9911796707
TMI Blog2024 (1) TMI 290X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal is directed against the order dated 09.08.2019 passed by the Income Tax Appellate Tribunal [in short, "Tribunal"] in ITA No. 1358/DEL/2017 concerning Assessment Year (AY) 2011-12 2. To be noted, the appellant has also preferred an appeal concerning AY 2010-11 [i.e., ITA 223/2018] in which, via the order dated 09.04.2018, questions of law were framed after admitting the said appeal. This order is appended on page 372 of the electronic case file. 3. Mr Vishal Kalra, who appears on behalf of the appellant, says that there are two broad issues which arise for consideration. 3.1. First, as to what method should be adopted for determining the Arm's Length Price (ALP). It is Mr Kalra's submission that while, according to the appellant, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the same i.e., at the price the appellant/assessee charged from its AE [i.e., the German counterpart], then the first aspect, as to which method is to be applied, would be rendered academic. 7. A perusal of paragraph 5.1 of the impugned order passed by the Tribunal is indicative of the fact that the Tribunal was constrained by the observations made by the coordinate bench in the order dated 09.04.2018 passed in ITA 223/2018 as regards the first issue concerning the method to be applied. 7.1. For the sake of convenience, paragraph 5.1 and 5.2 of the impugned order dated 09.08.2019 are extracted hereafter: "5.1 We further note that the issue of rejection of CUP by the TPO and as upheld by the ITAT was not challenged by the assessee b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vered by the AE from the third party i.e. DMRC had been passed on to BTIPL and, therefore, BTIPL could not have recovered any amount which is higher than the amount charged by the AE from the third party. It has been pleaded that although this ground was vehemently raised before the Ld. CIT (A), the Ld. CIT(A) did not specifically adjudicate this ground and proceeded to dismiss the assessee's challenge to rejection of the CUP method without considering these alternate arguments of the assessee. We have perused the order of the Ld. CIT (A) and we do note that although the Ld. CIT (A) has duly reproduced the submissions of the assessee in this regard, he, however, has not adjudicated this issue specifically. The discussion of the Ld. CIT (A) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Uncontrolled Price (CUP) Method should be applied, while the respondent/revenue contends that this aspect has already attained finality, in view of the order passed by this court in ITA No.223/2018 concerning AY 2010-11. 2.2 Second, which, in fact, is an alternate issue and is culled out in paragraph 3.2 of the order dated 21.02.2023, concerns the following aspect i.e., whether the appellant/assessee had recovered a price from its Associate Enterprise (AE), against supply of bogies/wagons, which was higher than that which the AE had received from the third party, i.e., Delhi Metro Rail Corporation (DMRC). 2.3 Mr Shailendera Singh, learned senior standing counsel, who appears on behalf of the respondent/revenue, says that since this very i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Singh says that they could be looked at by the CIT(A). 7. Having heard learned counsel for the parties, according to us, this appeal can be disposed of with the consent of learned counsel for the parties, with the following directions. 7.1 The matter is remitted to the CIT(A) for examination of the issues set forth hereafter: (i) Whether or not the appellant/assessee recovered from its AE a price higher than that which the AE received from DMRC against the supply of bogies/wagons. (ii) The comparables against which ALP should be benchmarked. (iii) Whether, in the facts and circumstances obtaining in the AY in issue, i.e., AY 2011-12, requires the usage of CUP Method for determining ALP as against TNM Method, as held by this court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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