NOKIA INDIA PVT. LTD.,,GURGAON vs. ADDL.CIT, SPECIAL RANGE-6, NEW DELHI

per the website extracts, Axis Integrated Systems Limited is engaged in

providing consultancy with regards Directorate General of Foreign Trade,

customs/Excise & Service Tax related services. Their area of expertise includes

foreign trade policy related matters and excise benefits related matters and

thus are incomparable to business support services rendered by the assessee.

It was further contended that the mode of revenue recognition was not known

and due to lack of complete financial report. The ld. counsel for the assessee

placed reliance in the case of Pr CCIT vs M/s Li & Fung (India) Pvt. Ltd. in ITA

No.176/2019 for Assessment Year 2013-14, to buttress the contention that no

comparison can be drawn between an entity that is captive service provider to

its group entities and an entity like Axis which is providing liaisoning services

to a large number of entities, further reliance was placed on the decision

referred in the case of Bergen Engines India Pvt. Ltd. vs ACIT in ITA

No.7802/Del/2017. To buttress the contention that the company was engaged

in providing services related to Directorate General of Foreign Trade,

customs/Excise & Service Tax related services, clearly these services are in the

nature of the concultancy or services of expert nature and cannot be compared

with routine support services of raising invoices, coordination with customers,

logistics etc.

Marketing Limited, it was stated that before the authorities below the main

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income was from services and commission for support services. The objection

was raised before the DRP but no specific direction was given. He submitted

that this comparable ought not to have been included as Killick Agencies is

engaged in marketing of marine equipment like specialized propulsion systems,

marine engines, ship lighting & navigation lighting systems, dredges and

dredge equipment, ship building presses, rescues boats and specialized davits,

reverse osmosis water systems and special acoustic communication equipment

for defense. He submitted that screenshot of the website of the company was

provided on page 333 of the paper book. He further submitted that such facts

is also evident from the annual report of the company which provides that

Killick acts as an agent for various foreign principals for sale of dredgers,

dredging equipment, steerable rudder, propellers, maritime and aviation

lighting, acoustic communication equipment etc and offers after sales services.

Apart from this, Killick Agencies and Marketing Limited is also engaged in

exports of micro switches, engineering items, acoustics items & headsets. It

was further submitted that different revenue stream as per annual report of the

company for Financial Year 2012-13, Killick earned more than 99% of its

revenue from commission income, which is accounted for when the

equipment/machinery is installed/at the customers designated place. The Ld.

counsel for the assessee placed reliance on the decision referred in the case of

Bergen Engines India Pvt. Ltd. vs ACIT in ITA No.7802/Del/2017, to buttress

the contention that the company was pioneer in bringing new products and

technologies to India starting with kerosene lamp and various other products

like toaster, pressure cookers, slotted angles etc and their successful 19 | P a g e

ITA No.-6502/Del/2017 [Assessment Year : 2013-14]

promotion, therefore, how this company was functionally similar to to the

support service segment of the assessee, the Ld. counsel for the assessee

placed reliance on decision of co-ordinate Bench of the Tribunal in the case of

Hyundai Rotem Company in ITA No.7569/Del/2019 and Veolia India Private

Limited in ITA No.6770/Del/2015. He submitted that in view of these

decisions and the fact that the comparable was functionally different dissimilar

to the assessee. This comparable ought not to have been included by the TPO.

submissions were made before the TPO and objections were raised before the

DRP. He submitted that this comparable ought to have been excluded on the

basis of its functional difference. He submitted that Just Dial Ltd. operates a

local search engine which assists general public in finding information

pertaining to the nearby area. Such information may range from location of

any restaurant/eateries etc. to general phone number enquiries. These

services are in the nature of Advertising Services. He submitted that no

segmental data is available. The company owns significant intangible assets in

the form of goodwill, application development and unique phone numbers.

Further, he placed reliance on the website extract of the company placed at

page 473 to 476 of the paper book. He further submitted that there is different

model of revenue recognition. He submitted that Just Dial Limited has a

higher turnover of Rs.362 crores which is more than five times the turnover of

Nokia India in relation to BSS segment. Reliance was placed on the decision of

the Hon’ble Delhi High Court in assessee’s own case pertaining to Assessment

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ITA No.-6502/Del/2017 [Assessment Year : 2013-14]

Year 2002-03 in ITA No.676/2015, wherein, the Hon’ble Delhi High Court

upheld the decision of the Tribunal in ITA No.242/Del/2010. In that decision,

the Tribunal had upheld that the upper turnover filter of Rs.50 crores which

was five times the turnover of NIPL for the relevant segment. The ld. counsel for

the assessee placed reliance on the decision referred in the case of Bergen

Engines India Pvt. Ltd. vs ACIT in ITA No.7802/Del/2017. In that case Just

Dial was rejected by the DRP. The reliance was also placed in the case of

Barclays Technology Centre India (P.) Ltd. vs ACIT [2015] 56 taxmann.com 386

(Pune Trib.). He submitted that if these three comparables are excluded then

there would not be any need to make transfer pricing adjustments.

and supported the orders of the authorities below. The ld. DR submitted that

TPO has rightly included the Axis Integrated Systems Limited, Killick Agencies

and Marketing Limited and Just Dial Limited as comparable for determining

the Arm's Length Price. He placed heavy reliance on the decision of the TPO,

and the reasoning of the TPO for inclusion of these comparables.

available on record. We find that the TPO had proposed adjustment in the

transfer pricing related to business support services. The TPO in his order

observed as under:-

“25. DETERMINATION OF ARM’S LENGTH PRICE

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ITA No.-6502/Del/2017 [Assessment Year : 2013-14]

25.1 In the light of discussion made above, the comparables that shall be finally selected for benchmarking the international transactions relating to provision of business support services are as follows:- No. Company name OP/OC(%) WCA OP/OC(%) 1 APITCO Ltd. 16.82% 11.43% 2 Axis Integrated Systems Ltd. 38.19% 35.40% 3 ICRA Management Consulting 2.42% 2.27% Service Ltd. 4 Just Dial Ltd. 31.75% 31.92% 5 Killick Agencies & Mktg. Ltd. 26.73% 26.50% 6 Marketing Consultants & 9.48% 8.59% Agencies Ltd. Average 20.90% 18.50%

25.2 Accordingly, the arm’s length price of the International transaction related to provision of business support services is computed as below:- Particulars Amount (INR) Operating Cost 219,000,000 Arm’s Length Margin (%) 18.59% Arm’s Length margin (Rs.) 40,712,100 Arm’s length Price 259,712,100 Price Charged by the assessee 230,000,000 Difference between Arm's Length Price and 29,712,100 Price charged by assessee

the ld. counsel for the assessee and the ld. DR. We find merit in the contention

of the Ld. counsel for the assessee that Axis Integrated Systems Limited was

not a valid comparable in view of the fact that the entity level profitability taken

by the TPO is incorrect. There was lack of segmental information. Financials

of the company do not provide detailed description of the business operations

of the company. Further, as per website extracts, Axis Integrated Systems

Limited is engaged in providing consultancy with regard to Directorate General

of Foreign Trade. Therefore, in view of the pronouncements as relied upon by 22 | P a g e

ITA No.-6502/Del/2017 [Assessment Year : 2013-14]

the assessee in the Pr. CCIT vs M/s LI &Fung (India) Pvt. Ltd. in ITA

No.176/2019 and the decision in the Bergen Engines India Pvt. Ltd. vs ACIT in

ITA No.7802/Del/2017, we hereby direct the Assessing Officer to exclude this

comparable.

merit in the submission of the ld. counsel for the assessee that this comparable

is functionally different as the main income was from services and commission

for support services as Killick Agencies is engaged in marketing of marine

equipment like specialized propulsion systems, marine engines, ship lighting &

navigation lighting systems. Further, Killick Agencies act as an agent for

various foreign principals for sale of dredgers, dredging equipment, steerable

rudder, propellers, maritime and aviation lighting, acoustic communication,

etc. Further, it has been demonstrated before us that this company for the

financial year 2012-13 earned more than its revenue from commission income,

which was accounted for when the equipment/machinery is installed at the

customers designated place. Therefore, in view of the decision of the Co-

ordinate Bench of this Tribunal, in the case of Bergen Engines India Pvt. Ltd.

vs ACIT in ITA No.7802/Del/2017, we are of the considered view that the

Assessing Officer ought to have excluded this comparable being functionally

different and dissimilar to the assessee. We, therefore, direct the Assessing

Officer/TPO to exclude this company from the list of comparables.

the ld. counsel for the assessee that this comparable is functionally different.

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ITA No.-6502/Del/2017 [Assessment Year : 2013-14]

Just Dial Limited operates a local search engine which assists general public in

finding information pertaining to nearby area. Further, no segmental data is

available and the company owns significant intangible assets in the form of

goodwill, application development and unique phone numbers. We, therefore,

hold that this is not a valid comparable and direct the Assessing Officer/TPO to

exclude this company from the list of comparables.

19.1. In view of the above discussion, the Assessing Officer is hereby

directed to exclude these three comparables and recompute the Arm's Length

Price. In case, if the value falls within the permissible limit in that event, the

Assessing Officer will delete the disallowance. Since, the ld. Counsel for the

assessee did not argue on the other comparables and restricted his arguments

to these three comparables only, therefore, this ground of the assessee is partly

allowed.

Rs.7,01,71,57,547/- on trade offers. Ld. Counsel for the assessee submitted

that the issue is covered by the decision of the Tribunal. The submissions of

the assessee are reproduced as under:-

* Disallowance under section 40(a)(ia) of the Act on account of trade offers provided to distributors [Disallowance amount=Rs.7,01,71,57,547/-] Revenue’s case Relying on assessments made in previous years AO treated the Trade offers as commission liable to withholding under Section 194H of the Act. Specific allegations made in this regard are as under:

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a) Discounts were given by way of debit notes which were not adjusted or mentioned in the invoice generated upon original sales made by the assessee (Para 91 of the final assessment order at Page No. 885 of the Appeal Set Volume II).

b) There is no provision in the agreement between HCL and the assessee for such discounts which was over and above the pre-agreed invoice price (Para 90 of the final assessment order at Page No. 885 of the Appeal Set Volume II).

c) HCL would be entitled to specific incentives on meeting the "Monthly Target Value" as per the approved Scheme and the pay-out is dependent on the achievement of certain percentage of targets given by NIPL to HCL (Para 90 of the final assessment order at Page No. 885 of the Appeal Set Volume II).

d) Relationship between the assessee and HCL is that of principal to principal or principal to agent is not of relevance (Para 92 of the final assessment order at Page No. 886 of the Appeal Set Volume II).

Alternatively, as payments for technical service liable for withholding under Section 194J of the Act. Specific allegations made in this regard are as under:

a) A combination of various services has been rendered by HCL for which no consideration was payable by the assessee (Para 94 of the final assessment order at Page No. 886 of the Appeal Set Volume II).

Services being provided by HCL are consultancy in nature and covered by the nature of technical services defined under Explanation 2 to Section 9(1)(vii) of the Act and thereby subject to withholding provisions under Section 194J of the Act (Para 95 of the final assessment order at Page No.886 of the Appeal Set Volume II).

Assessee’s submissions

The disallowance has been made on the same lines as AY 2010-11 and AY 2011-12. For AY 2010-11, the Hon'ble ITAT vide order dated 20.02.2020 in ITA No. 5791/Del/2015 in Para 8 of the order (Page No. 17 of Paper book) has adjudicated this issue in favour of the Assessee and held as under:

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ITA No.-6502/Del/2017 [Assessment Year : 2013-14]

"We have heard both the parties and perused all the relevant material available on record. It can be seen from Clause 2, 7, 8, 9, 14 and 19 of the "Agreement for the Supply of Cellular Mobile Phones" between HCL and the assessee that relationship between the assessee and HCL is that of principal to principal and not that of principal to agent. The discount which was offered to distributors is given for promotion of sales. This element cannot be treated as commission, there is absence of a principal-agent relationship and benefit extended to distributors cannot be treated as commission under Section 194H of the Act. As regards to applicability of Section 194J of the Act, the Assessing Officer has not given any reasoning or finding to the extent that there is payment for technical service liable for withholding under Section 194J. Marketing activities have been undertaken by HCL on its own. Merely making an addition under Section 194J without the actual basis for the same on part of the Assessing Officer is not just and proper. The Ld. DR's contention that discounts were given by way of debit notes and the same were not adjusted or mentioned in the invoice generated upon original sales made by the assessee, does not seem tenable after going through the invoice and the debit notes. In fact, there is clear mentioned about the discount for sales promotion. Thus, on both the account the addition made by the Assessing Officer does not sustain. Ground No.2 is allowed." The said ruling has also been followed while adjudicating the same issue for AY 2011-12 in the order of this Hon'ble ITAT dated 17.08.2020 in ITA No.1883/Del/2017 at Para 8.0 of the order (Page 43 of the Paperbook) and for AY 2008-09 & AY 2012-13 vide order dated 15.10.2020 in ITA 6500-6501/Del/2017 at Para 8-9 & 13 of the order.”

orders of the authorities below.

available on record. We find that this issue is squarely covered in favour of the

assessee by the decision of the Coordinate Bench of the Tribunal in assessee’s

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ITA No.-6502/Del/2017 [Assessment Year : 2013-14]

own case vide ITA No.1883/Del/2017 for Assessment Year 2011-12 and also in

ITA Nos. 6500-6501/Del/2017 for Assessment Years 2008-09 and 2012-13.

Relevant observation of the order in ITA No.1883/Del/2017 is reproduced

hereunder:-

“8.0 We have heard both the parties and have also perused the material on record. We have also perused the order of the Tribunal in the immediately preceding year in the assessee’s own case for Asst. Year: 2010-11 in ITA No.5791/Del/2015 vide order 20.02.2020 and we are in agreement with the contention of the Ld. AR that the issues are squarely covered in favour of the assessee on the issues now surviving before us by the said order of the Tribunal. With respect to ground No.2 relating to disallowance 40(a)(ia) on account of trade offers amounting to Rs.7,16,24,39,495/-, we find that this issue has been decided in favour of the assessee vide paragraph 8 of the said order and the same is reproduced herein under for a ready reference: “8. We have heard both the parties and perused all the relevant material available on record. It can be seen from Clause 2, 7, 8, 9, 14 and 19 of the “Agreement for the Supply of Cellular Mobile Phones” between HCL and the assessee that relationship between the assessee and HCL is that of principal to principal and not that of principal to agent. The discount which was offered to distributors is given for promotion of sales. This element cannot be treated as commission. There is absence of a principalagent relationship and benefit extended to distributors cannot be treated as commission under Section 194H of the Act. As regards to applicability of Section 194J of the Act, the Assessing Officer has not given any reasoning or finding to the extent that there is payment for technical service liable for withholding under Section 194J. Marketing activities have been undertaken by HCL on its own. Merely making an addition under Section 194J without the actual basis for the same on part of the Assessing Officer is not just and proper. The Ld. DR’s contention that discounts were given by way of debit notes and the same were not adjusted or mentioned in the invoice generated upon original sales made by the assessee, does not seem tenable after going through the invoice and the debit notes. In fact, there is clear mentioned about the discount for sales promotion. Thus, on both the account the addition made by the Assessing Officer does not sustain. Ground No. 2 is allowed.” 8.0.1 Respectfully following the order of the Co-ordinate bench in assessee’s own case in the immediately preceding year, on identical facts, we delete the impugned disallowance. Thus, ground No.2 stands allowed.” 27 | P a g e

ITA No.-6502/Del/2017 [Assessment Year : 2013-14]

Assessing Officer to delete the disallowance. Accordingly, this ground of the

assessee is allowed.

Rs.6,26,25,925/- on account of trade price protection paid to distributors.

Disallowance on account of Trade Price Protection (‘TPP’ extended to distributors for reduction in prices of handsets) [Disallowance amount of Rs.6,26,25,925/-] Revenue’s case Disallowance made on the ground that the assessee failed to justify the commercial expediency of the expenditure. Specific allegation in this regard are as under: a) Basis of computation, methodology of determining the stock lying unsold with the dealer, details of dates/periods and model for which TPP is offered was not provided (Para 108 of the final assessment order at Page No. 889 of the Appeal Set Volume II). b) Confirmations are stereotyped confirmation which makes the same doubtful (Para 110 of the final assessment order at Page No. 889 of the Appeal Set Volume II). c) Expense on account of TPP is not justified since it is in addition to trade offers being provided to the distributors and retailers (Para 112 of the final assessment order at Page No. 889 of the Appeal Set Volume II). d) TPP has not been debited as an expense but has been directly adjusted from total sales (Para 111 of the final assessment order at Page No. 889 of the Appeal Set Volume II).

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ITA No.-6502/Del/2017 [Assessment Year : 2013-14]

squarely covered in favour of the assessee. He reiterated the submissions as

made in the written submission. The submissions of the assessee are

reproduced hereunder:-

Assessee’s submissions The disallowance has been made on the same lines as A Y 2010-11 and AY 2011-12. For AY 2010-11, the Hon'ble ITAT vide order dated 20.02.2020 in ITA No.5791/Del/2015 in Para 11 of the order (Page No. 19 of Paperbook) has adjudicated this issue in favour of the Assessee and held as under: "We have heard both the parties and perused all the relevant material available on record. It is market practice that if there is any change in prices of handsets by competitors, change in life of mobile model, change in market demand of particular model which affects the sales, the distributor is protected by the Trade Price Protection. This is actually a commercial expediency in modern day technological changes which are very fast and vast. Besides, Trade Price Protection is offered to distributors on handsets which have not been subject to trade offers/discounts. This is evidenced by specific clause in the Trade Schemes filed before the Assessing Officer vide submission dated 10.03.2014 trade scheme. In-fact, it was pointed out during the course of hearing that in Assessment Year 2008-09, even the Assessing Officer has allowed the deduction for the instant like expenditure. In Assessment Year 2008-09, the matter was remanded back to the file of the Assessing Officer, who has allowed the deduction with respect to the expenditure, where confirmations have been obtained from the recipients. In any case, so far as the instant year is concerned, we have already noted in the earlier paragraph that the requisite confirmations were filed before the Assessing Officer. Thus, this expenditure is allowable as revenue 29 | P a g e

ITA No.-6502/Del/2017 [Assessment Year : 2013-14]

expenditure under Section 37(1) of the Act since it has been incurred wholly and exclusively for business and same cannot be questioned by the Assessing Officer. Ground No.3 is allowed." The said ruling has also been followed while adjudicating the same issue for Assessment Year 2011-12 in the order of this Hon'ble ITAT dated 17.08.2020 in ITA No. 1883/Del/2017 at Para 8.1 of the order (Page No. 45-46 of the Paperbook) and for AY 2012-13 vide order dated 15.10.2020 in ITA 6501/Del/2017 at Para 17-18 of the order.” 26. On the contrary, the ld. DR opposed the submissions and supported the

orders of the authorities below.

available on record. We find that this issue is also squarely covered in favour of

the assessee by the decision of the Coordinate Bench of the Tribunal in

assessee’s own case vide ITA No.1883/Del/2017 for Assessment Year 2011-12

and also in ITA No. 6501/Del/2017 for Assessment Year 2012-13. Respectfully

following the order of the Tribunal for Assessment Year 2011-12 and 2012-13,

we delete the disallowance. Accordingly, ground no.4 is allowed.

marketing expenditure of Rs.25,45,40,035/- incurred on account of issuance

of handsets on Free of Cost (‘FOC’) basis.

Disallowance of marketing expenditure incurred on account of issuance of handsets on Free of Cost (‘FOC’) basis. [Disallowance amount-Rs.25,45,40,035/-]

Revenue’s case

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• Cell phones and accessories given to service centres, dealers and employees free of cost is put to use for the business of the assessee. • The handsets are used in the business during the year and in the future also, an enduring benefit is being derived. Thus it was alleged that the expenditure is a capital expenditure and not a revenue expenditure. (Para 127 of the final assessment order at Page No. 895 of the Appeal Set Volume Il). 29. The ld. counsel for the assessee submitted that this issue is also

squarely covered in favour of the assessee. He reiterated the submissions as

made in the written submission. The submissions of the assessee are

reproduced hereunder:-

Assessee’s submissions The disallowance has been made on the same lines as AY 2010-11 and AY 2011-12. For AY 2010-11, the Hon'ble ITAT vide order dated 20.02.2020 in ITA No. 5791/Del/2015 in Para 17 of the order (Page No. 22 of Paperbook) has adjudicated this issue in favour of the Assessee and held as under: "We have heard both the parties and perused all the relevant material available on record. In the present assessment year, the assessee is engaged in manufacture, import and sale of mobile handsets. The assessee has given mobile handsets to its employees, dealers, sale personnel etc. for free of cost and thus no longer owned the said handsets. Thus, the said cost was rightly taken as business expenditure by the assessee and was rightly reduced from the inventory. This issue is decided in favour of the assessee for A.Ys. 2003-04 by the Tribunal in ITA No. 2445/Del/201O order dated 30.01.2018 which was also affirmed by the Hon'ble High Court in ITA No. 955/2018 order dated 31.08.2018. Thus, Ground No.5 is allowed." 31 | P a g e

ITA No.-6502/Del/2017 [Assessment Year : 2013-14]

The said ruling has also been followed while adjudicating the same issue for AY 2011-12 in the order of this Hon'ble ITAT dated 17.08.2020 in ITA No. 1883/Del/2017 at Para 8.2 of the order (Page No. 46-47 of the Paperbook) and for AY 2012-13 dated 15.10.2020 in ITA 6501/Del/2017 at Para 23 of the order.” 30. On the contrary, the ld. DR opposed the submissions and

supported the orders of the authorities below.

available on record. We find that this issue is also squarely covered in favour of

the assessee by the decision of the Coordinate Bench of the Tribunal in

assessee’s own case vide ITA No.1883/Del/2017 for Assessment Year 2011-12

and also in ITA No. 6501/Del/2017 for Assessment Year 2012-13. Respectfully

following the order of the Tribunal for Assessment Year 2011-12 and 2012-13,

we delete the disallowance. Accordingly, ground nos.5 & 6 are allowed.

towards amount of education cess and secondary and higher education cess

paid.

Deduction towards amount of education cess and secondary and higher education cess paid. [Disallowance amount-Rs.5,10,84,318/-] 33. The ld. counsel for the assessee submitted that this issue is also

squarely covered in favour of the assessee. He reiterated the submissions as

made in the written submission. The submissions of the assessee are

reproduced hereunder:-

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Assessee’s submissions Co-ordinate Bench of the Hon'ble ITAT vide order dated 14.09.2020 in ITA No. 3765/Del/2017 following the order of the Hon'ble High Court of Bombay (Panaji Bench) in Sesa Goa 423 ITR 426 has allowed deduction for the amount of education cess and secondary and higher education cess (Page no. 543 of the Paperbook). The Hon'ble High Court observed as follows- "43 the legislature, in Section 40(a)(ii) has provided that" any rate or tax levied" on "profits and gains of business or profession" shall not be deducted in computing the income chargeable under the head "profits and gains of business or profession" and there is no reference to any 'cess'. Obviously therefore, there is no scope to accept Ms. Linhares's contention that "cess" being in the nature of a "Tax" is equally not deductable in computing the income chargeable under the head "profits and gains of business or profession". Acceptance of such a contention will amount to reading something in the text of the provision which is not to be found in the text of the provision in Section 40(a)(ii) of the IT Act. 23. If the legislature intended to prohibit the deduction of amounts paid by a Assessee towards say, "education cess" or any other" cess", then, the legislature could have easily included reference to "cess" in clause (ii) of Section 40(a) of the IT Act. The fact that the legislature has not done so means that the legislature did not intend to prevent the www.taxguru.in 12 TXA 17&18-13 dt.28.02.2020 deduction of amounts paid by a Assessee towards the "cess", when it comes to computing income chargeable under the head "profits and gains of business or profession." 34. In respect of Education Cess, the ld. DR opposed the submissions

and supported the orders of the authorities below.

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ITA No.-6502/Del/2017 [Assessment Year : 2013-14] 35. We find that this issue is no more res-integra as has been decided

in favour of the assessee by the decision of the Co-ordinate Bench of the

Tribunal following the judgment of the Hon’ble Bombay High Court in the case

of Sesa Goa Ltd. vs DCIT (2020) 423 ITR 426. Therefore, respectfully following

the same, we hereby direct the Assessing Officer to delete the disallowance.

Above decision was pronounced on conclusion of Virtual Hearing in the

presence of both the parties on 16th December, 2021.

Sd/- Sd/- (R.K.PANDA) (KUL BHARAT) ACCOUNTANT MEMBER JUDICIAL MEMBER * Amit Kumar*/f{x~{tÜ f{x~{tÜ f{x~{tÜ f{x~{tÜ Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT

ASSISTANT REGISTRAR ITAT, NEW DELHI

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