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TMI Blog2023 (2) TMI 220X X X X Extracts X X X X X X X X Extracts X X X X ..... to be taken note of. The assessee before us is a company engaged in the business of manufacturing and sale of the paste in collaboration with Colgate Palmolive Company, USA. During the course of the proceedings before the Transfer Pricing Officer it was noticed that the assessee has made a payment of Rs. 1,46,71,277/- to the said company for under a technical services agreement for upkeep and maintenance of their project. The Transfer Pricing Officer for the detailed reasons which are as under:- It is seen from record that assessee claimed payment of technical assistance fee of Rs.1,46,71,277 to Colgate Palmolive Company, USA(CP.,USA). Assessee filed audit report in Form-3CEB in respect of the international transaction. Assessee Company's sole customer is Colgate Palmolive India Ltd. Assessee Company is completely dependent on CP, USA for technical know-how. Section 92A(2)(g) reads as under: Section 92A(2)(g): (For the purposes of sub-section i (1), two enterprises shall be deemed to be associated enterprises, if at any time during the previous year,) g) the manufacture or processing of goods of articles or business carried out by enterprises is wholly dependent on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmits that the technical assistance received, through technical reports, personnel visit, online support and trouble shooting from CP-USA is extremely valuable and essential to the assessee for carrying on its business." Assessee's submission has been carefully considered. Assessee entered into agreement with CP,USA provision of technical assistance. It is seen from the agreement that CP,USA agreed.... "to depute to the plant or premises of sunshine at Hyderabad, such number of its technicians at such time and for such period or periods as may be mutually agreed upon by the parties to be necessary for the purpose of effectively rendering or providing technical assistance to Sunshine and/or its employees to manufacture and produce the said product in India. All expenses on account of lodging, boarding and services related thereto and/or travel to/from/within India shall be borne and paid by SUNSHINE." It is also seen from the record that assessee company entered into an agreement, for right to use the know-how to manufacture toothpaste with CP.USA wherein know-how is defined as under: "Know-how" shall be construed to mean all secret information and data relating to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs u/s. 271(1)(C). Disallowance Rs.1,46,71,277 4. It was in this backdrop that an ALP adjustment of Rs. 1,46,71,277/- was made by the Assessing Officer in the course of the assessment proceedings. 5. Aggrieved the assessee carried the matter in appeal before the learned CIT(A). 6. The assessee raised two objections, first that the assessee is not an associated enterprise of the Colgate Palmolive USA, and as such the question of ALP adjustment does not arrive, and second that even on merits the impugned ALP adjustment of Rs. 1,46,71,277/- is not sustainable in law. On none of the points the learned CIT(A) interfere in the matter. The learned CIT(A) held that the assessee and the Colgate Palmolive are associated enterprise by virtue of section 92B(2) and that the ALP of Rs. 1,46,71,277/- was warranted on the facts of this case. While doing so the learned CIT(A) inter alia observed as follows:- 6.7 Since, in the instant case, the appellant has failed to produce any evidence to prove their claim of rendering of technical assistance by the A during the previous year, relying on the above decisions, I am of the view that, the TPO and the AO, were justified in rejecting such claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assed by the. TPO, I find that before holding the ALP of such transaction as NIL, he has discussed the facts and reasons for the same in detail at page 13 to 16 of his order. During such proceedings, when the TPO has asked the appellant to produce evidence in support of the claim of rendering of technical assistance by CP. USA, the appellant has failed to produce the same. Since the appellant failed to produce even copy of email, notes etc. in that regard, the TPO held that such claim made by the appellant is not genuine and accordingly, he disallowed the said amount. In support of this disallowance, he referred to the decision of Hon'ble Madras High Court in CIT vs. Krishnaveni Ammal, 158 ITR 872. 6.5 Before me, merely making such general submissions, the appellant has not been able to produce any evidence in support of such claim regarding rendering of technical assistance by the said AE during the previous year. In ground no.3.3, though the appellant has stated that the correspondence through emails, notes etc. being confidential and sensitive were never maintained as record, there is no merit in such contention. When an assessee makes a claim for deduction of certain exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee without just cause. It is submitted that when the revenue authorities are denuded of the powers of raising point which has received finality in the case of one of the assessee's in other cases, it is futile to even suggest that the matter which has reached finality in assessee's own case can be raised again. We are thus urged that for the short reason of the revenue authorities having accepted the position has explained above in the preceding year this appeal must be allowed and the impugned ALP adjustment must be quashed. 11. The learned Departmental Representative has two short points. The first is that she wants to peruse the details of assessment years 2001-02, 2002-03 & 2003-04 before taking a call on whether actually the adjustment was made or not. Second point by the learned Departmental Representative is that while she fairly accepts that the grounds of appeal as available on the face of it this issue was not raised in appeal before the Tribunal, she would nevertheless try to find out as to what was the reason of not so raising ground of appeal. As for the legal principles emerging from the judgment of Hon'ble Supreme Court in the case of Radhasoami Satsang (supra) an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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