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PER G.S. PANNU PER G.S. PANNU, , , , VP: PER G.S. PANNU PER G.S. PANNU The captioned NTT DATA Global Delivery Services Private Limited (as Successor) arising from an assessment made on NTT DATA India Enterprises Application Services Pvt.Ltd. by the DCIT, Circle-18(2), New Delhi dated 27th January, 2015 for assessment year 2010-11; and, is an appeal filed by NTT DATA Global Delivery Services Pvt.Ltd. arising from an assessment made by the DCIT, Circle- 18(2), New Delhi dated 27th January, 2015 for assessment year 2010- 11.
At the time of hearing, the learned representatives of the assessee pointed out that the grounds raised in the respective appeals are liable to be disposed of either in the light of the Resolution of the same under Mutual Agreement Procedure (MAP) between the competent authorities of India and US and/or in view of the fact that the assessee is opting to settle the dispute under Vivad Se Vishwas Act, 2020 scheme. Learned Senior DR appearing for the Revenue has not disputed the aforesaid position sought to be canvassed by the learned representatives.
In order to impart completeness to the order, we proceed to dispose of the captioned appeals as under.
Insofar as is concerned, the grounds of appeal as revised/modified read as under :-
(I) Transfer pricing adjustment made to the transactions entered with Associated Enterprises (“AEs ) in United States (“US”)
On the facts and in the circumstances of the case and in law,
1. The learned AO erred in completing the assessment proceedings by admittedly not giving effect to the directions of the Hon’ble DRP under section 144C(5) of the Act and thereby violating the provisions of section 144C(13) of the Act. Since the impugned order does not take into account all the directions of the Hon’ble DRP, the same is bad in law and void ab initio.
2. The learned AO/Transfer Pricing Officer (‘TPO’) erred in making an addition of INR 10,90,63,748 to the total income of the Appellant on account of adjustment in the arm’s length price of the software development services transaction entered by the Appellant with its AEs in US;
3. The learned AO/TPO erred, in law and in facts, by not accepting the economic analysis undertaken by the Appellant in accordance with provisions of the Income-tax Act, 1961 (“the Act”) read with the Income-tax Rules, 1962 (“the Rules”), and modifying the same for determination of arm’s length prices (‘ALP’) of the impugned transaction to hold that the same is not at arm’s length.
4. The learned AO/TPO erred, in law and in facts, by determining the arm’s length margin/price using only FY 2009-10 data, which was not available to the Appellant at the time of complying with the transfer pricing documental requirements;
5. The learned AO/TPO erred, in law and in facts, by rejecting the supplementary/alternate economic analysis using internal TNMM as submitted by the Appellant.
6. The learned AO/TPO erred in rejecting certain comparable by applying the following quantitative and qualitative filters :
(a) The learned AO/TPO erred, in law and in facts, by not applying the upper turnover filter as a comparability criterion; (b) The learned AO/TPO erred, in law and in facts, by rejecting certain comparable companies identified by the Appellant for having different accounting year (i.e. companies having accounting year other than March 31 or companies whose financial statements were for a period other than 12 months); (c) The learned AO/TPO erred, in law and in facts, by rejecting certain comparable companies identified by the Appellant on account of showing diminishing revenues trend; (d) The learned AO/TPO erred, in law and in facts, by rejecting certain comparable companies identified by the Appellant using ‘Employee cost greater than 25 percent of total cost’ as a comparability criterion; (e) The learned AO/TPO erred, in law and in facts, by rejecting certain comparable companies identified by the Appellant using ‘Export earnings less than 75 percent of operating revenues’ as a comparability criterion;
7. The learned AO/TPO erred, in law and in facts, by accepting/rejecting companies based on unreasonable comparability criteria.
8. The learned AO/TPO erred, in law and in facts, by committing computational errors in the impugned TP order;
9. The learned AO/TPO erred, in law and in facts, by not making suitable adjustments on account of differences in the risk profile of the Appellant vis-a-vis the comparables, while conducting comparability analysis;
10. The learned AO/TPO erred, in law and in facts, by computing the arm’s length price without giving benefit of +/- 5 percent under the proviso to section 92C of the Act; (II) Transfer pricing adjustment made to the transactions entered with Non-US AEs On the facts and in the circumstances of the case and in law,
11. The learned AO erred in completing the assessment proceedings by admittedly not giving effect to the directions of the Hon’ble DRP under section 144C(5) of the Act and thereby violating the provisions of section 144C(13) the Act. Since the impugned order does not take into account all the directions of the Hon’ble DRP, the same is bad in law and void ab initio.
12. The learned AO/Transfer Pricing Officer (‘TPO’) erred in making an addition of INR 1,53,38,839 to the total income of the Appellant on account of adjustment in the arm’s length price of the software development services transaction entered by the Appellant with its Non-US associated enterprises;
13. The learned AO/TPO erred, in law and in facts, by not accepting the economic analysis undertaken by the Appellant in accordance with provisions of the Income-tax Act, 1961 (‘the Act’) read with the Income-tax Rules, 1962 (‘the Rules’), and modifying the same for determination of arm’s length prices (‘ALP’) of the impugned transaction to hold that the same is not at arm’s length.
14. The learned AO/TPO erred, in law and in facts, by determining the arm’s length margin/price using only FY 2009-10 data, which was not available to the Appellant at the time of complying with the transfer pricing documentation requirements;
15. The learned AO/TPO erred, in law and in facts, by rejecting the supplementary/alternate economic analysis using internal TNMM as submitted by the Appellant’
16. The learned AO/TPO erred in rejecting certain comparable companies by applying the following quantitative and qualitative filters:
(a) The learned AO/TPO erred, in law and in facts, by not applying the upper turnover filter as a comparability criterion; (b) The learned AO/TPO erred, in law and in facts, by rejecting certain comparable companies identified by the Appellant for having different accounting year (i.e. companies having accounting year other than March 31 or companies whose financial statements were for a period other than 12 months); (c) The learned AO/TPO erred, in law and in facts, by rejecting certain comparable companies identified by the Appellant on account of showing diminishing revenues trend; (d) The learned AO/TPO erred, in law and in facts, by rejecting certain comparable companies identified by the Appellant using ‘Employee cost greater than 25 percent of total cost’ as a comparability criterion; (e) The learned AO/TPO erred, in law and in facts, by rejecting certain comparable companies identified by the Appellant using ‘Export earnings less than 75 percent of operating revenues’ as a comparability criterion;
17. The learned AO/TPO erred, in law and in facts, by accepting/rejecting companies based on unreasonable comparability criteria.
18. The learned AO/TPO erred, in law and in facts, by committing computational errors in the impugned TP order;
19. The learned AO/TPO erred, in law and in facts, by not making suitable adjustments on account of differences in the risk profile of the Appellant vis-a-vis the comparables, while conducting comparability analysis;
20. The learned AO/TPO erred, in law and in facts, by computing the arm’s length price without giving benefit of +/- 5 percent under the proviso to section 92C of the Act; (III) Corporate tax and other grounds On the facts and in the circumstances of the case and in law,
21. The learned AO has erred, in law and facts, in determining the total income of the Appellant at INR 32,57,31,280 and the total tax and interest payable (as reduced by the tax deducted at source and advance tax) by the appellant at INR 6,70,62,860.
22. The learned AO has erred in law and facts, in not granting full credit in respect of TDS and advance tax claimed by the Appellant;
The learned AO has erred in levying interest of INR 2,46,17,984 under Section 234B of the Act.”
It has been explained before us that insofar as the dispute manifested in Ground of Appeal Nos.1 to 10 relating to the transfer pricing adjustment entered with Associated Enterprises in USA is concerned, the same has been resolved in terms of the MAP proceedings and, therefore, the said grounds may be allowed to be withdrawn. In view of the aforesaid submission, the said Grounds of Appeal Nos.1 to 10 are dismissed as withdrawn.
6. Insofar as Ground Nos.11 to 20 relating to transfer pricing adjustment made to the transactions entered with Non-USA entities; Ground Nos.21 to 23 relating to short grant of credit for TDS/Advance Tax are concerned, the say of the learned representatives is that the assessee is contemplating to settle the dispute under The Direct Tax Vivad se Vishwas Act, 2020.
In view of the submissions made, the appeal in is consigned to records and treated as dismissed.
However, the aforesaid is subject to a caveat that in case the dispute relating to tax arrears for the captioned assessment year is not ultimately resolved in terms of the aforestated Act, the appellant (i.e., the assessee) shall be at liberty to approach the Tribunal for reinstitution of the appeal and the Tribunal shall consider such application appropriately as per law. The respondent (i.e., the Revenue) has no objection with regard to the aforesaid caveat.
Accordingly, the appeal in is dismissed.
Insofar as is concerned, the grounds of appeal as revised/modified read as under :-
(I) Transfer pricing adjustment made to the transactions entered with Associated Enterprises (“AEs ) in United States (“US”)
On the facts and in the circumstances of the case and in law,
The learned AO erred in completing the assessment proceedings by admittedly not giving effect to the directions of the Hon’ble DRP under section 144C(5) of the Act and thereby violating the provisions of section 144C(13) of the Act. Since the impugned order does not take into account all the directions of the Hon’ble DRP, the same is bad in law and void ab initio.
2. The learned AO/Transfer Pricing Officer (‘TPO’) erred in making an addition of INR 46,99,24,625 to the total income of the Appellant on account of adjustment in the arm’s length price of the software development services transaction entered by the Appellant with its AEs in US;
3. The learned AO/TPO erred, in law and in facts, by not accepting the economic analysis undertaken by the Appellant in accordance with provisions of the Income-tax Act, 1961 (“the Act”) read with the Income-tax Rules, 1962 (“the Rules”), and modifying the same for determination of arm’s length prices (‘ALP’) of the impugned transaction to hold that the same is not at arm’s length.
4. The learned AO/TPO erred, in law and in facts, by determining the arm’s length margin/price using only FY 2009-10 data which was not available to the Appellant at the time of complying with the transfer pricing documentation requirements;
6. The learned AO/TPO erred in rejecting certain comparable by applying the following quantitative and qualitative filters :
(a) The learned AO/TPO erred, in law and in facts, by not applying the upper turnover filter as a comparability criterion; (b) The learned AO/TPO erred, in law and in facts, by rejecting certain comparable companies identified by the Appellant for having different accounting year (i.e. companies having accounting year other than March 31 or companies whose financial statements were for a period other than 12 months); (c) The learned AO/TPO erred, in law and in facts, by rejecting certain comparable companies identified by the Appellant on account of showing diminishing revenues trend; (d) The learned AO/TPO erred, in law and in facts, by rejecting certain comparable companies identified by the Appellant using ‘Employee cost greater than 25 percent of total cost’ as a comparability criterion; (e) The learned AO/TPO erred, in law and in facts, by rejecting certain comparable companies identified by the Appellant using ‘Export earnings less than 75 percent of operating revenues’ as a comparability criterion;
The learned AO/TPO erred, in law and in facts, by accepting/rejecting companies based on unreasonable comparability criteria.
7. The learned AO/TPO erred, in law and in facts, by not considering gains/losses arising out of foreign exchange fluctuations while computing the operating margins of the Appellant as well as comparable companies.
8. The learned AO/TPO erred, in law and in facts, by not making suitable adjustments on account of differences in the risk profile of the Appellant vis-a-vis the comparables, while conducting comparability analysis;
9. The learned AO/TPO erred, in law and in facts, by computing the arm’s length price without giving benefit of +/- 5 percent under the proviso to section 92C of the Act; (II) Transfer pricing adjustment made to the transactions entered with Non-US AEs On the facts and in the circumstances of the case and in law,
10. The learned AO erred in completing the assessment proceedings by admittedly not giving effect to the directions of the Hon’ble DRP under section 144C(5) of the Act and thereby violating the provisions of section 144C(13) the Act. Since the impugned order does not take into account all the directions of the Hon’ble DRP, the same is bad in law and void ab initio.
11. The learned AO/Transfer Pricing Officer (‘TPO’) erred in making an addition of INR 11,91,74,817 to the total income of the Appellant on account of adjustment in the arm’s length price of the software development services transaction entered by the Appellant with its Non-US AEs;
The learned TPO/AO erred, in law and in facts, by not accepting the economic analysis undertaken by the Appellant in accordance with provisions of the Income-tax Act, 1961 (‘the Act’) read with the Income-tax Rules, 1962 (‘the Rules’), and modifying the same for determination of arm’s length prices (‘ALP’) of the impugned transaction to hold that the same is not at arm’s length.
13. The learned AO/TPO erred, in law and in facts, by determining the arm’s length margin/price using only FY 2009-10 data, which was not available to the Appellant at the time of complying with the transfer pricing documentation requirements;
14. The learned AO/TPO erred in rejecting certain comparable companies by applying the following quantitative and qualitative filters:
(a) The learned TPO/AO erred, in law and in facts, by rejecting certain comparable companies using ‘Turnover less than INR 5 crores as a comparability criterion; (b) The learned AO/TPO erred, in law and in facts, by rejecting certain comparable companies identified by the Appellant for having different accounting year (i.e. companies having accounting year other than March 31 or companies whose financial statements were for a period other than 12 months); (c) The learned TPO/AO erred, in law and in facts, by rejecting certain comparable companies identified by the Appellant on account of showing diminishing revenues trend; (d) The learned TPO/AO erred, in law and in facts, by rejecting certain comparable companies identified by the Appellant using ‘Employee cost greater than 25 percent of total cost’ as a comparability criterion; (e) The learned TPO/AO erred, in law and in facts, by rejecting certain comparable companies identified by the Appellant using ‘Export earnings less than 75 percent of operating revenues’ as a comparability criterion;
15. The learned TPO/AO erred, in law and in facts, by accepting/rejecting companies based on unreasonable comparability criteria.
The learned TPO/AO erred, in law and in facts, by not considering gains/losses arising out of foreign exchange fluctuations while computing the operating margins of the Appellant as well as comparable companies.
The learned AO/TPO erred, in law and in facts, by not making suitable adjustments on account of differences in the risk profile of the Appellant vis-a-vis the comparables, while conducting comparability analysis;
The learned AO/TPO erred, in law and in facts, by computing the arm’s length price without giving benefit of +/- 5 percent under the proviso to section 92C of the Act; (III) Corporate tax and other grounds On the facts and in the circumstances of the case and in law,
The learned AO has erred in law and facts by not granting deduction under section 10A/10AA of the Act in respect of interest income and miscellaneous income amounting to INR 29,31,95,455 and INR 30,01,004 respectively, which forms part of the business income of the Appellant.
The learned AO has erred in law and facts, in not granting full credit in respect of TDS and advance tax claimed by the Appellant;
The learned AO has erred, in law and facts, in determining the total income of the Appellant at INR 118,06,06,788 and the total tax and interest payable (as reduced by the tax deducted at source and advance tax) by the appellant at INR 40,24,50,570’
The learned AO has erred in levying interest of INR 10,87,65,428 under Section 234 of the Act, INR 9,25,620 under Section 234C of the Act, INR 1,01,14,656 under Section 234D of the Act and INR 70,06,190 under Section 244A of the Act.”
It has been explained before us that the dispute manifested in Ground of Appeal Nos.1 to 9 relating to the transfer pricing adjustment entered with Associated Enterprises in USA has been resolved in terms of the MAP proceedings and, therefore, the said grounds may be allowed to be withdrawn. In view of the aforesaid submission, the said Grounds of Appeal Nos.1 to 9 are dismissed as withdrawn.
12. Insofar as Ground Nos.10 to 18 relating to transfer pricing adjustment made to the transactions entered with Non-USA entities; Ground Nos.19 relating to non-grant of deduction under Section 10A/10AA in respect of interest income; and Ground Nos.20 to 22 relating to short grant of credit for TDS/Advance Tax and determination of total income and interest are concerned, the say of the learned representatives is that the assessee is contemplating to settle the dispute under The Direct Tax Vivad se Vishwas Act, 2020.
In view of the submissions made, the appeal in is consigned to records and treated as dismissed.
However, the aforesaid is subject to a caveat that in case the dispute relating to tax arrears for the captioned assessment year is not ultimately resolved in terms of the aforestated Act, the appellant (i.e., the assessee) shall be at liberty to approach the Tribunal for reinstitution of the appeal and the Tribunal shall consider such application appropriately as per law. The respondent (i.e., the Revenue) has no objection with regard to the aforesaid caveat.
In the result, both the appeals of the assessee are dismissed.
Above decision was announced in the presence of both the sides on conclusion of Virtual Hearing on 16th November, 2020.