While applying the CUP method, it is always obligatory to bring on record some comparable uncontrolled instance as per the mandate of rule 10B(1)(a)(i). Not even a single comparable instance has been brought on record by the TPO in his order to facilitate comparison between the price paid by the assessee vis-a-vis that paid by other comparables in similar uncontrolled circumstances. In case, the TPO finds that the CUP method cannot be applied either due to non-availability of the relevant data or for some other genuine reasons, he is free to apply any other appropriate method for a fresh determination of the ALP of the international transaction of ‘Management Group cost. Matter remanded. (AY. 2008 -09, 2009-10, 2012-13)
Atotech India Pvt. Ltd. v. ACIT (2018) 167 DTR 17 / 194 TTJ 1 (Delhi)(Trib.)
S. 92C : Transfer pricing–Arm’s Length price-CUP method-TNMM- International transactions combined by assessee for showing them at ALP cannot be aggregated where assessee fails to show any inextricable link between these transactions as one not surviving without the other and there is no package deal and the international transaction in question is separately valued and there is nothing to show an understanding that the pricing was dependent upon the assessee accepting all of them together- Matter remanded.