TMI Blog2022 (8) TMI 386X X X X Extracts X X X X X X X X Extracts X X X X ..... nsactions with AE is not applicable. At the same time, the Tribunal was of the further view that the CUP method adopted by the TPO is also not applicable, because the TPO has compared the price of bulk drugs and intermediates sold to non-AEs in small quantity on trial basis, located in Germany, Vietnam, Greece, Japan, Turkey, Argentina, Mexico, Saudi Arabia, Malaysia and Thailand with the AE located in USA on wholesale basis. Thus, it is evident that there were some contradictions in the findings of the Tribunal, with regard to the method adopted by the TPO in determining the ALP. However, the order passed by the Tribunal, in remanding the matter to the TPO for fresh determination of ALP, in the facts and circumstances of the case, need not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Enterprises for considering appropriate adjustments if any required in the computation of taxable total income? 2. Whether the Appellate Tribunal is correct in law in setting aside the order of the Transfer Pricing Officer in the above mentioned factual matrix after rejecting the plea for adoption of resale price method which is a statutorily prescribed method in Rule 10B of the Income Tax Rules, 1962 by citing and relying upon a decision of the Mumbai Bench of the Income Tax Appellate Tribunal without referring to the other decisions cited by the Appellant in their favour thereby overlooking the decision of the Apex Court in the case reported in 88 ITR 192? 3. The brief facts leading to filing of these appeals are as follows: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ermined the taxable total income at Rs.64,10,98,696/-. Challenging the same, the appellant preferred an appeal before the Appellate Authority. 3.3. For the Assessment Year 2008-09, the appellant/assessee filed their return of income on 30.09.2008 showing the taxable total income at Rs.3,86,73,922/- under normal computation and declared book profit u/s.115JB at Rs.24,03,12,682/-. The said return was subsequently, revised on 18.03.2010, declaring the total taxable income at Rs.3,87,99,083/- without any change in the book profit u/s. 115JB of the Act. After selecting the said return of income on scrutiny as well as considering the report from the qualified accountant in Form No.3CEB detailing the international transactions, the respondent, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion Panel, Chennai, which rejected the same by order dated 31.08.2012. 3.4. Based on the aforesaid order dated 31.08.2012 passed by the Dispute Resolution Panel, the Appellate Authority, by order dated 28.02.2013, dismissed the appeal preferred by the appellant for the assessment year 2007- 08, by confirming the addition of Rs.1,00,76,210/- proposed by the TPO and adopted by the Assessing Officer in determination of ALP, while analysing the transfer pricing in computation of taxable total income. 3.5. Aggrieved against the orders dated 31.08.2012 and 28.02.2013 relating to the respective assessment years 2008-09 and 2007-08, the appellant preferred appeals before the Income Tax Appellate Tribunal. By the common order dated 18.07.2013, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proper reasons and justification, erred in rejecting the plea for sustenance of the adoption of resale price method and remitting the matter to the file of TPO for determination of arms length price of the international transactions with the Associated Enterprises for making / considering adjustments in the computation of taxable total income on the application of the Transfer Pricing Regulations under the Act. Thus, the learned counsel sought to allow these appeals by setting aside the order of the Tribunal. 5. On the other hand, the learned counsel appearing for the respondent submitted that the Resale Price Method provided under Rule 10B(1)(b)(i), can be adopted, where the property purchased or services obtained by an enterprise from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not applicable, while remanding the matter back to the TPO for fresh determination. For better appreciation, the said paragraph no.29 is reproduced below: 29. We find that the Tribunal in that case has restored the matter back to the file of the TPO to determine the fresh ALP. Thus, we find that in the assessee's case also following the above decision of the Tribunal, the Resale Price Method adopted by the assessee in determining its ALP of international transactions with AE is not applicable. We also find that the CUP Method adopted by the TPO is also not applicable because the TPO has compared the price of bulk drugs and intermediates sold to non-AEs in small quantity on trial basis, located in Germany, Vietnam, Greece, Japan, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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