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Income Tax Appellate Tribunal, K BENCH, MUMBAI
order
: 28.06.2022 O R D E R
Per Rahul Chaudhary, Judicial Member:
The present appeal is directed against assessment order dated, 30.01.2017 passed under Section 143(3) read with Section 144C(13) of the Income Tax Act, 1961 [hereinafter referred to as „the Act‟] for the Assessment Year 2012-13, as per directions issued by Dispute Resolution Panel-1, Mumbai (hereinafter referred to as „the DRP‟) under Section 144C(5) of the Act.
Appellant has raised following rounds of appeal: “1. Re: Adjustment of Rs. 2,72,11,637/- on account of import of spare parts and cranes/machines: Assessment Year: 2012-13 1.1. The Assessing Officer ["AO"]/the Dispute Resolution Panel ["DRP"] the Transfer Pricing Officer ["TPO"] erred in making an upward adjustment of Rs. 2,72,11,637/- to the value of international transactions pertaining to the import of spare parts and cranes/ machines for trading purpose entered into by the Appellant during financial year 2011-12. 1.2 The Appellant submits that, considering the facts and circumstances of its case and the law prevailing on the subject, the international transaction relating to import of spare parts and cranes/ machines are at arm's length and hence no adjustment in respect thereof was called for and the stand taken by the AO/ DRP/ TPO in this regard is misconceived, erroneous and incorrect.
1.3. The Appellant submits that, considering the facts and circumstances of its case and the law prevailing on the subject, the AO/ DRP/ TPO erred in rejecting the approach of the Appellant of aggregating all its international transactions and in proceeding to separately benchmark the transaction relating to the import of spare parts and cranes/ machines.
1.4. The Appellant submits that the AO should be directed to delete the transfer pricing adjustment of Rs. 2,72,11,637/- made by him and to re-compute the Appellant's total income accordingly.
1.5. Without prejudice to the forgoing, the AO /DRP/ TPO erred in not granting the Appellant an adjustment for the difference in the custom duty element in the value of imports between the Appellant and the comparable companies.
2 Assessment Year: 2012-13 1.6. Without prejudice to the forgoing, the AO/ DRP/ TPO after making a transfer pricing adjustment in respect of the value of the international transaction of import of spare parts and cranes/ machines erred in not granting the Appellant a corresponding adjustment vis a-vis the value of imported spare parts and cranes/ machines which were lying in the closing stock.
2. Re: Ad-hoc disallowance of travelling expenses 2.1 The AO DRP erred in disallowing a sum of Rs. 1,75,42,136/- being 40% of the travelling and conveyance expenditure of Rs. 4,38,55.340. 2.2 The AO DRP erred in stating that the Appellant has not provided any satisfactory response and has not furnished details of travelling expenses and whether these are fully incurred for the purpose of its business. The AO/DRP erred in completely disregarding the details of travelling expenses, being expense ledger, and sample copies of vouchers/ invoices, which were furnished by the Appellant during the assessment proceedings well as the additional evidence filed during the proceedings before the DRP.
2.3 The AO DRP erred in alleging that the travelling and conveyance expense debited to profit and loss account involves a personal element.
2.4 The AO/ DRP erred in making the ad-hoc disallowance of 40% of the travelling expenses merely on the basis of the orders for the earlier assessment years, without providing any basis for the same.
3. Re: Others:
3 Assessment Year: 2012-13 3.1 The Appellant submits that the AO/DRP/TPO have erred in arriving various unwarranted and erroneous conclusions unsupported by any relevant material in deciding the case.
3.2 The Appellant submits that each grounds of appeal are without prejudice to one another.”
Brief facts of the case are that the Appellant, a private limited company, is wholly owned subsidiary of Liebherr Warknenzing GMBH, Austria and forms part of Libherr Group of Companies engaged in the business of manufacture and sale of products including harbour mobile cranes, ship cranes, maritime cranes, hydraulic duty cycle crawler and lift cranes. The Appellant is engaged, inter alia, in sales promotion, sales/servicing of equipment, sale/supply of spare parts, provision of supervisory, and after sales repair & maintenance services relating to construction machinery such as construction cranes, crawler cranes, hydraulic excavators, etc.
The Appellant filed return of income for the Assessment Year 2012-13 on 30.11.2012 declaring total income of INR 4,38,28,860/-. The case of the Appellant was selected for scrutiny and notice under Section 142(1)/143(2) were issued to the Appellant. During the assessment proceedings, the Assessing Officer noted that the Appellant had entered into international transactions with Associated Enterprises (AEs) and therefore, a reference was made to the Transfer Pricing Officer (TPO) for computation of Arm‟s Length Price (ALP) under Section 92CA(1) of the Act.
4 Assessment Year: 2012-13
The TPO observed that the Appellant had, in earlier years, provided segmental workings in respect of following three business segment viz. (i) commission segment having sales commission/agency and marketing income, (ii) service segment having income from services provided by the Appellant in warranty and post-warranty period and (iii) trading segment having income from trading in spare parts and machines. However, the aforesaid segmental workings were not provided by the Appellant for the Assessment Year 2012-13. Further, the international transactions pertaining to the aforesaid segments were benchmarked applying different methods as compared to the earlier years. In earlier years the transaction pertaining to commission segment, service segment and trading segment were benchmarked using Comparable Uncontrolled Price Method (CUP), Cost Plus Method (CPM) and Resale Price Method (RPM), respectively. However, for the Assessment Year 2012-13, the Appellant had adopted aggregation approach and determined ALP by using TNMM using entity level margins. Accordingly, a show cause notices, vide order sheet entry dated 30.11.2015, 04.01.2015 and 08.01.2015, were given to the Appellant to explain the change in the most appropriate method adopted for benchmarking transactions, and for furnishing segmental workings. The Appellant responded to the aforesaid notices and submitted that all the activities undertaken by the Appellant were closely interlinked and were dependent upon the outcome of each other. The Appellant had, therefore, selected TNMM as most appropriate method to benchmark the international transactions. The TPO, however, rejected entity level benchmarking using TNMM by adopting aggregation of transaction approach followed by the Appellant. According to 5 Assessment Year: 2012-13 TPO, the Appellant had failed to provide any justification for deviation in selection of most appropriate method and had not provided segmental workings. The TPO proceeded to calculate segmental workings for the Assessment Year 2012-13 on the basis of segmental profitability workings provided by the Appellant for the Assessment Year 2011-12. After carrying out segmental analysis for the Assessment Year 2012-13, the TPO concluded that the ALP of the international transactions pertaining to commission segment and service segment were at arm‟s length. Accordingly, the TPO proceeded to determine ALP for international transaction pertaining to trading segment by adopting Resale Price Method (RPM) as the most appropriate method. The TPO computed gross profit margin for the trading segment at 0.28% and benchmarked the same against the arithmetic mean of the gross profit margin of the comparable companies identified by the Appellant in its own Transfer Pricing Report which was computed at 29.88%. Thus, TPO proposed upwards transfer pricing adjustment of INR 7,04,81,698/- vide order, dated 29.01.2016, passed under Section 92CA(3) of the Act.
On the basis of the order passed by the TPO, the Assessing Officer proposed a transfer pricing addition of INR 7,04,81,698/- vide Draft Assessment Order, dated 20.03.2016, passed under Section 143(3) read with Section 144C(1) of the Act. In addition, the Assessing Officer also proposed (a) an addition of INR 1,75,42,136/- being 40% of the travelling expenses debited to the Profit & Loss Account and (b) an addition of INR 1,43,082/- being amount of wealth tax debited to the Profit & Loss Account.
6 Assessment Year: 2012-13
The Appellant filed objection before the DRP against the Draft Assessment Order and contended that during the course of assessment proceedings, the Appellant had provided detailed reasons justifying the adoption of aggregation of transaction approach and TNMM as the most appropriate method for benchmarking the international transactions. However, the TPO/Assessing Officer disregarded the economic analysis conducted by the Appellant for determination of ALP and erred in applying RPM by rejecting the aggregation of transaction approach adopted by the Appellant while using TNMM as the most appropriate method. Without prejudice to the aforesaid, it was contended on behalf of Appellant that the TPO had committed error while computing the profit margin of some of the companies considered by the Appellant as comparables. Further, the Appellant contended that the TPO had erred in making transfer pricing adjustment in respect of the entire value of the international transaction of import of spares and machines without providing economic adjustments for custom duty adjustment and closing stock adjustment. The DRP disposed of the objections filed by the Appellant vide order, dated 28.12.2016, and issued directions under Section 144C(5) of the Act. The DRP rejected the objections of the Appellant against rejecting of the aggregation approach adopted by the Appellant and confirmed the order of TPO/Assessing Officer adoption of RPM method for determining ALP for the international transaction pertaining to trading segment. The DRP also confirmed the order of TPO by not granting economic adjustments, i.e., custom duty adjustment and closing stock adjustment, claimed by the Appellant. The objections of the Appellant against the disallowance of INR 1,75,42,136/-, being 40% of travelling 7 Assessment Year: 2012-13 expenses, was also rejected by the DRP on the ground that the Appellant had failed to furnish entire evidence in support of its claim. However, the DRP granted relief to the Appellant to the extent DRP gave directions to the Assessing Officer/TPO to verify the margin workings of the comparables as per their respective annual reports and reworked the adjustments accordingly.
Vide order, dated 30.01.2017, the Assessing Officer completed assessment under Section 143(3) read with Section 144C(13) of the Act on the Appellant at total income of INR 8,87,25,715/- after making transfer pricing adjustment of INR 2,72,11,637/- and after making disallowance of INR 1,75,42,136/- and INR 1,43,082/- pertaining to travelling expenses and wealth tax liability, respectively.
Being aggrieved, the Appellant has filed the present appeal challenging the transfer pricing addition of INR 2,72,11,637/- (Ground No. 1 to 1.6) and disallowance of travelling expenses of INR 1,75,42,136/- (Ground No. 2 to 2.4).
Ground No. 1 to 1.6 10. The Ld. Authorised Representative for the Appellant appearing before us submitted that the Appellant is the marketing arm of Liebherr Group in India and earns commission income by facilitating sale of Liebherr Group machines to customers in India. In some cases customers raise order on the Appellant, then the Appellant purchases the machines from Liebherr Group and sells the same to the customers, thus, earning profit on sale of machines. Further, during the warranty period, the Appellant also 8 Assessment Year: 2012-13 provides after sales services to the customers in India as per the after sales services agreement entered into by the Appellant with its AEs for which the Appellant is compensated by way of service fees based upon the time spent which is in addition to the cost of spares replaced by the Appellant. Post warranty period, the Appellant enteres into after sales service agreement directly with the customers for provision of services and sale/supply of spare parts. All the business activities undertaken by the Appellant i.e. marketing agency/commission, trading and services are inter- related and have been aggregated for benchmarking. He submitted that marketing activity results in more orders for the group companies leading to increased sales of machines in India and earning of commission income by the Appellant. Increased sales, in turn, results in more after sale services and supply/sale of spare to the customers in India. This is the prime reason for adopting aggregation approach during the relevant previous year and selection of TNMM as most appropriate method of benchmarking international transactions. In this regard he relied upon letter dated 28.10.2015 and 08.01.2016 filed during the assessment proceedings and referred to paragraph 9.3.2 of the Transfer Pricing Documentation. The Ld. Authorised Representative for the Appellant also relied upon the decision of Pune bench of the Tribunal in the case of Cummins India Ltd Vs. Additional Commission of Income Tax: 170 TTJ 746 in support of his contentions. Without prejudice to the aforesaid, the Learned Authorised Representative of the Appellant submitted that even while adopting RMP for determining ALP, the TPO has erred in not providing economic adjustment claimed by the Appellant. Referring to the working for customs duty adjustment, he submitted that the Appellant was entitled to adjustment for extra 9 Assessment Year: 2012-13 custom duty paid by the Appellant on account of having higher percentage of imports to total purchase as compared to the comparables and relied upon the decision of Tribunal in the case of Skoda Auto India Pvt. Ltd. Vs ACIT: 30 SOT 319 in this regard. Further, the Learned Authorised Representative of the Appellant submitted that the Appellant is also entitled to closing stock adjustment on account of imported machines/spares but not sold and therefore, forming part of the closing stock. He submitted that the TPO/DRP has erred in calculating the transfer pricing adjustment on full value of purchasers without providing aforesaid adjustment and relied upon the objects filed before DRP in this regard.
In response, the Ld. Departmental Representative relied upon the order passed by the TPO and DRP to support the Assessment Order. He submitted that the Appellant had failed to provide any cogent reasons for adopting a different method for benchmarking international transactions as compared to earlier years. There has been no change in the business model and/or the facts and circumstances to necessitate such a change. The aggregation approach has been rightly rejected by the TPO as each transaction can be benchmarked separately as was the case in the earlier years.
We have given thoughtful considerations to the rival submission and have perused the material placed on record. It is settled legal position that adoption of aggregation approach is permissible as per Indian transfer pricing regulations. The term „transaction‟ as defined in Rule 10A(d) of the Income Tax Rules 1962 includes a number of closely linked transactions. Therefore, 10 Assessment Year: 2012-13 keeping in view, the definition of the term „transaction‟, the most appropriate method can be chosen for a group of closely linked transactions. However, the issue for consideration is whether aggregation approach is desirable in the facts and circumstances of the case. It is the contention of the Appellant that all the transactions are closely interlinked and therefore, aggregation approach should be adopted. In our view, this is not sufficient to adopt aggregation approach. A perusal of paragraph 9.3.2 of Transfer Pricing Documentation dealing with Aggregation of Transactions relied upon by the Learned Authorised Representative of the Appellant (placed at Page 57 of the paper- book) makes clear that aggregation of controlled transactions is desirable when it is impracticable to analyze pricing/profits of each individual transaction, or if the transactions are so inter- related that this is the most reliable means of benchmarking the outcome of the transaction against an arm‟s length outcome. In our view, neither of the aforesaid conditions are satisfied in the facts of the present case. While, the Appellant has set up a case that the transactions are inter-related, there is nothing on record to establish that adoption of aggregation approach would lead to more reliable results. We note that the Appellant had not adopted aggregation approach in two immediately preceding assessment years. The transactions under each segment were clearly identifiable and did not emanate from a common source being an order, contract, agreement or arrangement. During the relevant assessment year the Appellant had imported spares and machinery from AEs in Switzerland, France and Germany. Whereas the Appellant had received service commission from AEs in Austria, Germany, France and Switzerland under separate contracts. The international transactions under consideration are 11 Assessment Year: 2012-13 of different nature. In the two immediately preceding assessment years the appellant had furnished segmental working for commission segment, service segment and trading segment, and the International Transactions pertaining to trading segment were benchmarked using RPM. Vide Letter, dated 28.10.2015, filed during the assessment proceedings the Appellant has expressed the apprehension that reliable data may not be available from publicly available database to facilitate application of RPM and that hidden differences in accounting of direct costs can lead to distorted results. However, given the fact that the Appellant had adopted RPM in the immediately two preceding assessment years and not faced such hindrances, we are not persuaded to accept the aforesaid apprehension of the Appellant as a genuine reason for rejecting RMP. Trading segment of the Appellant involves import of spares and machinery from AEs for sale to customers in India without making any value addition. The Appellant had adopted RPM as most appropriate method for benchmarking international transactions pertaining to trading segment during the Assessment Year 2010-11 and 2011-12. It is admitted position that there is no change in the facts and circumstances during Assessment Year Assessment Year 2012- 13 as compared to Assessment Years 2010-11 and 2011-12. In view of the aforesaid, we hold that the Revenue was justified in rejecting the aggregation approach adopted by the Appellant and in adopting RPM to benchmark international transactions pertaining to trading segment. Even the decision of the Tribunal in the case of Cummins India Ltd Vs Additional Commissioner of Income Tax: 170 TTJ 746 relied upon by the Learned Authorised Representative of the Appellant does not advance the case of the Appellant as it would not apply to the case at hand and more so, 12 Assessment Year: 2012-13 since in that case the activities aggregated were ancillary/miniscule to the main function of sale of spare parts (as per the break-up of revenues given in para 22 of the said decision).
Coming to the economic adjustments sought by the Appellant, we are of the view that the TPO/AO/DRP were correct in rejecting the same as the Appellant has failed to establish how the economic adjustments claimed by the Appellant could „materially affect‟ the amount of gross profit margin in the open market as per the requirements of Rule 10B(1)(b) of the Income Tax Rules, 1962. We are of the view that impact of the custom duty adjustments and closing stock adjustment sought by the Appellant can be discerned on the basis of the standalone computation provided by the Appellant. Further, as rightly noted by the DRP, closing stock adjustment claimed by the Appellant was not required in view of the fact that the financials of the Appellant as well as the comparable companies were prepared in accordance with the Accounting Standard – 2. The decisions relied upon by the Ld. Authorised Representative of the Appellant are distinguishable on facts having no application to the present case. The aforesaid, also holds good for the decisions relied upon to support the claim of custom duty adjustment. The decision in the case of Skoda Auto India Private Limited (supra) does not advance the case of the Appellant as in that case it was held that higher import content of raw material by itself does not warrant adjustments in operating margins. However, where the higher import content is reflective of the difference in business models of the assessee and the comparables, adjustments can be made for functional differences. Therefore, in our view, the DRP was justified in 13 Assessment Year: 2012-13 not granting the excise duty adjustment and closing stock adjustment sought by the Appellant.
In view of the above, Ground No. 1 to 1.6 raised by the Appellant are dismissed.
Ground No. 2 to 2.4 15. The relevant facts are that during the relevant previous year Appellant claimed deduction of INR 4,38,55,340/- as travelling and conveyance expenses. During the assessment proceedings, the Assessing Officer issued show cause notice to the Appellant requiring the Appellant explain why 40% of such expenses should not be disallowed in view of similar disallowance made in the preceding assessment years. The reply filed by the Appellant in response to the aforesaid show cause notice was not to the satisfaction of the Assessing Officer and therefore, in the Draft Assessment Order, dated 23.03.2016, the Assessing Officer disallowed INR 1,75,42,136/-, being 40% of total travelling and conveyance of INR 4,38,55,340/-, debited to the Profit & Loss account, on the ground that the Appellant had failed to furnish details of travelling expenses to establish that the same were incurred wholly and inclusively for the purpose of business of the Appellant. The Appellant filed objections before DRP against the aforesaid proposed addition, and filed additional evidence on 26.09.2016 to support the claim of deduction of travelling and conveyance expenses. However, the DRP rejected the objections on the ground that the Appellant had produced sample copies and therefore has failed to discharge the onus cast upon the Appellant to furnish entire evidence. Accordingly, addition of INR 14 Assessment Year: 2012-13 1,75,42,136/- was made by the Assessing Officer in the Final Assessment Order, dated 30.01.2017.
Being aggrieved, the Appellant is before us in appeal on this issue. We note that this is a recurring issue. While deciding identical issue in the case of the Appellant for the Assessment Years 2010-11 (ITA No. 4213/Mum/2017), 2011-12 (ITA No. 3497/Mum/2017), 2013-14 (ITA No. 1856/Mum/2018) and 2014- 15 (ITA No. 1857/Mum/2018) by way of common order dated 22.05.2020, the Tribunal restricted the disallowance pertaining to travelling and conveyance expenses to 10% of the amount debited to Profit & Loss account by following the decision of the Tribunal in the case of the Appellant for the Assessment Year 2009-10 (ITA No. 3496/Mum/2017), dated 24.12.2019. The relevant extract of the aforesaid decision read as under:
4.1. We have heard rival submissions and perused the materials available on record. We find that the assessee had incurred total travelling and conveyance expenses of Rs.1,80,49,723/- during the year under consideration. The assessee was asked by the ld. AO to produce supporting evidences in respect of travelling and conveyance expenses above Rs.1,00,000/-. The ld. AO observed that despite several opportunities provided to the assessee, the assessee failed to produce supporting evidences and accordingly proceeded to disallow 40% of the total travelling and conveyance expenditure on an adhoc basis amounting to Rs.72,19,889/- in the assessment. We find that the ld. CIT(A) had observed that assessee had submitted the copies of vouchers and invoices of travelling and conveyance expenses before him and the same were duly subjected to remand proceedings and duly verified by the ld. AO. Before the ld. AO also, further details were submitted by the assessee. These facts are recorded by the ld. CIT(A) in page 18 para 2.4.15 of his order. We find that 15 Assessment Year: 2012-13 assessee had incurred these travelling and conveyance expenses in respect of site visits of its personnel, trainings, meetings and other official visits for which detailed break-up were filed alongwith written submissions. We find that the ld. AO in the remand report had observed that certain details furnished by the assessee contain the provision for expenses which are contingent in nature and hence, not allowable as deduction; certain expenses are reflected as receivable and later transferred to expenses by the assessee by way of journal entry in the books of accounts. In the opinion of the ld. AO, these expenses are not fully verifiable and assessee could not substantiate the veracity of the same. Accordingly, the ld. CIT(A) observed that the entire travelling and conveyance expenses could not be fully verifiable at the end of the ld. AO and restricted the disallowance to 30% of total travelling and conveyance expenses and reduced the disallowance to Rs.54,14,917/- as against Rs.72,19,889/- made by the ld. AO. We find that the assessee had filed detailed bills and vouchers in the form of additional evidences before the ld. CIT(A) comprising of pages 3- 739 of the paper book which were also filed before us. These details were subject to verification by the ld. AO in the remand proceedings and in the remand report, the ld. AO had held that some of the expenses are not fully verifiable. We find in these circumstances, some adhoc disallowance of expenses need to be made. However, the disallowance @30% would be on the higher side given the status of the company and the behavior of the assessee. Hence, we hold that disallowance on an adhoc basis at 10% of total travelling and conveyance expenses would meet the ends of justice in the peculiar facts and circumstances of the instant case. Accordingly, the ground No.3 raised by the assessee is partly allowed.
We note that during the assessment proceedings for relevant assessment year disallowance of 100% of travelling and conveyance expenses has been made in identical facts and 16 Assessment Year: 2012-13 circumstances. In appeal for the earlier years such disallowance has been restricted to 10% of the travelling and conveyance expenses by the Tribunal. Respectfully following the aforesaid decision of the Tribunal in the case of the Appellant, we restrict the disallowance of travelling and conveyance expenses to 10% of the amount debited to Profit & Loss account during the relevant previous year. Accordingly, Ground No. 2. to 2.4 are partly allowed.
In the result, appeal filed by the Appellant is partly allowed.