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Chryscapital Investment Advisors ... vs Deputy Commissioner Of Income Tax on 27 April, 2015 cites

Commissioner Of Income Tax vs Mentor Graphics (Noida) Pvt.Ltd. on 4 April, 2013

28. Quite evidently, the Court accepted the assessee‟s contentions with respect to dissimilarity of comparables; given the facts, equally, there was ITA 417/2014 Page 35 sufficient material to favour that view, in the facts of the case. The Court, unlike in Mentor Graphics (supra) did not undertake an analysis of the provisions involved- it was not also necessary, given the admitted state of facts.
Delhi High Court Cites 11 - Cited by 14 - B D Ahmed - Full Document

U.P. State Sugar Corporation Ltd vs Dy. Director Of Consolidation & Ors. on 7 February, 2000

Sony India (P) Upheld the Exclusion may not be justified Ltd. v. Deputy revenue's decision on the mere ground of loss and CIT, [2008] 114 to exclude Godrej as competition. However, on the ITD 448 (Delhi) a comparable. facts of the case, a number of factors have the cumulative effect of justifying Godrej's Reversed the exclusion. These are: Godrej
Supreme Court of India Cites 35 - Cited by 35 - S S Ahmad - Full Document

Marubeni India Pvt. Ltd. vs Dit on 25 April, 2013

35. As regards the relevance of multiple year data for transfer pricing determination, this Court is of the opinion that the general rule as prescribed in Rule 10B(4) mandates the tax authorities to take into account only the relevant assessment year‟s data. The proviso to Rule 10B(4) permits data relating to two years prior to the relevant assessment year to be taken into account in the event that they have an influence on the determination of price. However, in such instances, the onus lies upon the assessee to establish the relevance of such data. The language of Rule 10B(4) does not leave any scope for ambiguity on this issue. This Court notices that this very ground- i.e applicability of previous years‟ data for reaching out comparables, was sought to be urged in Marubeni India (P) Ltd v DIT 354 ITR 638 but deliberately left moot, because the assessee had given it up before the Tribunal. The TPO in his order dated 03.10.2011 has comprehensively examined the authorities on this issue and rightly held that ordinarily, the revenue has to consider only the relevant assessment year‟s data under Rule 10B(4) and that data from earlier period may also be considered if "it reveals certain facts which have an influence on the determination of transfer prices in relation to the transaction being considered". The assessee has placed significant reliance on the OECD ITA 417/2014 Page 42 guidelines to contend the admissibility of previous year‟s data for transfer pricing determination. However, for reasons given in the paragraphs below, this Court is of the opinion that the OECD guidelines have no bearing on this issue.
Delhi High Court Cites 8 - Cited by 11 - R V Easwar - Full Document

Jolly George Verghese & Anr vs The Bank Of Cochin on 4 February, 1980

37. The contention that OECD guidelines have to be taken into consideration requires a closer scrutiny. The Organisation for Economic Co- operation and Development (OECD) is an international economic organisation of 34 countries founded in 1961 to stimulate economic progress and world trade. India is not a member of this grouping; it has an observer status. She has, however, of late been actively co-operating with the organization. The Guidelines of OECD therefore, have only persuasive status; they do not have any legal sanction- unlike, for instance Double Taxation Avoidance Agreements which courts are duty bound to interpret and implement, in terms of municipal law, given the compulsion of provisions of the Income Tax Act. Secondly - and more importantly- the provisions of the Constitution compel a national legislation, to embody the terms of a treaty, for it to be enforceable in courts in India. This is because of Article 253 of the Constitution and the dualist tradition (of International law) followed by India, whereby treaties by themselves are legally unenforceable in courts, but are to be assimilated through municipal (or ITA 417/2014 Page 44 national) legislation. Our Supreme Court has, in the area of human rights - particularly in personal liberty, been emphasizing that to the extent the provision of any treaty is in consonance with provision of the Constitution (such as Article 21) it would be read along with such provision or right (Jolly George Varghese and Anr. v. The Bank of Cochin, AIR 1980 SC 470, Apparel Export Promotion Council v. A.K. Chopra, AIR 1999 SC 625; Kubic Dariusz v Union of India AIR 1990 SC 605). Thus, the Courts are primarily bound by the law on the subject in India; if the law is clear and unambiguous, there is no question of resorting to extrinsic sources. The only rider is that if the terms of such conventions or treaties are similar to the law applicable in India, courts may consider precedents in that regard; however those are only of persuasive value.
Supreme Court of India Cites 11 - Cited by 333 - V R Iyer - Full Document

Apparel Export Promotion Council vs A.K. Chopra on 20 January, 1999

37. The contention that OECD guidelines have to be taken into consideration requires a closer scrutiny. The Organisation for Economic Co- operation and Development (OECD) is an international economic organisation of 34 countries founded in 1961 to stimulate economic progress and world trade. India is not a member of this grouping; it has an observer status. She has, however, of late been actively co-operating with the organization. The Guidelines of OECD therefore, have only persuasive status; they do not have any legal sanction- unlike, for instance Double Taxation Avoidance Agreements which courts are duty bound to interpret and implement, in terms of municipal law, given the compulsion of provisions of the Income Tax Act. Secondly - and more importantly- the provisions of the Constitution compel a national legislation, to embody the terms of a treaty, for it to be enforceable in courts in India. This is because of Article 253 of the Constitution and the dualist tradition (of International law) followed by India, whereby treaties by themselves are legally unenforceable in courts, but are to be assimilated through municipal (or ITA 417/2014 Page 44 national) legislation. Our Supreme Court has, in the area of human rights - particularly in personal liberty, been emphasizing that to the extent the provision of any treaty is in consonance with provision of the Constitution (such as Article 21) it would be read along with such provision or right (Jolly George Varghese and Anr. v. The Bank of Cochin, AIR 1980 SC 470, Apparel Export Promotion Council v. A.K. Chopra, AIR 1999 SC 625; Kubic Dariusz v Union of India AIR 1990 SC 605). Thus, the Courts are primarily bound by the law on the subject in India; if the law is clear and unambiguous, there is no question of resorting to extrinsic sources. The only rider is that if the terms of such conventions or treaties are similar to the law applicable in India, courts may consider precedents in that regard; however those are only of persuasive value.
Supreme Court of India Cites 11 - Cited by 566 - V N Khare - Full Document

Kubic Dariusz vs Union Of India & Ors on 18 January, 1990

37. The contention that OECD guidelines have to be taken into consideration requires a closer scrutiny. The Organisation for Economic Co- operation and Development (OECD) is an international economic organisation of 34 countries founded in 1961 to stimulate economic progress and world trade. India is not a member of this grouping; it has an observer status. She has, however, of late been actively co-operating with the organization. The Guidelines of OECD therefore, have only persuasive status; they do not have any legal sanction- unlike, for instance Double Taxation Avoidance Agreements which courts are duty bound to interpret and implement, in terms of municipal law, given the compulsion of provisions of the Income Tax Act. Secondly - and more importantly- the provisions of the Constitution compel a national legislation, to embody the terms of a treaty, for it to be enforceable in courts in India. This is because of Article 253 of the Constitution and the dualist tradition (of International law) followed by India, whereby treaties by themselves are legally unenforceable in courts, but are to be assimilated through municipal (or ITA 417/2014 Page 44 national) legislation. Our Supreme Court has, in the area of human rights - particularly in personal liberty, been emphasizing that to the extent the provision of any treaty is in consonance with provision of the Constitution (such as Article 21) it would be read along with such provision or right (Jolly George Varghese and Anr. v. The Bank of Cochin, AIR 1980 SC 470, Apparel Export Promotion Council v. A.K. Chopra, AIR 1999 SC 625; Kubic Dariusz v Union of India AIR 1990 SC 605). Thus, the Courts are primarily bound by the law on the subject in India; if the law is clear and unambiguous, there is no question of resorting to extrinsic sources. The only rider is that if the terms of such conventions or treaties are similar to the law applicable in India, courts may consider precedents in that regard; however those are only of persuasive value.
Supreme Court of India Cites 28 - Cited by 80 - K N Saikia - Full Document

Sony Ericsson Mobile Communications ... vs Commissioner Of Income Tax ??? Iii on 16 March, 2015

―We may also make it clear that the reference to the OECD guidelines by the Tribunal in the impugned order are in the context of the reliance placed by the Transfer Pricing Officer on the very same guidelines, in particular, to paragraph 3.27 thereof. In the present case, there are specific provisions of sub- rules (2) and (3) of Rule 10B of the said Rules as also of the first proviso to section 92C(2) of the said Act which apply. Therefore, the question of applying OECD guidelines does not arise at all.‖ This Court also notes that a recent decision in Sony Ericsson Mobile Communications India Pvt. Ltd. v. CIT (dated 16.03.2015) relied extensively on the OECD Guidelines. However, the said ruling itself recognized that the provisions of the Act and the Rules "are supreme". Therefore, this Court holds that where they (i.e., the Act and the Rules) adequately cover a field, reliance on the OECD Guidelines is not warranted.
Delhi High Court Cites 49 - Cited by 38 - S Khanna - Full Document
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