The Pr. Commissioner of Income-tax, Gurgaon v. Nissin Brake India Pvt. Ltd - 2020-LL-0110-101

Citation	2020-LL-0110-101
Appellant Name	The Pr. Commissioner of Income-tax, Gurgaon
Respondent Name	Nissin Brake India Pvt. Ltd.
Court	HIGH COURT OF PUNJAB & HARYANA
Relevant Act	Income-tax
Date of Order	10/01/2020
Assessment Year	2013-14
Judgment	View Judgment
Keyword Tags	benchmarking of transaction • most appropriate method • cup method • royalty • product development expenditure
Bot Summary:	The appellant has claimed the following substantial question of law:- i. Whether, on the facts and in the circumstances of the case and in law, the Hon'ble ITAT was right in not appreciating the fact that CUP is most appropriate method for benchmarking of transaction of Royalty and Product development fee ii. Whether, on the facts and in the circumstances of the case and in law, the Hon'ble ITAT was right in not appreciating that the facts of the case of the assessee are different from the case of CIT vs EKL Appliances Ltd.-341 ANURADHA 2020.01.14 16:27 I attest to the accuracy and integrity of this document ITA-341-2019 2 ITR 241 iii. Whether, on the facts and in the circumstances of the case and in law, the Hon'ble ITAT was right in holding that benefit test is not applicable for the benchmarking of transaction related to Royalty and product development fee 2. Brief facts of the case are that the appellant filed his return of income for the assessment year 2013-14 on 29.11.2013 and claimed certain expenses, the same were disallowed by the TPO by introducing the 'CUP Method' and by resorting to the ALP. By the impugned order, the Tribunal has held that on fact there was no good reason for the TPO to abandon the TNMM Method and invoke the CUP Method and remanded the case back to him for a fresh decision after hearing the parties. Before us learned counsel has argued that the Tribunal could at best have set aside the assessment order and remanded the case back for fresh decision but it could not dictate what method to follow. He has not been able to show that on fact the applicability of the CUP Method is more appropriate. Since the main case has been dismissed, the pending application, if any also stands disposed of.

IN HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 106 ITA-341-2019 (O&M) Date of Decision : 10.1.2020 Pr. Commissioner of Income Tax, Gurgaon Appellant Versus Nissin Brake India Pvt. Ltd. Respondent CORAM : HON'BLE MR.JUSTICE AJAY TEWARI : HON'BLE MR. JUTICE AVNEESH JHINGAN Present : Mr. T.K.Joshi, Standing Counsel for appellant. *** AJAY TEWARI, J. (Oral) 1. This appeal has been filed against order dated 16.11.2018 passed by Income Tax Appellate Tribunal ,Delhi Bench 'I-1' New Delhi in ITA No. 6366/DEL/2017 for assessment year 2013-14 whereby matter was remanded back to Transfer Pricing Officer (TPO) for fresh consideration for setting aside impugned order. appellant has claimed following substantial question of law:- i. Whether, on facts and in circumstances of case and in law, Hon'ble ITAT was right in not appreciating fact that CUP is most appropriate method for benchmarking of transaction of Royalty and Product development fee ? ii. Whether, on facts and in circumstances of case and in law, Hon'ble ITAT was right in not appreciating that facts of case of assessee are different from case of CIT vs EKL Appliances Ltd.-341 ANURADHA 2020.01.14 16:27 I attest to accuracy and integrity of this document ITA-341-2019 (O&M) 2 ITR 241 (Del.) ? iii. Whether, on facts and in circumstances of case and in law, Hon'ble ITAT was right in holding that benefit test is not applicable for benchmarking of transaction related to Royalty and product development fee ? 2. Brief facts of case are that appellant filed his return of income for assessment year 2013-14 on 29.11.2013 and claimed certain expenses, same were disallowed by TPO by introducing 'CUP Method' (as opposed to earlier TNMM Method which had been used in past) and by resorting to ALP. By impugned order, Tribunal has held that on fact there was no good reason for TPO to abandon TNMM Method and invoke CUP Method and remanded case back to him for fresh decision after hearing parties. 3. Before us learned counsel has argued that Tribunal could at best have set aside assessment order and remanded case back for fresh decision but it could not dictate what method to follow. 4. However, he has not been able to show that on fact applicability of CUP Method is more appropriate. Neither any reason is put forth to justify departure from TNMM being followed earlier nor there is any averment of change in circumstances from previous years. In this view of matter, we see no legal infirmity in Tribunal being final fact finding authority to come to conclusion that invocation of CUP method was not justified and no reason existed for departure from past practice. 5. Consequently, appeal stands dismissed. ANURADHA 2020.01.14 16:27 I attest to accuracy and integrity of this document ITA-341-2019 (O&M) 3 6. Since main case has been dismissed, pending application, if any also stands disposed of. (AJAY TEWARI) JUDGE (AVNEESH JHINGAN) JUDGE 10.1.2020 anuradha Whether speaking/reasoned - Yes/No Whether reportable - Yes/No ANURADHA 2020.01.14 16:27 I attest to accuracy and integrity of this document Pr. Commissioner of Income-tax, Gurgaon v. Nissin Brake India Pvt. Ltd

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