 4. Being aggrieved, the assessee contested th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effect, is receiving mark-up of 12% on direct cost incurred for rendering programme services. Thus, he submitted, the amount received by the assessee from the AE also includes mark-up on the cost incurred. As per the working furnished before learned Commissioner (Appeals), the revised margin worked out to 12.6% as against 17% originally shown by the assessee. Learned Commissioner (Appeals), however, was not convinced with the submission of the assessee. On verifying the invoice raised by the assessee on AE, he observed that the amount shown in the invoice is only in respect of production of programme. Therefore, the claim of the assessee that it also includes the mark-up of 12.6%, is incorrect. Being of the view that assessee had not recei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lary in nature to the core operating expenditure. In other words, he submitted, these are nothing but overhead expenditure incurred by the assessee and has been duly considered to be a part of the cost for computing the mark-up. Thus, he submitted, the assessee having already received a mark-up on the cost incurred, no further adjustment should be made. 7. The learned Departmental Representative strongly relied upon the observations of the first appellate authority. 8. We have considered rival submissions and perused the materials on record. Though, learned counsel for the assessee has submitted before us that the assessee has no separate segment called business support services, however, on perusal of Schedule 1 to the agreement, whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is context, it is relevant to observe that the assessee has raised only one invoice on the AE towards the services rendered. On perusal of a copy of the said invoice dated 31st March, 2011 placed at page 9 of the paper-book, it is observed that the amount of ₹ 17,01,50,768/- was raised by the assessee for programme production. It does not show the bifurcation of direct cost, business support cost and the mark-up. The assessee has also not furnished any working showing the bifurcation of invoice amount to demonstrate that it also includes mark-up of 12% on all types of cost, including business support cost. 10. Therefore, based on materials available on record, we are not in a position to render a conclusive finding that the invoice ..... X X X X Extracts X X X X X X X X Extracts X X X X
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