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5. erred in not appreciating the fact that the royalty payments is already benchmarked under TNMM analysis under bundled transaction approach.

6. erred in holding that the appellant should have adopted profit split method ('PSM') in absence of CUP data without appreciating that PSM is not applicable in appellant's case;

Corporate Tax Grounds Disallowance of employees contribution towards Provident Funds and ESIC of Rs.6,11,614

7. erred by disallowing employees contribution towards Provident Fund and ESIC of Rs.6,11,614 u/s 36(1)(va) r.w.s 2(24)(x)of the Act;

using comparable transactions. The DRP further observed that the TPO had ) asked the assessee to provide data of comparable transactions using Royalty stat database. In response to the same, the assessee vide its letter dated 02.12.2015 had submitted that no comparable data was available in the Royalty stat database. The DRP, therefore, observed that the assessee had not submitted any other comparable transaction or any fresh comparability analysis to benchmark its international transaction relating to royalty. Further that the TPO had referred to Profit Split Method, being an appropriate method in this case. However, the relevant material to apply this method was neither available on record nor has the assessee made the same available before the DRP. On the contrary the assessee submitted that Profit Split Method also could not be applied in its case. The TNMM has already been rejected by the ITAT. CUP & PSM were the only alternatives available. Regarding CUP method, the assessee had submitted that comparable data of similar transaction was not available. The assessee had also rejected Profit Split Method. The assessee therefore had rejected all the methods to benchmark the royalty transaction. The DRP observed that the only justification of the assessee in its reply dated 30.12.2015 that as the trade mark belonged to the AE, in the absence of royalty, the AE may terminate the license, did not serve the purpose of determination of ALP. The Ld. DRP, therefore, while relying upon on the Special Bench decision of the ITAT in case of "Aztec Software" (2007) 109 TTJ 0892, held that the onus to maintain the relevant data of comparable transactions for determining of ALP and to apply the most appropriate method and determine the ALP was on the assessee. Further, it is the assessee who has to maintain documentation of comparable transactions justifying the fact that the transaction is at arm's length. It is only when the TPO rejects the basic documentation produced by the assessee that the onus shifts to the TPO. The DRP, therefore, held that the assessee in this case had failed to discharge the initial onus of applying one of the prescribed methods which is the most appropriate method in respect of the royalty transaction. That in the absence of IT(TP)A No.1018/M/2016 6 M/s. A.W. Faber Castell (India) Pvt. Ltd.