CIT v. Cushman & Wakefield (India) (P.) Ltd.

DDIT, Dehradun vs. Bg Exploration & Production India Ltd., Mumbai

In the result ground No. 2 of the appeal of the assessee is dismissed

Bench: Shri I. C. Sudhir & Shri Prashant Maharishidy. Director Of Income Tax, Bg Exploration & Production India International Taxation, Ltd, Dehradun Bg House, Vs. Lake Boulevard Road, Hiranandani Business Park, Powai, Mumbai Pan: Aaace4569K (Appellant) (Respondent)

…ph starting from page No. 3-31 of the order of the Ld. Dispute Resolution Panel. He submitted to paper book volumes of index of various judicial precedents relied upon by him to support his contention. He relied upon:- a. CIT V Cushman & wakefield India P Ltd 367 ITR 730 b. CIT V EKL Appliances Limited 345 ITR 241 c. Reebook India Co V ACIT (del ITAT) 5857/Del/2012 d. Atotech India Limited V ACIT 104 /del/2012 e. Dresser Rand India Co V ACIT 8753/Mum/2010 f. Ericsson India P Ltd V DCIT 141/del/2011 g. GE Money Financial services P Ltd V ACIT 5882/Del/2010 h. Peri India P Ltd V DCIT ( Mum ITAT) i. Maruti Suzuki In…

M/S. Sis Live, Gurgaon vs. ACIT, New Delhi

In the result the ground No

Bench: I.C.Sudhir & Shri Prashant Maharishisis Live Acit, C/O. Srbc & Associates Llp, Central Circle-17, Room No. Vs. Golf View Corporate Tower B, 356, E-2, Sector-42, Sector Road, Gurgaon Pan:Abrfs4787L (Appellant) (Respondent)

…are not permitted to re-characterise a transaction. Further this view has been re-affirmed in the case of CIT v Cotton Naturals (I) Pvt. Ltd., (2015) 276 CTR 445. Further the Hon'ble Delhi High Court in the case of CIT v Cushman and Wakefield India Pvt. Ltd., 367 ITR 730, has held that the TPO's jurisdiction post reference is only limited to determining the arm's length price of the Page 13 of 19 transaction and is barred from going into the commercial expediency by taking the value of transaction at Nil. Hence in view of the above arguments, no addition with respect to Transfer Pricing issues was warranted and t…

Contitech India Pvt. Ltd., New Delhi vs. ACIT, New Delhi

In the result, the appeal of the assessee is partly allowed for statistical purposes

Bench: Sh. N. K. Saini, Am & Smt. Beena Pillai, Jm Ita No. 3443/Del/2016 : Asstt. Year : 2011-12 Contitech India Pvt. Ltd., Vs Asstt. Commissioner Of Income Dsm 249, Dlf Tower, Shivaji Tax, Circle-6(2), Marg, Najafgarh Road, Industrial New Delhi Area, New Delhi-110015 (Appellant) (Respondent) Pan No. Aabcr6921P Assessee By : Sh. Ajay Vohra, Sr. Adv., Neeraj Jain, Adv. & Puneet Chugh, Ca Revenue By : Sh. N. C. Swain, Sr. Dr Date Of Hearing : 04.08.2016 Date Of Pronouncement : 17.10.2016 Order Per N. K. Saini, Am: This Is An Appeal By The Assessee Against The Order Dated 29.01.2016 Of The Ao Passed U/S 144C R.W.S. 143(3) Of The Income Tax Act, 1961 (Hereinafter Referred To As The Act).

…02.2016 and the matter was remanded back to the file of the AO/TPO for reconsideration and deciding it in the conformity with law laid down in the recent judgment of the Hon’ble Delhi High Court in the case of CIT Vs Cushman & Wakefield India Pvt. Ltd. (2014) 367 ITR 730. 12. In his rival submissions the ld. DR could not controvert the aforesaid contention of the ld. Counsel for the assessee. 13. After considering the submissions of both the parties and the material on record, it is noticed that an identical issue having similar facts has already been adjudicated by this bench of the Tribunal in ITA No. 455/Del/…

Contitech India Pvt. Ltd., New Delhi vs. DCIT, New Delhi

In the result, the appeal of the assessee is allowed for statistical purposes

Bench: Sh. N. K. Saini, Am & Smt. Beena Pillai, Jm Ita No. 370/Del/2015 : Asstt. Year : 2010-11 Contitech India Pvt. Ltd., Vs Deputy Commissioner Of Income 301, Himland House, Najafgarh Tax, Circle-6(2), Road, Opp. Milan Cinema, New Delhi Karam Pura, New Delhi (Appellant) (Respondent) Pan No. Aabcr6921P Assessee By : Sh. Ajay Vohra, Sr. Adv., Neeraj Jain & Romit Katyal Advs. Revenue By : Sh. Neeraj Kumar, Sr. Dr Date Of Hearing : 26.08.2016 Date Of Pronouncement : 17.10.2016 Order Per N. K. Saini, Am: This Is An Appeal By The Assessee Against The Order Dated 05.12.2014 Of The Ao Passed U/S 144C R.W.S. 143(3) Of The Income Tax Act, 1961 (Hereinafter Referred To As The Act).

…ated 18.02.2016 the matter was remanded back to the file of the AO/TPO for reconsideration and deciding it in conformity with law laid down by the recent judgment of the Hon’ble Delhi High Court in the case of CIT Vs Cushman & Wakefield India Pvt. Ltd. (2014) 367 ITR 730. 12. In his rival submissions the ld. DR could not controvert the aforesaid contention of the ld. Counsel for the assessee. 13. After considering the submissions of both the parties and the material on record, it is noticed that an identical issue having similar facts has already been adjudicated by this bench 13 Contitech India Pvt. Ltd. of th…

Magotteaux Industries Pvt. Ltd., New Delhi vs. DCIT, New Delhi

Appeal is allowed for statistical purposes

Bench: Shri S.V. Mehrotra & Shri Kuldip Singh

…come for the year under assessment after offering Rs.8,00,216/- as prior period expenses. Ld. AR further contended that in the light of the judgment cited as CIT vs. EKL Appliances – (2012) 345 ITR 241 (Delhi) and CIT vs. Cushman & Wakefield India (P) Ltd. – 367 ITR 730 (Delhi), the matter is required to be remanded back to the TPO for verifying the facts. 7 ITA No.1592/Del./2014 Hon’ble jurisdictional High Court in judgment cited as CIT 11. vs. EKL Appliances (supra) while dealing with the identical issues returned the following findings :- “Section 92C of the Income-tax Act, 1961 - Transfer pricing - Comput…

M/S. Ge Money Financial Services Pvt. Ltd., New Delhi vs. DCIT, New Delhi

In the result, the appeal is partly allowed

Bench: Shri R.S. Syal & Shri Sudhanshu Srivastavassessment Year : 2009-10

…s to direct the TPO/AO to recompute the ALP of the international transaction in terms of the discussion made above. 20. At this juncture, we consider it appropriate to consider the ratio of the judgment in CIT v. Cushman & Wakefield (India) (P.) Ltd. (2014) 367 ITR 730 (Del), wherein it has been held that the authority of the TPO is limited to conducting transfer pricing analysis for determining the ALP of an international transaction and not to decide if such services 25 exist or benefits did accrue to the assessee. Such later aspects have been held to be falling in the exclusive domain of the AO. In that ca…

Fabindia Overseas Pvt. Ltd., New Delhi vs. DCIT, New Delhi

In the result, the appeal of the assessee is partly allowed for

Bench: Shri S.V. Mehrotra & Shri Sudhanshu Srivastavaasstt. Year: 2009-10 Asstt. Year: 2007-08

…ct figures or that even on merits the reasons for the losses are not genuine.” I.T.A. No. 1894, 1898, 2244, 2245/D/2013 Assessment Years: 2007-08, 2009-10 19. Similarly, the Hon’ble Delhi High Court has opined in CIT vs. Cushman and Wakefield (India)(P) Ltd 367 ITR 730 (Del.) : “This is the distinction between the jurisdiction of the AO and the TPO; the TPO determines whether the stated transaction value represents the ALP or not (including whether the ALP is nil), while the AO makes the decision as to validity of the deduction under section 37. This means the decision as to whether the expenditure was "laid o…

Fabindia Overseas Pvt. Ltd., New Delhi vs. DCIT, New Delhi

In the result, the appeal of the assessee is partly allowed for

Bench: Shri S.V. Mehrotra & Shri Sudhanshu Srivastavaasstt. Year: 2009-10 Asstt. Year: 2007-08

…ct figures or that even on merits the reasons for the losses are not genuine.” I.T.A. No. 1894, 1898, 2244, 2245/D/2013 Assessment Years: 2007-08, 2009-10 19. Similarly, the Hon’ble Delhi High Court has opined in CIT vs. Cushman and Wakefield (India)(P) Ltd 367 ITR 730 (Del.) : “This is the distinction between the jurisdiction of the AO and the TPO; the TPO determines whether the stated transaction value represents the ALP or not (including whether the ALP is nil), while the AO makes the decision as to validity of the deduction under section 37. This means the decision as to whether the expenditure was "laid o…

DCIT, New Delhi vs. M/S. Fabindia Overseas (P) Ltd., New Delhi

In the result, the appeal of the assessee is partly allowed for

Bench: Shri S.V. Mehrotra & Shri Sudhanshu Srivastavaasstt. Year: 2009-10 Asstt. Year: 2007-08

…ct figures or that even on merits the reasons for the losses are not genuine.” I.T.A. No. 1894, 1898, 2244, 2245/D/2013 Assessment Years: 2007-08, 2009-10 19. Similarly, the Hon’ble Delhi High Court has opined in CIT vs. Cushman and Wakefield (India)(P) Ltd 367 ITR 730 (Del.) : “This is the distinction between the jurisdiction of the AO and the TPO; the TPO determines whether the stated transaction value represents the ALP or not (including whether the ALP is nil), while the AO makes the decision as to validity of the deduction under section 37. This means the decision as to whether the expenditure was "laid o…

DCIT, New Delhi vs. M/S Fabindia Overseas (P) Ltd., New Delhi

In the result, the appeal of the assessee is partly allowed for

Bench: Shri S.V. Mehrotra & Shri Sudhanshu Srivastavaasstt. Year: 2009-10 Asstt. Year: 2007-08

…ct figures or that even on merits the reasons for the losses are not genuine.” I.T.A. No. 1894, 1898, 2244, 2245/D/2013 Assessment Years: 2007-08, 2009-10 19. Similarly, the Hon’ble Delhi High Court has opined in CIT vs. Cushman and Wakefield (India)(P) Ltd 367 ITR 730 (Del.) : “This is the distinction between the jurisdiction of the AO and the TPO; the TPO determines whether the stated transaction value represents the ALP or not (including whether the ALP is nil), while the AO makes the decision as to validity of the deduction under section 37. This means the decision as to whether the expenditure was "laid o…

Goodyear India Ltd., Faridabad vs. ACIT, New Delhi

Bench: : Shri I.C. Sudhir & Shri L.P. Sahu

…eneficial to the taxpayer. We are of the opinion that, ascertaining whether a service has actually benefitted the assessee is not within the prerogative of the tax authorities.The Hon'ble Delhi High Court in CIT v. Cushman & Wakefield (India) (P.) Ltd. (2014) 367 ITR 730(Del) has held that the authority of the TPO is limited to conducting transfer pricing analysis for determining the ALP of an international transaction and not to decide if such services exist or benefits did accrue to the assessee. Such later aspects have been held to be falling in the exclusive domain of the AO. 17. Accordingly, in view of the…

Mitsui Prime Advanced Composites India Pvt. Ltd., Gurgaon vs. DCIT, New Delhi

In the result, the appeal is allowed

Bench: Shri R.S. Syal, Am & Shri C.M. Garg, Jm Assessment Year : 2010-11

…ed or it was a duplication of services and then the AO making addition simply on the basis of recommendation of the TPO, is not in accordance with the judgment of the Hon’ble jurisdictional High Court in CIT v. Cushman & Wakefield (India) (P.) Ltd. (2014) 367 ITR 730 (Del), in which it has been held that the authority of the TPO is limited to conducting transfer pricing analysis for determining the ALP of an international transaction and not to decide if such services exist or benefits did accrue to the assessee. Such later aspects have been held to be falling in the exclusive domain of the AO. In that case,…

M/S Honda Motorcycle and Scooter India Private Ltd., Gurgaon vs. DCIT, Gurgaon

In the result, the appeal is partly allowed

Bench: Shri R.S. Syal, Am & Shri C.M. Garg, Jm Assessment Year : 2011-12

…s relating to three-wheelers. It is this amount of Rs.22.85 crore paid as commission by the assessee, for which addition has been made on the basis of the TPO determining ALP at Nil. 5. Their Lordships in CIT v. Cushman & Wakefield (India) (P.) Ltd. (2014) 367 ITR 730 (Del), have held that the authority of the TPO is limited to conducting transfer pricing analysis for determining the ALP of an international transaction and not to decide if such services exist or benefits did accrue to the assessee. Such later aspects have been held to be falling in the exclusive domain of the AO. In that case, it was observed…

Jcb India Ltd., New Delhi vs. DCIT, New Delhi

In the result, the appeal is allowed for statistical purposes

Bench: Shri R.S. Syal, Am & Shri Kuldip Singh, Jm Assessment Year : 2011-12

…st contention is concerned, the ld. AR submitted that the AO did not make any disallowance u/s 37(1) of the Act on account of payment of royalty. Relying on the judgment of the Hon'ble Delhi High Court in CIT v. Cushman & Wakefield (India) (P.) Ltd. (2014) 367 ITR 730 (Del), he contended that not having made any addition u/s 37(1), the AO was debarred from making addition towards transfer pricing adjustment on this score. This was strongly opposed by the ld. DR. 6.2. We are unconvinced with the submission advanced on behalf of the assessee. Their Lordships in the afore referred case have held that the author…

M/S. Contitech India Pvt. Ltd., New Delhi vs. DCIT, New Delhi

In the result, the appeal is partly allowed for statistical purposes

Bench: Shri R.S. Syal, Am & Shri Kuldip Singh, Jm Assessment Year : 2009-10

…e is no independent discussion in the assessment order about the disallowance of royalty payment, except for reproduction of the relevant parts from the order of the TPO. 9. The Hon'ble Delhi High Court in CIT v. Cushman & Wakefield (India) (P.) Ltd. (2014) 367 ITR 730(Del) has held that the authority of the TPO is limited to conducting transfer pricing analysis for determining the ALP of an international transaction and not to decide if such services exist or benefits did accrue to the assessee. Such later aspects have been held to be falling in the exclusive domain of the AO. In that case, it was observed t…

Headstrong Services India Pvt. Ltd., New Delhi vs. DCIT, New Delhi

In the result, the appeal is partly allowed

Bench: Shri R.S. Syal, Am & Shri Kuldip Singh, Jm Assessment Year : 2008-09

…E and then reimbursed, would not alter the position. Further, no material has been placed on record to show that these re-imbursements were without any mark-up. The Hon’ble jurisdictional High Court in CIT VS. Cushman And Wakefield (India) Pvt. Ltd. (2014) 367 ITR 730 (Del) has 38 held that reimbursement of expenses even without any mark-up are also required to be processed under TP provisions by benchmarking under one of the methods. 22.5. Be that as it may, we find that both these companies are also into 23.1. We have perused the relevant part of the Annual accounts of this company, which has been reproduce…

Avon Beauty Products India Pvt. Ltd., Gurgaon vs. ACIT, New Delhi

In the result, the appeal is allowed for statistical purposes

Bench: Shri R.S. Syal, Am & Ms Suchitra Kamble, Jm Assessment Year : 2007-08

…saction at Nil without carrying out any independent analysis or evaluation as to whether or not such intra-group services were required/availed by the assessee. 5. The Hon'ble Delhi High Court in the case CIT v. Cushman & Wakefield (India) (P.) Ltd. (2014) 367 ITR 730(Del) has held that the authority of the TPO is limited to conducting transfer pricing analysis for determining the ALP of an international transaction and not to decide if such services exist or benefits did accrue to the assessee. Such later aspects have been held to be falling in the exclusive domain of the AO. 6 In that case, it was observ…