TMI Blog2023 (4) TMI 471X X X X Extracts X X X X X X X X Extracts X X X X ..... is accepted and the TPO adjustment is deleted. Thus we uphold the contention of the assessee and delete the TP Adjustment.Appeal of the assessee is allowed. - ITA No. 831/Del/2021, S.A NO. 82/Del/2022 in (ITA No. 831/Del/2021) - - - Dated:- 10-4-2023 - Dr. B. R. R. Kumar, Accountant Member And Sh. Yogesh Kuamr U.S, Judicial Member For the Applicant : Sh. S. S Tomar, Adv And Ms. Sh. Yishu Goel, AR For the Respondent : Sh. Mrinal Kumar Das, SR. DR ORDER SH. YOGESH KUAMR U.S, JM This appeal is filed by the assessee against the order dated 30.03.2021 of the ITO, National E-Assessment Centre, Delhi for assessment year 2016-17. 2. The ground of appeal are as under:- 1. That on facts and circumstances of the case and in law, the AO erred in assessing the income of the Appellant under the normal provisions of the Act at INR 1,45,83,61,480, in pursuance to the directions of the Dispute Resolution Panel ( DRP ), as against the returned income of INR 75,52,83,580. 2. That on the facts and in the circumstances of the case and in law, the order passed by the learned Assessing Officer ( AO ) is bad in law and void ab-initio. 3. That on the facts and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reciating that the DRP / TPO, while applying CUP method failed to apply any comparable uncontrolled transaction price/ data for computing the arm's length price for the intra-group services received by the Appellant; 4.7. Not appreciating that even at a transactional level, the margin earned by AEs from provision of intra-group services were at arm's length; 4.8. Not appreciating the fact that since the Hon'ble Tribunal in the earlier years has accepted the need and benefit test for the intragroup services, the arm's length price of the said intragroup services cannot be assumed to be Nil and the adjustment made ought to be deleted; 4.9. Ignoring the decisions of the Hon'ble High Court and the Hon'ble Tribunal for earlier assessment year(s) wherein transfer pricing adjustment on account of intra group services has been deleted. 5. That on the facts and in the circumstances of the case and in law, the education cess ( EC ) and higher and secondary education cess ( SHEC ) on income-tax is an allowable expenditure for computing total income as per the provisions of the Act. 6. That on the facts and in the circumstances of the case and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal has allowed the appeal in favour of the assessee wherein the Tribunal has accepted that Intra Group Services received by the assessee in the respective years to be at Arm s Length. As against the order of the Tribunal, the Department had approached the Hon'ble High Court for the Assessment Year 2007-08 to 2011-12 which has been dismissed by the Hon'ble High Court which are placed at Page No. 241 to 306 of the paper book Volume No. 1. Therefore submitted that the present Appeal may be allowed. 7. On the other hand, Ld. DR relied on the order of the CIT(A). 8. We have heard the parties perused the material available on record and gave our thoughtful consideration. The Co-ordinate Bench of the Tribunal in Assessee s own case for the Assessment Year 2009-10 in ITA No. 4720/Del/2017 has held as under:- 19. Before us, the ld. AR submitted that the ITAT, in the Assessee s own case for AY 2007-08 and AY 2008-09, after understanding the nature of the Assessee's business operations and the nature of various intra-group services received by the Assessee held that there existed a direct, nexus between the intra-group services received by the Assessee vis-a-vis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant extracts of Co-ordinate Bench of ITAT Delhi in its own case for the A.Y. 2008-09 in ITA No. 4934/Del/2014 and 4869/Del/2014 is as under: 33. Further, the Id. DR had raised a contention that the assessee has not demonstrated how the services received are beneficial to the assessee. We are of the opinion that, ascertaining whether a service has actually benefitted the taxpayer or not is not within the prerogative of the Tax Authorities. To avail a service or not is a commercial decision which cannot be challenged by the Tax Authorities. 22. The Co-ordinate bench of ITAT in the Assessee s case for AY 2008-09 held that OECD guidelines end an aggregated benchmarking approach in a situation, where the underline transactions are closely linked to the core business operations. The relevant extracts in this regard are reproduced below: 28. We are of the considered opinion that, with regard to PSM and RIS segments, the mark-up charged by the AEs is within the +/-5% range, allowed under second proviso to section 92C of the Indian Income Tax Act, 1961. Accordingly, these services can be considered to be at arm's length; and with regard to of GVP services, VIPFS servic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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