UPS EXPRESS PVT. LTD. (FORMERLY KNOWN AS UPS JETAIR EXPRESS PVT. LTD.), MUMBAI V. DCIT - 11 (1)(2), MUMBAI

ITA 7320/MUM/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 2800 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-03-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: J
• Assessment Year: 2014-2015
• Appeal Filed On: 21-12-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A MOHAN
• Keywords: Transfer pricing; International transaction; Tax effect; Set aside
• Section: 92C; 92D; 10B; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH J, MUMBAI BEFORE SHRI PAWAN SINGH (JM) & SHRI S.RIFAUR RAHMAN (AM) ITA NO. 7320/MUM/2018(AY : 2014-15) UPS EXPRESS PRIVATE LTD (FORMERLY KNOWN AS UPS JETAIR EXPRESS PRIVATE LTD) 6-A, SHYAM OFF JVLR, MAJAS VILLAGE, JOGESHWARI (E), MUMBAI-400 060 PAN : AAACU4322N VS DY.CIT-11(1)(2), ROOM NO. 1, AAYAKAR BHAWAN, M.K. ROAD, MUMBAI -400020 APPELLANT RESPONDEDNT APPELLANT BY SHRI NITESH JOSHI (A.R.) RE SPONDENT BY SHRI A MOHAN (CIT, DR) DATE OF HEARING 27-01-2020 DATE OF PRONOUNCEMENT 04-03-2020 O R D E R PER PAWAN SINGH, JM : 1. THIS APPEAL BY ASSESSEE IS DIRECTED AGAINST THE ASS ESSMENT ORDER DATED 31-10-2018. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- 1. GROUND NO. 1 - TRANSFER PRICING ADJUSTMENT IN RESPECT OF TECHNICAL KNOW-HOW FEES OF INR 11,02,52,900 PAID BY APPELLANT TO ITS ASSOCIATED ENTERPRISE ('AE') 1.1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AN D IN LAW, THE LEARNED TRANSFER PRICING OFFICER ('TPO') / ASSESSING OFFICE R ('AO') ERRED IN HOLDING, AND THE HON'BLE DISPUTE RESOLUTION PANEL ( 'DRP') FURTHER ERRED IN DIRECTING, THAT THE ARM'S LENGTH PRICE IN RESPECT O F TECHNICAL KNOW-HOW FEES OF INR 13,02,52,900 PAID BY THE APPELLANT TO ITS AE WAS 'NIL'. 1.2 ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED TPO / AO ERRED AND THE HON'BLE DRP FURTHER ERRED IN NOT ACCEPTING THE COMPUTATION OF ARM'S LENGTH PRICE CARRIED OUT BY TH E APPELLANT WHICH WAS IN ACCORDANCE WITH THE TRANSACTIONAL NET MARGIN MET HOD PRESCRIBED UNDER ITA 7320/MUM/2018 UPS EXPRESS P LTD 2 SECTION 92C(J) OF THE INCOME-TAX ACT, 1961 ('THE AC T') READ WITH RULE 10B(L)(E) OF INCOME-TAX RULES,1962 ('THE RULES'). 1.3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED TPO ACTED BEYOND HIS JURISDICTION AND CONTRARY TO T HE EXPRESS PROVISIONS OF LAW WHILE DETERMINING THE ARM'S LENGTH PRICE IN RES PECT OF TECHNICAL KNOW- HOW FEES TO BE 'NIL'. 1.4. ON THE FACTS AND CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED TPO / AO AND HON'BLE DRP HAVE OVERLOOKED THE RELEVA NT MATERIAL, INFORMATION AND EVIDENCE IN SUPPORT OF PAYMENT OF T ECHNICAL KNOW-HOW FEES AND INSTEAD BASED THEIR CONCLUSION ON SUCH MAT ERIAL AND EVIDENCE WHICH IS EITHER FACTUALLY INCORRECT OR IRRELEVANT R ENDERING THEIR ORDER TO BE PERVERSE, ILLEGAL AND BAD IN LAW. THE APPELLANT PRAYS THAT THE SAID INTERNATIONAL TRA NSACTION BE CONSIDERED TO BE AT ARM'S LENGTH. WITH REGARD TO GROUND 2 TO 4, WHILE THERE IS NO TRA NSFER PRICING ADJUSTMENT / FINANCIAL IMPACT, THE APPELLANT OBJECTS TO THE ER RONEOUS APPROACH ADOPTED BY THE LEARNED TPO / AO AND HON'BLE DRP. 2. GROUND NO. 2 - INCORRECT IMPUTATION OF MARK-UP ON RECOVERY OF EXPENSES BY THE APPELLANT FROM ITS AE 2.1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED TPO / AO ERRED IN HOLDING, AND THE HON'BLE DRP FURT HER ERRED IN DIRECTING, THAT THE APPELLANT PROVIDES SERVICES TO ITS AE THRO UGHOUT THE YEAR AND THEREBY LEVYING A MARK-UP ON RECOVERY OF EXPENSES. 3. GROUND NO. 3 - INCORRECT REJECTION OF A COMPAR ABLE COMPANY 4.1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED TPO / AO ERRED AND HON'BLE DRP FURTHER ERRED IN REJECTI NG A COMPARABLE COMPANY I.E. PATEL INTEGRATED LOGISTICS LIMITED (SE GMENTAL) SELECTED BY THE APPELLANT BASED ON THE CONTEMPORANEOUS DATA IN THE TRANSFER PRICING STUDY REPORT MAINTAINED AS PER SECTION 92D OF THE A CT READ WITH RULE 10D OF THE RULES. 4. GROUND NO. 4 - ERRED IN USING SINGLE YEAR DATA FOR MARGIN COMPUTATION 5.1. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AND I N LAW, THE LEARNED AO / TPO ERRED AND HON'BLE DRP FURTHER ERRED IN NOT CONSIDERING THE ITA 7320/MUM/2018 UPS EXPRESS P LTD 3 REQUIREMENT OF PROVISO TO RULE 10B(4) OF THE RULES WHILE ANALYZING THE DATA FOR COMPARABILITY OF COMPANIES. 2. AT THE OUTSET OF HEARING, THE LEARNED AUTHORISED RE PRESENTATIVE (LD.AR) OF THE ASSESSEE SUBMITS THAT HE DID NOT WANT TO PRE SS GROUNDS 2,3&4 DUE TO LOW TAX EFFECT. THE LD.AR SUBMITS THAT NON PRESSING OF THESE GROUNDS OF APPEAL SHOULD NOT BE CONSIDERED AS ADMIS SION ON THE PART OF ASSESSEE AS SIMILAR GROUNDS OF APPEAL ON SIMILAR AD DITION / ADJUSTMENT HAS BEEN RAISED BY ASSESSEE IN OTHER ASSESSMENT YEA RS. 3. ON THE OTHER HAND, THE LEARNED DEPARTMENTAL REPRESE NTATIVE (LD.DR) FOR THE REVENUE SUBMITS THAT HE HAD NO OBJECTION IF THE ASSESSEE DID NOT CONTEST THESE GROUNDS OF APPEAL ON MERIT AND THAT T HE SAME MAY BE DISMISSED AS NOT PRESSED. 4. WE HAVE CONSIDERED THE SUBMISSION OF BOTH THE PARTI ES AND TREATED THE GROUNDS 2, 3 &4 AND DISMISSED THE GROUNDS OF APPEAL BEING NOT PRESSED. HOWEVER, WE ACCEPT THE CONTENTION OF LD.A R OF THE ASSESSEE THAT NOT CONTESTING OF THESE GROUNDS OF APPEAL ON M ERIT WILL NOT BE TAKEN AS ADMISSION AGAINST THE ASSESSEE FOR OTHER Y EARS. 5. GROUND 1 RELATES TO TRANSFER PRICING ADJUSTMENT IN RESPECT OF TECHNICAL KNOW-HOW FEES OF RS.11.02 CRORES PAID BY ASSESSEE T O ITS AE. AT THE OUTSET OF HEARING, THE LD.AR OF THE ASSESSEE SUBMIT S THAT THIS GROUND OF APPEAL IS ALSO COVERED IN FAVOUR OF ASSESSEE AND AGAINST THE REVENUE BY THE ORDER OF TRIBUNAL IN ASSESSEES OWN CASE FOR AY 2013-14 IN ITA 7320/MUM/2018 UPS EXPRESS P LTD 4 ITA NO.6318/MUM/2017 DATED 27-09-2019. THE LD.AR O F THE ASSESSEE, FURTHER INVITED OUR ATTENTION TO PARA 5. 3 OF DIRECTION OF DRP WHEREIN THE ORDER OF TPO WAS AFFIRMED BY LD.DRP BY FOLLOWING ITS ORDER FOR AY 2013-14 DATED 25-04-2017. THE LD.AR O F THE ASSESSEE FURTHER SUBMITS THAT THE TPO WHILE MAKING BENCHMARK ING OF INTERNATIONAL TRANSACTIONS RELATED WITH PAYMENT OF TECHNICAL ASSISTANCE FEES TO ITS ASSOCIATED ENTERPRISES (AE) HAS NOT FOL LOWED THE METHOD FOR BENCHMARKING THE ARMS LENGTH PRICE (ALP) AS PRESCR IBED UNDER SECTION (U/S) 92C READ WITH RULES 10B. SIMILAR MET HOD WAS ADOPTED BY AO FOR ASSESSMENT YEAR 2013-14 WHICH WAS AFFIRME D BY DRP FOR THE YEAR UNDER CONSIDERATION, THE DRP FOLLOWED THE ORDER FOR 2013-14 WHICH HAS BEEN SET ASIDE BY TRIBUNAL. THEREFORE, T HE ISSUE RAISED BY ASSESSEE IS SQUARELY COVERED IN FAVOUR OF THE ASSES SEE BY THE ORDER OF TRIBUNAL. 6. THE LD.AR FOR THE ASSESSEE FURTHER SUBMITS THAT THE CONTENTION OF LD. DR TO RESTORE THE ISSUE TO THE AO / TPO FOR FRESH D ETERMINATION OF ALP WAS ALSO NOT ACCEPTED BY THE TRIBUNAL. THEREFO RE, THE CONTENTION, IF ANY THAT MAY BE RAISED BY LD. DR SHOULD NOT BE A CCEPTED FOR THE YEAR UNDER CONSIDERATION, AS WELL. 7. ON THE OTHER HAND, THE LD. DR FOR THE REVENUE, AFTE R GOING THROUGH THE ORDER OF TRIBUNAL FOR AY 2013-14 DATED 27-09-2009 A ND THE ORDER OF ITA 7320/MUM/2018 UPS EXPRESS P LTD 5 LD.DRP SUBMITS THAT ON SIMILAR GROUNDS OF APPEAL AN D FOR SIMILAR TRANSACTION, THE GROUNDS OF APPEAL FOR AY 2013-14 W AS ALLOWED IN FAVOUR OF ASSESSEE. HOWEVER, THE LD. DR FOR THE RE VENUE SUBMITS THAT SINCE THE AO / TPO HAS NOT DETERMINED THE ALP OF TR ANSACTION WITH ITS ASSOCIATE ENTERPRISES BY FOLLOWING THE METHOD PROVI DED UNDER SECTION 92C READ WITH RULES 10B, THEREFORE, THE ISSUE SHOUL D BE RESTORED TO THE FILE OF TPO / AO FOR DETERMINING ALP OF A TRANSACTI ON AFRESH, BY RESORTING TO THE METHODS PRESCRIBED UNDER SECTION 9 2C READ WITH RULES 10B OF THE I.T. RULES. 8. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PART IES, PERUSED THE RECORDS CAREFULLY AND HAVE GONE THROUGH THE ORDERS OF AUTHORITIES BELOW AS WELL AS THE ORDER PASSED BY THE CO-ORDINAT E BENCH FOR ASSESSMENT YEAR 2013-14 DATED 27-09-2019. 9. WE HAVE NOTED THAT CONSEQUENT UPON REPORTING INTER NATIONAL TRANSACTION BY ASSESSEE WITH ITS AE IN ITS RETURN O F INCOME IN FORM - 3CEB, THE AO MADE REFERENCE TO TRANSFER PRICING OFF ICER (TPO) FOR COMPUTATION OF ALP OF INTERNATIONAL TRANSACTIONS. T HE ASSESSEE BESIDES OTHER INTERNATIONAL TRANSACTION, REPORTED T RANSACTION OF PAYMENT OF TECHNICAL ASSISTANT FEE TO UPSAI OF RS. 110,252, 900/-. THE ASSESSEE IN ITS TRANSFER PRICING STUDY REPORT (TPSR ), HAS ADOPTED TRANSACTION NET MARGIN METHOD (TNMM), AS MOST APPRO PRIATE. THE ITA 7320/MUM/2018 UPS EXPRESS P LTD 6 ASSESSEE IDENTIFIED 6 COMPARABLE COMPANIES. THE AS SESSEE HAS SHOWN ITS PROFIT LEVEL INDICATOR (PLI) AT 6.36% AGAINST T HE ARITHMETICAL MEAN OF 6 COMPARABLE COMPANIES AT 2.48% AND CLAIMED THAT ITS TRANSACTION WAS AT ARMS LENGTH. THE TPO REJECTED TWO OF ASSES SEES COMPARABLES AND ON THE BASIS OF FINAL SET OF FOUR COMPARABLES, THE TPO DETERMINED ARITHMETIC MEAN AT 1.31 AGAINST PLI TRANSFERRED BY ASSESSEE AT 6.36%. THE TPO, AFTER STUDYING THE TPSR, TOOK THE VIEW THA T ASSESSEE HAS PAID FOR RECEIVING TECHNOLOGY FROM ITS AE, BUT HAS NOT CLARIFIED THE TECHNOLOGY RECEIVED AS NO DETAILS WERE PROVIDED. 10. THE ASSESSEE WAS ISSUED SHOW CAUSE NOTICE TO TREAT THE PAYMENT AS FEES FOR TECHNICAL SERVICES. THE ASSESSEE, VIDE IT S REPLY DATED 20-06- 2017, FURNISHED DETAILED REPLY. IN THE REPLY, THE ASSESSEE STATED THAT THEY HAVE ENTERED INTO TECHNOLOGY LICENCE AGREEMENT WITH ITS AE IN UAE WHEREIN AE GRANTED EXCLUSIVE RIGHT TO USE TECHN ICAL INFORMATION IN INDIA. THE SERVICES PROVIDED BY ITS AE UNDER TH E AGREEMENT, THE ASSESSEE WAS REQUIRED TO PAY A TECHNICAL KNOW-HOW F EES AT THE RATE EQUAL TO 2% OF GROSS EXPORT REVENUE. THE ASSESSEE ALSO FURNISHED THE DETAILS OF GROSS EXPORT REVENUE AND THE WORKING OF PAYMENT FOR TECHNICAL KNOWHOW FEES. THE ASSESSEE FURTHER STATE D THAT IT HAS UTILISED ADVANCE MANAGEMENT TECHNIQUE TECHNOLOGY KNOW-HOW RE CEIVED FROM ITS AE IN ITS DAY TODAY BUSINESS. THIS TECHNIQUE / KNOW HOW ENABLED ITA 7320/MUM/2018 UPS EXPRESS P LTD 7 ASSESSEE TO RENDER A COMPREHENSIVE PACKAGE DELIVERY SERVICES TO ITS CUSTOMER IN MORE CONVENIENT AND FINISHED MANNER, WH ICH CONSTITUTES OF DATA LINE SYSTEM OF REAL TIME TRACKING OF SEGMEN TS TO ENABLE FEASIBILITY TO THE CUSTOMERS ON THE MOVEMENT OF GOO DS AND PROVIDE DELIVERY CONFIRMATION FOR THE SHIPMENTS. THIS TECH NOLOGY NOT ONLY ARMS ASSESSEE TRACK SHIPMENT, BUT ALSO ALLOWS ALLIE D FUNCTION SUCH AS REGARDING SHIPMENT LIABLE DETAILS AND REVENUE IN VA RIOUS BILLING AND TRADE RECEIVABLES MUTUALS AND ELIMINATES SUBSTANTI AL MANOEUVRE EFFORTS. THE ASSESSEE CLAIMED THAT PAYMENT OF TECH NICAL KNOWHOW FEES IS INTRINSICALLY LINKED AND IS NECESSARY FOR THE BU SINESS OF ASSESSEE. THE ASSESSEE ALSO FURNISHED DETAILS OF RECEIPT AND BENEFIT TEST. AFTER CONSIDERING THE REPLY OF ASSESSEE, THE TPO CONCLUDE D THAT FEES FOR TECHNICAL INFORMATION TECHNOLOGY / TRAINING, ETC, T HE ASSESSEE HAS NOT FURNISHED ANY DOCUMENT TO ESTABLISH RECEIPT OF SO-C ALLED TECHNOLOGY, TRAINING, ETC. DURING THE YEAR. THE AO, ON THE BAS IS OF STATEMENT OF MR. STEPHEN, ALLEGEDLY RECORDED DURING AY 2010-11, WHICH WAS ALLEGEDLY CONFIRMED BY RAGINI KUMAR, MARKETING MANA GER, CONCLUDED THAT TECHNOLOGY USED BY ASSESSEE IS VERY OLD, THERE WAS NO NEW TECHNOLOGY PROVIDED DURING THE YEAR. THE SAID TECH NOLOGY IS AVAILABLE FOR THE WORLD FOR MORE THAN 15 20 YEARS. NOTHING NEW HAS BEEN PROVIDED TO ASSESSEE BY ITS AE. THERE IS NO TRAINI NG FROM AE. THE ITA 7320/MUM/2018 UPS EXPRESS P LTD 8 TPO CONCLUDED THAT THE ASSESSEE FAILED TO BENEFIT T EST. THE ASSESSEE HAS NOT SUBMITTED ANY DOCUMENT TO ESTABLISH THAT AS SESSEE HAS RECEIVED THE TRAINING, TECHNOLOGY, ETC. NO EVIDENCE IS FURN ISHED TO SUBSTANTIATE FOR THE NEED OF SUCH PAYMENT. AS BENEFIT RECEIVED FOR ABOVE EXPENSES HAS NOT BEEN SUBSTANTIATED, THE ALP IS DETERMINED A S NIL. THE TPO CONCLUDED IN THE FOLLOWING MANNER:- THEREFORE, THE ASSESSEE HAS FAILED THE BENEFIT TES T. ASSESSEE HAS NOT SUBMITTED ANY DOCUMENT TO ESTABLISH THAT ASSESSEE H AS RECEIVED THE TRAINING, TECHNOLOGY ETC. ASSESSEE, HAS FAILED TO SUBSTANTIAT E WITH EVIDENCE THE NEED FOR THE SAID PAYMENTS. SINCE THE BENEFIT RECEIVED F OR THE ABOVE EXPENSE HAS NOT BEEN SUBSTANTIATED, THE ALP IS DETERMINED AS NI L, AS IN A ARM'S LENGTH SCENARIO NO INDEPENDENT PERSON WOULD MAKE ANY PAYME NTS WITHOUT BENEFITS RECEIVED. FURTHER, DURING THE COURSE OF HEARING, TH E ASSESSEE WAS ASKED TO DEMONSTRATE THE FACT THAT SERVICES WERE ACTUALLY RE NDERED. THE OTHER ASPECT TO NOTE IS THE MANNER IN WHICH THE TECHNICAL KNOW HOW FEES IS DETERMINED. THE SAME IS DETERMINED AS 50% OF THE PROFIT OR 2% OF THE REVENUE WHICHEVER IS LOWER. THE PROFIT IS THE NET P ROFIT BEFORE TAX. THUS, THE SAME HAS GOT NOTHING TO DO WITH THE ACTUAL BENEFIT THAT IS RECEIVED; IT IS NOT LINKED TO ANY ANALYSIS OF WHETHER ANY TECHNICAL KNO W HOW IS RECEIVED; IF A PROFIT IS MADE, HALF OF IT HAS TO BE PASSED ON. THU S, THERE IS NO CORRELATION BETWEEN THE SERVICE AND THE PAYMENT. THE PAYMENT IS IN THE NATURE OF A PROFIT DISTRIBUTION THOUGH DONE UNDER THE HEAD OF T ECHNICAL KNOWHOW. IT IS A DEFINITE CONCERN EXPRESSED IN OECD GUIDELINES AS WE LL THAT THE TRANSACTIONS BETWEEN ASSOCIATED ENTERPRISES CAN BE ARRANGED IN S UCH A MANNER THAT DO NOT REFLECT THE SUBSTANCE OF THE TRANSACTION; AND IN TH E INSTANCE CASE, THE SAME IS A CLEAR EXAMPLE. THE AMOUNT PASSED ON TO THE AE DOE S NOT SATISFY THE BENEFIT TEST AND HENCE, THE OF THE SAME IS TREATED TO BE ZE RO. ITA 7320/MUM/2018 UPS EXPRESS P LTD 9 11. THOUGH ASSESSEE FILED OBJECTION BEFORE DRP, THE UPH ELD THE ACTION OF TPO BY RELYING ON THE ORDER OF THEIR PREDECESSOR FO R ASSESSMENT YEAR 2013-14. 12. WE HAVE NOTED THAT IN APPEAL FOR AY 2013-14, ON SI MILAR SET OF FACTS FOR SIMILAR PAYMENT OF TECHNICAL ASSISTANCE FEES TO ITS AE, SIMILAR TREATMENT WAS MET OUT BY AO, AND ON OBJECTION BEFOR E DRP IT WAS UPHELD. ON FURTHER APPEAL THE TRIBUNAL, AFTER CONSI DERING THE SIMILAR SUBMISSION, PASSED THE FOLLOWING ORDER:- 6.1. WE FIND THAT THE ID. TPO HAVING NOT DETERMINE D THE ALP IN CONFORMITY WITH THE STATUTORY PROVISION AND IN THE PROCESS HAV ING FAILED TO DEMONSTRATE THAT ALP SHOWN BY THE ASSESSEE IS INCORRECT, THE CO NTENTIONS OF THE ID. DR TO RESTORE THE ISSUE TO THE FILE OF THE ID. TPO FOR FR ESH DETERMINATION OF THE ALP, IS UNACCEPTABLE. RESPECTFULLY FOLLOWING THE AF ORESAID DECISION, WE HOLD THAT THERE IS NO PROVISION MADE IN THE STATUTE EMPOWERING THE ID. TPO FOR DETERMINING THE ALP OF A PARTICULAR INTERNATION AL TRANSACTION AT NIL WITHOUT RESORTING TO ANY METHODS PRESCRIBED. SINCE, THE RELIEF IS GRANTED TO THE ASSESSEE ON THE PRELIMINARY ISSUE OF THE ID. TP O NOT FOLLOWING THE PRESCRIBED METHODS AS PROVIDED IN THE STATUTE FOR D ETERMINATION OF ALP, THE OTHER ARGUMENTS ADVANCED BY THE ID. AR AND THE ID. DR ON MERITS OF ALP ADJUSTMENT ARE LEFT OPEN AND NOT ADJUDICATED HEREIN . ACCORDINGLY, THE GROUND NOS.1.1 TO 1.3 RAISED BY THE ASSESSEE ARE ALLOWED. 13. FROM THE AFORESAID DECISION OF TRIBUNAL IN AY 2013- 14, WE FIND THAT TPO DETERMINED THE ALP OF INTERNATIONAL TRANSACTION , WITHOUT RESORTING TO THE METHOD PRESCRIBED IN THE ACT, WHIC H HAS BEEN SET ASIDE BY THE TRIBUNAL. WE HAVE FURTHER NOTED THAT IN AY 2 013-14 THE LD. DR FOR THE REVENUE ALSO MADE PRAYED TO RESTORE THE ISS UE TO THE FILE OF TPO ITA 7320/MUM/2018 UPS EXPRESS P LTD 10 FOR FRESH DETERMINATION OF ALP; THE SAME WAS NOT AC CEPTED BY THE COORDINATE BENCH, IN THE EARLIER. 14. HOWEVER, FOR THE YEAR UNDER CONSIDERATION (AY 204-1 5), WE NOTICE THAT TPO HAS APPLIED BENEFIT TEST WHICH IS NOT AS P ER THE RULES PRESCRIBED UNDER RULE 10B & 10AB OF INCOME TAX RULE S. IN OUR VIEW, THE PAYMENT OF TECHNICAL KNOWHOW WAS NEVER BENCH MA RKED IN THE EARLIER AYS. CONSIDERING THE TOTALITY OF THE FACTS AND CIRCUMSTANCES AND THE FUNDAMENTAL QUESTION THAT REVENUE SHOULD NO T BE DEPRIVED OF LEGITIMATE TAX DUE TO THE EXCHEQUER. THEREFORE, IN ORDER TO BENCH MARK THIS TRANSACTION AND TO DETERMINE PROPER ALP, OF TH E INTERNATIONAL TRANSACTION, WE ARE INCLINED TO REMIT THIS ISSUE B ACK TO TPO/AO TO DETERMINE THE ALP AFRESH AS PER RULE 10B & 10AB OF THE I.T. RULES. NEEDLESS TO ORDER THAT BEFORE MAKING FRESH BENCH MA RKING IN ACCORDANCE WITH RULE 10AB & 10B READ WITH SECTION 9 2C, THE TPO/ AO SHALL PROVIDE OPPORTUNITY OF HEARING TO THE ASSE SSEE. ACCORDINGLY, THE GROUND NO 1 OF THE APPEAL IS ALLOWED FOR STATIS TICAL PURPOSE. 15. IN THE RESULT THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 04-03-2020. SD/- SD/- (S. RIFAUR RAHMAN) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIALMEMBER ITA 7320/MUM/2018 UPS EXPRESS P LTD 11 MUMBAI, DT : 04 MARCH ,2020 PK/- COPY TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR /TRUE COPY/ BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI