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Income Tax Appellate Tribunal, “C” BENCH, PUNE
Before: SHRI R.S.SYAL, VP & SHRI PARTHA SARATHI CHAUDHURY, JM
आदेश / ORDER PER PARTHA SARATHI CHAUDHURY, JM:
The cross appeals in & ITA No.1357/PUN/2017 preferred by the assessee and Revenue emanates from the order of the Ld. CIT(Appeals)-4, Pune dated 01.12.2016 for the assessment year 2012-13 as per the grounds of appeal on record.
The appeal in Revenue emanates from the order of the Ld. CIT(Appeals)-4, Pune dated 24.05.2017 for the assessment year 2013-14 as per the grounds of appeal on record.
At the time of hearing, both the parties submitted and agreed that the facts and circumstances arising in all these appeals are similar and grounds of appeal are identical in nature. After recording the submissions of both the parties, all these cases were heard together and disposed of vide this consolidated order.
First, we would take up Revenue‟s appeal in for the assessment year 2012-13 for adjudication.
( Revenue’s appeal) A.Y.2012-13
3. In grounds of appeal raised by the Revenue are as follows:
“1.Whether on the facts and circumstances of the case and in law, the CIT(A) erred in deleting the additions of Rs.2,20,82,539/- to the total income of the appellant on account of adjustment to the international transaction pertaining to export of finished goods to AE? 2. For this and such other reasons as may be urged at the time of hearing, the order of the CIT(A) may be vacated and that of the Assessing Officer be restored.
3. The appellant craves leave to add, alter or delete any of the above grounds of appeal during the course of appellate proceedings before the Hon’ble Tribunal.”
4. The brief facts of the case are that the assessee had entered into international transaction with the Associated Enterprise (AEs) and Report in Form 3CEB as required u/s.92E of the Income Tax Act, 1961 (hereinafter referred to as „the Act‟) had been filed. The amount of transaction being below Rs.15 Crores, reference to Transfer Pricing Officer (TPO) was not made in this case. Even in assessment year 2010-11, the international transactions reported were less than the prescribed limit and the Arm‟s Length Price (ALP) was computed by the then Assessing Officer, the appeal of the assessee is pending. In view of the same, the Ld. AO requested as to why similar adjustment to the ALP not be made in the captioned assessment year as well to which the assessee submitted vide letter dated 27.03.2015. The contention of the assessee were considered but was not accepted. The reasons given for the variation were not acceptable which are as follows :
(A) The provision for Slow Moving Inventory Cost in any case is not a valid claim of the assessee and to that extent the assessee has tried to reduce its profitability. (B) Foreign exchange loss/gain is not unique to any business as such it is only incidental to a business enterprise entering into international transaction. (C) Since the assessee‟s earlier two points are not tenable, the transaction would not come in the purview of benefit +/- 5 percent.
In view of the above, adjustment of Rs.2,20,82,539/- to the ALP of the assessee was made, the income of the assessee was enhanced by this amount accordingly.
During the First Appellate proceedings, the Ld. Counsel for the assessee on this issue had submitted as follows:
“5.2 Ld. AR’s Submission : During the year the appellant company had entered into international transactions with its Associated Enterprise. It had transactions with non AE also. The transactions under the domestic sale and export sale were benchmarked by Transactional Net Margin Method. The appellant manufactures export items in India by employing outside as well as in house using plant and machinery. The trading items in which the company deals are Fittings, Clamps, Filters and other Hydraulic Accessories etc. whereas manufactured items include Flanges, Stacking, Bolts, GMV Rail Nuts and SMG Rail Nuts. As such the appellant company did margin analysis of the activities viz. trading and export separately.
5.2.1 The turnover (net) of the company for the year was Rs.21,22,40,961/-. This included sale of traded as well as manufactured items. Turnover of traded items was Rs.16,98,14,647/- whereas that of manufactured items was Rs.4,24,26,314/-. The appellant selected certain companies as comparable by conducting a search in the public data base prowess. However, there was a difference in the margin as compared to that of the appellant. The margin of the appellant was less for the reasons such that – The comparable selected had not incurred any expenditure towards slow moving inventory whereas the appellant had debited an amount of Rs.21.79 lacs. In the case of the appellant there was a foreign exchange loss of Rs.5,01,620/- in trading activity and Rs.10,35,660/- in manufacturing activity.
5.2.2. The appellant made the submission to the Ld. AO, a copy of which is enclosed for your ready reference along with the following documents- 1. Margin analysis of Comparable Companies on Revenue, 2. Split Financial as at 31st March, 2021 and 3. The margin analysis, the benchmarking for trading and manufacturing 5.2.3 The Ld. AO however did not accept the appellant’s contention w.r.t the variation in the average margin of the comparable and the margin of the appellant. He therefore, made an adjustment of Rs.2,20,82,539/- to the ALP as was made for AY 2010-11. 5.2.4 Your Honor may please note that among other things, results of an enterprise are largely affected by the Accounting policies followed by the enterprise. Therefore, results of any two companies operating in the same field may not be comparable if both do not follow same accounting policies. The policy of making provision on account of 'Slow moving inventory' has substantially affected the profitability of the appellate company. The comparable selected may not be following the similar policy and therefore, it is not correct to compare the profit margin of the appellant company with other comparable selected without adjusting the profits of the appellant company by the amount of provision made on account of 'Slow moving inventory. 5.2.5 Your Honor may also please note that the said provision IS not ll1 any way related to or based upon the sales of the appellant company that is to say this provision is not made at a certain percentage of the sales. And therefore, the same should not be considered while making margin analysis and for comparing it with another company. In this connection, we wish to bring to your kind attention the following facts – 1. For AY. 2008-09, AY. 2009-10 & AY. 2010-11 Hon. CIT(A)-TP has ruled in favor of the appellant deleting addition made by the Ld. AO by way of adjustment to ALP and 2. There is no change in the facts and the circumstances as compared to earlier assessment years. Even then the Ld. AO did not follow the appellate orders of the earlier years.
5.2.6 We therefore request Your Honor to kindly direct the Ld. AO to follow the appellate orders for AY.2008-09, A.Y.2009-10 & A Y.2010-11 and delete the addition of Rs.2,20,82,539/-.”
6. Thereafter, the Ld. CIT(Appeals) has provided relief to the assessee on the very fact that for assessment years 2008-09, 2009-10 and 2010-11, the Ld. CIT(Appeals) has given decision in favour of the assessee and following the same findings and holding that the fact and circumstances for this relevant year i.e. AY 2012-13 is also similar, the Ld. CIT(Appeals) provided relief to the assessee.
At the time of hearing, the Ld. Counsel for the assessee submitted that the assessee is carrying on two separate divisions i.e. two separate activities; one is the manufacturing and second is trading. The Assessing Officer had considered the operations of assessee in entirety and held it to be one activity. However, there is no dispute to the fact that the assessee was carrying on both manufacturing and trading activity separately. This fact has been accepted by the Tribunal in assessee‟s own case in for the assessment year 2010-11 dated 18.12.2018. The Ld. Counsel for the assessee further submitted that the relief granted to the assessee by the Ld. CIT(Appeals) is on the fact that entirety of the transaction has been consolidated to only one operation and relief was provided therein. However, there is no bifurcation of trading and manufacturing activities separately while giving relief to the assessee by the Ld. CIT(Appeals). Therefore, in the decision of the Tribunal for assessment year 2010-11 in assessee‟s own case (supra.), the matter was restored to the file of the Assessing Officer to benchmark two activities separately. Accordingly, the Ld. Counsel for the assessee prayed that the same directions may be given for this relevant year also.
We have heard rival contentions and perused the material available on record. We have also considered the decision of the Pune Bench of the Tribunal in assessee‟s own case (supra.). The Pune Bench of the Tribunal for the assessment year 2010-11 in assessee‟s own case (supra.) on this issue has observed and held as follows:
“5.We have heard the rival contentions and perused the record. Briefly, in the facts of the case, the assessee was engaged in manufacturing and trading of hydraulic accessories and spares. The assessee was wholly owned subsidiary of Walter Stauffenberg, Germany. The Assessing Officer noted that business profile of assessee company included import of accessories and components for re-selling to Indian market and procuring of accessories and components from Indian market for export to parent company. As per details furnished, the assessee had entered into the following international transactions with its associated enterprises:-
Method Sr. No. Nature of Transaction Amount applied 1 Sale of finished goods 30631459 TNMM 2 Purchase of goods 28859610 TNMM 3 Issue of Shares 27908000 NA 4 Reimbursement of Travel 1548405 NA expenses Total 88947474
The assessee had divided its operations in two segments i.e. domestic sales and export sales. For the purpose of benchmarking the transactions under the domestic sales and export sales, TNMM method was selected as most appropriate method. The operating profit to operating sales ratio and operating profit to operating cost ratio were taken as PLI in the TNMM analysis, respectively. In case of domestic sales, PLI of assessee was arrived at 4.45%, whereas average PLI of comparables arrived at 8.80%; in the case of export sales, PLI of assessee was 2.86%, whereas the average PLI of comparables was 8.30%. The assessee had selected two companies as comparables on the basis of search conducted. The Assessing Officer was of the view that there was no logic for bifurcating the trading activity into domestic sales and export sales. He proposed to aggregate and benchmark all the transactions using the set of comparables selected following TNMM method. Since the assessee had calculated margins of comparables on the basis of average of preceding two years, the assessee was directed to apply the data of contemporaneous period, as per which the average worked out to 12.82%. The assessee was thus, show caused in this regard. The Assessing Officer did not accept the plea of assessee for benchmarking two transactions separately and noted that as against the margins of assessee at 2.94%, margins of comparables were 12.82% and hence, made an upward adjustment of ₹ 1,46,32,576/-.
7. The CIT(A) deleted the aforesaid adjustment following the same approach as he had applied in assessment years 2008-09 and 2009-10.
8. The Revenue is in appeal against the order of CIT(A). It may be pointed out herein itself that the issue was decided in favour of assessee by the CIT(A) in turn, relying on his own order for assessment years 2008-09 and 2009-10.
We find that the Revenue had filed appeals against the order of CIT(A) relating to assessment years 2008-09 and 2009-10. The appeals of Revenue were decided by the Tribunal vide order dated 26.04.2018 in & 670/PUN/2014, relating to assessment years 2008-09 & 2009-10. The Tribunal after taking note of the additional evidence filed by assessee before the CIT(A), against which remand report was obtained from the TPO, wherein the TPO concluded that there was no logic in bifurcating trading activity into domestic sales and export sales; whereas the case of assessee was that apart from trading of components, it was also engaged in the export of finished goods. The assessee furnished manufacturing process chart before the CIT(A) and various other evidences which were confronted to the TPO, who after examining the additional evidence, had accepted that the assessee company was engaged in manufacturing and trading activity. The Tribunal after taking into consideration all the evidences including additional evidence observed that manufacturing activity was being carried out by the assessee.
The learned Authorized Representative for the assessee pointed out that the adjustment has been made in the hands of assessee on the ground that the assessee is not engaged in any manufacturing activity but the Tribunal upheld the order of CIT(A) and held that there was manufacturing activity carried on by the assessee. The learned Authorized Representative for the assessee pointed out that the TPO had aggregated two transactions on the ground that there was one activity and no substantial manufacturing was being carried out, whereas the CIT(A) held that two activities were undertaken by the assessee i.e. one is manufacturing and second one is trading. The learned Authorized Representative for the assessee when confronted fairly agreed that the issue be sent back to the file of Assessing Officer / TPO to benchmark the manufacturing activity and the trading activity separately by applying TNMM method as the most appropriate method and even the comparables have to be looked into and the arm's length price of transfer pricing of international transactions had to be determined.
11. The first aspect of the issue is that admittedly, the assessee is carrying on two separate divisions i.e. two separate activities; one is the manufacturing and second is trading. The Assessing Officer had considered the operations of assessee in entirety and held it to be one activity. However, in the preceding year, the assessee was held to be in carrying on two activities. There is no dispute to the same. Accordingly, we hold that the assessee is engaged in two separate activities; one is manufacturing and the second is trading.
Now, coming to the second step, wherein it is the duty of Assessing Officer / TPO to benchmark two activities separately. Accordingly, we direct the Assessing Officer / TPO to apply TNMM method and go through the comparables selected by assessee and determine the arm's length price of international transactions entered into by assessee with its associated enterprises under the umbrella of manufacturing activity and also as part of trading activities. The two activities have to be benchmarked separately and independently, for which reasonable opportunity of hearing shall be provided to the assessee. Accordingly, we remit the issue back to the file of Assessing Officer / TPO in this regard. The grounds of appeal raised by Revenue are thus, allowed for statistical purposes.”
9. That following the rule of consistency and after considering the fact that both the parties have agreed that the facts and circumstances and issues for this year also is absolutely identical and therefore, for assessment year 2012-13 also on this issue, we set aside the order of the Ld. CIT(Appeals) and restore the matter to the file of the Assessing Officer with the directions that two activities of the assessee i.e. trading and manufacturing has to be benchmarked separately and independently after providing reasonable opportunity of hearing to the assessee. Thus, Ground No.1 raised in Revenue’s appeal for the assessment year 2012-13 is allowed for statistical purposes.
10. Ground No. 2 & 3 raised in Revenue‟s appeal are general in nature and hence, no adjudication is required.
In the result, appeal of the Revenue in for the assessment year 2012-13 is allowed for statistical purposes. ( Assessee’s Appeal) A.Y.2012-13
12. In the assessee has raised following grounds of appeal:
“On the facts and in law – 1. The learned CIT(A) erred in confirming the disallowance of the provision of Rs.21,79,677/- made on account of slow moving inventory on the basis of the method consistently followed by the appellant. For this and such other grounds as may be urged at the time of hearing, the order of the CIT(Appeals) and Assessing Officer may be vacated and the appellant’s claim may be allowed or any suitable directions issued.
2. The appellant craves leave to add, alter or delete any of the above grounds of appeal.”
13. That with regard to the aforesaid grounds raised in this appeal, we find from the case records and relevant documents annexed in the paper book filed before us specifically at Page 268 wherein a chart has been provided and it is evident from such chart that the assessee had been creating provision year after year in respect of its stock getting obsolete and in effect claiming deduction. The Assessing Officer dealt with this issue at Page 2, Para 4 onwards of his order.
The assessee has claimed an amount of Rs.21,79,677/- as provisions for Slow Moving Inventories and has written off such amount. The assessee has submitted during the assessment proceedings that provisions for periodical write off of the inventories were a standard policy. These provisions are written back on any realization in future. The Assessing Officer has observed that in the FY relevant to the year under appeal, no amount was written back. It was also established further that the basis on which this was done was one adopted by the assessee itself and as such just estimation, so to say. The Ld. Counsel for the assessee on the other hand has submitted that the standard policy for the inventory provision followed by the assessee. He has further submitted that the provision on this account adversely affects the profitability of the company resulting in reduced profitability and at the same time when the provision is reversed as per the policy described above, it results in increasing profitability. The Ld. CIT(Appeals) on this issue has held as follows :
“6.3.2 I have carefully perused the assessment order and the material placed on record. It is observed that the appellant has been following this consistent policy since the inception of the business. During the year under appeal, the appellant has not written back any provisions instead made provisions for write off of inventory on the policy followed. The AO has observed that the appellant had not written back any amount in the earlier also. There is another aspect involved in this issue. That is provision of Rs.21,79,677/- was considered while computing margin for TP assessment and made addition to that extent. If the said provisions made is not allowed as business expenditure to that extent TP margin will be revised. As I have decided TP addition in favour of appellant, the provisions made had already submitted in the profits. In this circumstances, I find no merit in allowing again. Therefore, no interference in the AO’s order is warranted. Thus, this ground of appeal is dismissed.”
The Ld. Counsel for the assessee at the time of hearing submitted that since the main ground in Revenue‟s appeal has been restored to the file of the Assessing Officer for fresh determination of ALP after benchmarking two separate transactions i.e. manufacturing and trading and therefore, this issue should also be restored to the file of the Assessing Officer.
The Ld. DR did not raise any objection with regard to the submissions put forth by the Ld. Counsel for the assessee.
That on considering the totality of facts and circumstances, we are of the considered view that it is correct, the assessee has created provision in respect of the stock getting obsolete and thereby in effect claiming deduction year after year and therefore, we are of the considered opinion that let the Assessing Officer verify whether the assessee at the time of effecting the sale has written back such provision which it has created and if that be so, deduction can be allowed to the assessee and the ALP determined while benchmarking the activities of the assessee. We order accordingly. In view thereof, Ground No.1 raised in assessee’s appeal is allowed for statistical purposes.
Ground No.2 is general in nature and hence, no adjudication is required.
Further, the assessee has also filed an application praying for admission of additional ground based on the decision of the Hon‟ble Supreme Court of India in the case of NTPC Vs. CIT reported in 229 ITR 383 (SC) where the ITAT is empowered to admit such additional ground. The Ld. AR of the assessee submitted that the additional ground does not require any fresh verification of facts since the issue involved therein is purely legal in nature and the same reads as under:
“Additional ground: “1. The assessee submits that in case any transfer pricing addition is warranted on account of international transaction entered into with Associated Enterprises (AEs), the same should be restricted to the international transactions entered into with the AE and not to the entire turnover of the assessee company. The assessee submits that the additional ground raised is legal in nature and as all the facts are on record, the assessee requests for admission of the above ground.”
The Ld. DR did not raise any objection with regard to admission of additional ground for adjudication.
Having heard the submissions of both the parties herein, we find the additional grounds raised by assessee are legal in nature, hence, the same is admitted in line with the decision of Hon'ble Supreme court of India in the case of NTPC Ltd. Vs. CIT (supra.)
We find the Co-ordinate Bench of the Tribunal, Pune in the case of Synechron Technologies Private Limited Vs. ACIT, in for the assessment year 2014-15 dated 22.01.2021 had an occasion to deal with the similar issue and relevant observation of the Tribunal reads as follows :
“32. With regard to Ground No.9, the assessee contented that the TP adjustment has to be done restricting to the proportion of transaction with Associated Enterprises only.
We find that the Hon’ble Jurisdictional High Court in the case of CIT vs. Firestone International (P.) Ltd., 378 ITR 558 has held that TP adjustment needs to be restricted to the transaction with associated enterprises only. The ALP can be considered on value of international transaction alone and not on the entire turnover of the assessee. This judgment of Hon’ble Bombay High Court (supra) has attained finality by the Hon’ble Supreme Court in the same case vide SLP(C)CC No.22512/2015 dated 05.01.2016. The Hon’ble Delhi High Court in the case of CIT Vs. Keihin Panalfa Ltd. of 2015 has held that TP adjustment have to be restricted only to the transaction with Associated Enterprises. The Hon’ble Bombay High Court in the case of CIT Vs. Hindustan Unilever Ltd, ITA No.1873 of 2013 has observed that Transfer Pricing adjustment has to be done only in respect of international transaction with Associated Enterprises. The Pune Bench of the Tribunal in the case of DCIT Vs. Magna Steyr India P. Ltd. had occasion to refer the decision of the Hon’ble Bombay High Court in the case of CIT Vs. Thysseen Krupp Industries India Pvt. Ltd., 381 ITR 413 wherein it has been held the transfer pricing adjustment, if any, has to be made vis-à-vis associated enterprises transaction and not on entity level. Accordingly, Pune Bench of the Tribunal directed AO/TPO to re-compute the ALP of international
transactions of the assessee with its associated enterprises on the basis of the transactions with associated enterprises only. 34. Respectfully following the above referred judicial pronouncements, we direct the AO/TPO to determine the TP adjustment, if any, to be restricted to the international transactions of the assessee with its Associated Enterprises only. Thus, Ground No.9 raised in appeal by the assessee is allowed.”
Respectfully following the above referred decision of the Co-ordinate Bench of the Tribunal, Pune, we direct the AO/TPO to determine the TP adjustment, if any, to be restricted to the international transactions of the assessee with its Associated Enterprises only. Thus, additional ground raised in appeal by the assessee is allowed.
In the result, appeal of the assessee in for the assessment year 2012-13 is partly allowed for statistical purposes.
( Revenue’s appeal) A.Y.2013-14
In Revenue reads as follows:
“1.Whether on the facts and circumstances of the case and in law, the CIT(A) erred in deleting the additions of Rs.1,76,58,572/- made by the Assessing officer on account of an adjustment to the international transaction pertaining to export of finished goods to AE, when the earlier appeals for A.Y 2008-09 and A.Y 2012-13 have yet to come to its finality.
2. On the facts and in the circumstances of the case the Ld CIT(A) has erred in deleting the addition of Rs.3,79,205/- made by the Assessing officer on account of slow moving inventory, when the relevant provisions was not an ascertained liability.
3. For this and such other reasons as may be urged at the time of hearing, the order of the CIT(A) may be vacated and that of the Assessing Officer be restored.
4. The appellant craves leave to add, amend, alter or delete any of the above grounds of appeal during the course of appellate proceedings before the Hon’ble Tribunal.”
At the time of hearing both the parties agreed and submitted that the grounds of appeal for assessment year 2013-14 are absolutely identical and similar to the grounds of appeal raised in cross appeals for the assessment year 2012-13 by both the parties herein.
26. Ground No.1 raised in this appeal is identical to Ground No.1 raised in Revenue‟s appeal in for the assessment year 2012- 13. Since facts and issues are identical and similar to the Revenue‟s Appeal in ITA No.1357/PUN/2017, our decision rendered in ITA No.1357/PUN/2017 for the assessment year 2012-13 while adjudicating Ground No.1 of the Revenue‟s appeal shall mutatis-mutandis apply for this year also. Thus, Ground No. 1 raised in Revenue’s appeal for the assessment year 2013- 14 is allowed for statistical purposes.
27. Ground No.2 raised in this appeal is identical to Ground No.1 raised in Assessee‟s appeal in for the assessment year 2012- 13. Since facts and issues are identical and similar to the assessee‟s Appeal in ITA No.1171/PUN/2017, our decision rendered in ITA No.1171/PUN/2017 for the assessment year 2012-13 while adjudicating Ground No.1 of the assesseee‟s appeal shall mutatis-mutandis apply for this year also. Thus, Ground No. 2 raised in Revenue’s appeal for the assessment year 2013- 14 is allowed for statistical purposes.
28. Ground No.3 & 4 raised in Revenue‟s appeal are general in nature and hence, no adjudication is required.
In the result, appeal of the Revenue in 2013-14 is allowed for statistical purposes.
In the combined result, appeal of the assessee in for the assessment year 2012-13 is partly allowed for statistical purposes and appeal of the Revenue in ITA No.1357/PUN/2017 for the assessment year 2012-13 is allowed for statistical purposes and appeal of the Revenue in 2013-14 is allowed for statistical purposes.
Order pronounced on 05th day of March, 2021.
Sd/- Sd/- R.S.SYAL PARTHA SARATHI CHAUDHURY VICE PRESIDENT JUDICIAL MEMBER ऩुणे / Pune; ददनाांक / Dated : 05th March, 2021. SB आदेश की प्रनिलऱपप अग्रेपषि / Copy of the Order forwarded to : अऩीऱाथी / The Appellant. 1. प्रत्यथी / The Respondent. 2.
The CIT(Appeals)-4, Pune.