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Income Tax Appellate Tribunal, “C” BENCH, PUNE
Before: SHRI S.S. GODARA & DR. DIPAK P. RIPOTE
आदेश / ORDER
PER S.S. GODARA, JM :
This assessee’s appeal for assessment year 2017-18 arises against the National Faceless Appeal Centre (NFAC), Delhi’s assessment order dated 17-02-2022, framed as per the CIT(DRP-3), Mumbai directions in case No. ITBA/DRP/F/144C(5)/2021-22/1038074471(1), involving proceedings u/s. 144C r.w.s. 144B of the Income Tax Act, 1961; in short “the Act”.
Heard both the parties. Case file perused.
2. The assessee pleads the following substantive grounds in the instant appeal :
“1. That on the facts and circumstances of the case, the order passed by the National Faceless Assessment Centre ('NFAC') and TPO is bad in law and not in accordance with the provisions of the Act to the extent they are prejudicial to the Appellant.
The order of the NFAC is bad in law in that the order is passed not in accordance with the Faceless Assessment Scheme, 2019.
3. The Ld. TPO has erred in not complying with the provisions of section 92CA(3) read with section 92C(3) of the Income-tax Act, 1961 while computing the arm's length price.
4. The order of the Ld. TPO is bad in law that the reference made to the Ld. TPO by the Ld. AO is not in accordance with the Instruction No.3 of 2016.
5. The Ld. TPO has erred in undertaking a transfer pricing adjustment of Rs1,39,90,834/- by erroneously considering that the activities of the Appellant in relation to the Gensets Segment is closely linked with the business support services activity of the Engines Segment.
6. The Ld. TPO has erred in undertaking a transfer pricing adjustment of Rs1,39,90,834/- by erroneously considering the Appellant's entity- wide margins without considering that the activities of the Appellant in relation to the Gensets Segment is distinct from that of the business support services activity of the Engines Segment with distinct functional, asset and risk profile.
7. The Hon. DRP has erred in affirming the order of the Ld. TPO by wrongly considering the nature of the prototype development cost of Rs.75,28,417/- and hence, wrongly holding that the allocation of this cost item to the Engines Segment raises doubts over the Appellant's submissions and the correctness of the segmental financial workings considered by the Appellant.
8. Without prejudice to the above grounds, the Hon. DRP has erred in arriving at its findings, particularly in para 2.4.4.4, without providing the Appellant the opportunity of being heard with respect to the prototype development costs incurred by the Appellant.
9. The NF AC erred in considering the transfer pricing adjustment of Rs.1,39,90,834/- twice in computing the taxable income of the Appellant for A Y 2017 -18.
10. The NF AC erred in not setting off brought forward business losses of the Appellant against the current year income determined pursuant to the transfer pricing adjustment.
11. The NFAC erred in computing that the Appellant is liable to pay tax of Rs70,99,481/-.
12. The NF AC erred in computing interest under sections 234B and 234D of the Act at Rs.26,15,942/- and Rs.9,301/- respectively.”
We further note the assessee has also sought to raise an additional ground vide its petition dated 23-05-2022 that the learned lower authorities have erred in law and in facts in holding that it’s “Gensets Segment” constitutes as an international transaction u/s. 92B r.w.s. 92F(v) of the Act read with Rule 10A(d) of the Income-Tax Rules, 1962. The same is admittedly since already forming the issue herein in the forgoing main grounds. We thus admit the assessee’s foregoing additional ground as well.
Learned counsel does not press the assessee’s first and foremost substantive ground. He further states that grounds Nos. 9 to 12 are consequential in nature. Rejected accordingly.
The assessee’s sole substantive grievance challenging the correctness of the learned lower authorities making transfer pricing adjustment of Rs. 1,39,90,834/- after aggregating the alleged separate segments of “business support services” as well as “Gensets” in dispute. We thus, advert to the basic relevant facts.
The assessee company is engaged in the business of internal combustion engine technologies. It filed its return on 30-11-2017 declaring Nil income. The same stood summarily processed on 17-05- 2018. The Assessing Officer took up scrutiny thereafter and made section 92CA(1) reference to the Transfer Pricing Officer “TPO” to determine arm’s length price of assessee’s business forgoing support services segment. The assessee had executed international transactions of Rs.2,94,14,088/- with M/s. Pinnacle US i.e. the overseas associated enterprises (AE) which had been benchmarked after adopting the transaction net margin method “TNMM”. The assessee had calculated segmental PLI @ 8.35% in the relevant TP study report. The TPO issued his show cause notice dated 22- 12-2020 seeking to aggregate both the foregoing segments i.e. internal combustion engines “ICE” and genset business so far as this taxpayer’s business support services are concerned. We note from the TPO’s order dated 19-12-2019 that he inter alia observed that the assessee had been getting its technical support from the foregoing “AE” and there was no separate documentary evidence indicating carrying out any independent entrepreneurship activity at all. He took note of page 2 of Annexure 3 in assessee’s TP study report stating that M/s. Pinnacle India have been providing business support, logistic support and vendor development support to the “AE” and concluded that both the afforested Internal Combustion Engines as well as Genset business segment were inextricably linked and therefore, they deserved to be aggregated only. He arrived at the impugned adjustment in light thereof coming to Rs.1,39,90,834/-.
The Assessing Officer passed his draft assessment in tune with the TPO computation on 22-03-2021. The assessee preferred objections. The DRP’s discussed dated 23-12-2021 had rejected its arguments as follows :
“2.4.4 Action of the TPO in considering the gensets segment as closely linked to the business support services activities of the engines segment : 2.4.4.1 As stated above, for the purpose of benchmarking the transaction relating to provision of Business Support Services to its AE, the assessee had considered its activities under Gensets segment and ICE segment as separate activities and considered only the PLI of the ICE segment. However, the TPO was of the view that both the segments are inextricably linked and, therefore, the entity level PLI should be considered while benchmarking the transaction. 2.4.4.2 The TPO has discussed the issue in his order, as under: "In this regard, it is pertinent to mention that the technology is being given to assessee by AE himself There is no separate documentary evidence available with the assessee indicating that assessee is engaged in carrying out entrepreneur activity for genset business. Assessee vide its submission dated 10th January, 2021 stated that the assessee had approved allotment of CCD to an investor. However, it does not give any clarity that assessee has independent entrepreneur activity. There is not mentioned in the agreement that assessee is carrying out independent activities for genset business. Further, Reference is is made to page no 2 of Annexure 3 of TPSR wherein it is mentioned that Pinnacle India provided BSS to Pinnacle US through its BSS segment consisting of logistic support to business travelers from Pinnacle US travelling to India, performing vendor development activity and performing market support services. Further, The relevant para for Page 10 of TPSR are as under: "Pinnacle India's BSS segment is engaged in providing the following BSS to Pinnacle US in relation to Pinnacle US's business prospects/developments in automobile/internal combustion engine business Logistical Support- Providing logistical support to business travelers from Pinnacle US travelling to India. Vendor Development Sourcing - Performing vendor development activities in India to identify vendors for sourcing of components for the projected manufacture of engines utilizing Pinnacle US proprietary internal combustion engine technology. Marketing Support [1] Providing marketing support services to scout new customers for Pinnacle US' proprietary internal combustion engine technology; and Performing marketing activities for developing new business opportunities in non [1] automobile products with OEMs. Further, summary of functions performed, asset employed, and risk assumed by the company with respect to two business activities are provided below: Functions Engine Business Gensets Business Pinnacle Pinnacle US Pinnacle Pinnacle US India India Prototype - - - x development and design Vendor - (non-India - x development market) Identifying - (non-India - x partners market) Marketing - - - - support Market - (non-India - x research market) Technology x - x - development Contracting x - In progress x sales
It does not transpire from FAR analysis how AE of assessee is providing technology without charging cost for the service. In view of the above, it is evident that the two segment i.e. Genset segment and Internal Combustion Engines (ICE) segment are inextricably linked. " 2.4.4.3 We have considered the facts of the case, order of the TPO and the submissions of the assessee. The assessee contends that in its ICE segment, the company provides business support services ('8SS') with respect to Engines Segment to Pinnacle US at a cost-plus mark- up of 15% and in the Gensets segment, it carries out the activity of development of prototype genset for sale in the Indian market. The assessee also claims that it has maintained separate segmental data with respect to the two different business activities and the same has been reported in the audited financial statements of the Company. The assessee has also contended that it has not commenced the manufacturing activity so far in its Gensets segment and it is in the process of developing a prototype genset and that it is incurring expenditure such as genset market and environment studies, feasibility studies, research activities for which no revenue is being generated by the Assessee. In its submissions made before this Panel, the assessee has tabulated the details of various functions performed by it and its AE, Pinnacle US, under the Engine Segment and Gensets Segment, as under: Functions Engines Segment Gensets Segment Pinnacle Pinnacle US Pinnacle Pinnacle US India India Prototype x √√ √√ x development and design Vendor √ √(non-India √√ x development market) Identifying √ √(non-India √√ x partners market) Marketing √√ x x support Market √√ √√(non- √√ x research India market) Technology x √√ - x development Contracting x √√ √√ x sales 2.4.4.4 Before the TPO as well as before this Panel, the assessee has submitted that it does not undertake prototype development and design under in its Engines (ICE) segment. However, it is seen that during the year under consideration, the assessee has debited total expenditure of Rs.75,28,417/- towards 'Prototype component development cost', and in the audited Segmental Profit & Loss Accounts, the entire expenditure has been allocated to the ICE segment. The assessee has not explained as to how the expenditure on prototype component development was incurred when as per assessee's own admission, during the year under consideration, it was only in the process of developing a prototype genset. There is also no explanation as to why the expenditure is allocated to the ICE segment, when as per assessee's own admission, no activity relating to prototype development and design is carried out by it in the ICE segment. Since the assessee has contended that the prototype engine was under development as of 31/03/2017, in all probability, the expenditure relates to such activity. In that case also, the expenditure should not have been allocated to the ICE segment. This raises doubts about the reliability of the segmental profitability of the assessee. It may be noted here that once this item is found to be wrongly allocated to the ICE segment, the entire allocation of expenses becomes questionable. In our view, the contentions of the assessee against rejection of its benchmarking analysis by the TPO and fresh benchmarking carried out by the TPO adopting entity level PLI are liable to be rejected on this ground alone.
2.4.4.5 The assessee has made much of the fact that the benchmarking analysis carried out by it is based on the audited Segmental Profit & Loss Accounts. However, as stated above, the allocation of prototype component development cost to the ICE segment made in the audited Segmental Profit & Loss Accounts does not match with the contentions raised by the assessee regarding the activities carried on by it under the two segments. In the absence of any satisfactory explanation for this mismatch in the allocation of expenses in the audited Segmental Profit & Loss Accounts and in the contentions raised by the assessee, in our view, the segmental profitability cannot be relied upon for the purpose of deciding the activities carried on by the assessee in its two segments. Merely because the segmental accounts have been audited, it does not absolve of the assessee from answering any specific queries raised with regard to the segmental profitability and from substantiating the segmental PLI computed by it. 2.4.4.6 The assessee has also contended that the inter-company agreement for services is only for the Engine segment. However, it has to be noted here that the agreement in question has been entered into between two related parties, and, hence, it is easy for the parties to incorporate any recitals in the agreement, which would suit them. In our view, in related party transactions, merely the recitals in the agreement entered into between the parties cannot be given full credence, unless other facts and circumstances support such recitals. This view is supported by the decision of Hon'ble Supreme Court in the case of GIT, West Bengal-II vs. Durga Prasad More (82 ITR 540), wherein the Hon'ble Apex Court has held as under: 11. Now we shall proceed to examine the validity of those grounds that appealed to the learned judges. It is true that an apparent must be considered real until it is shown that there are reasons to believe that the apparent is not the real. In a case of the present kind a party who relies on a recital in a deed has to establish the truth of those recitals otherwise it will be very easy to make self-serving statements in documents either executed or taken by a party and rely on those recitals. If all that an assessee who wants to evade tax is to have some recitals made in a document either executed by him or executed in his favour then the door will be left wide open to evade tax. A little probing was sufficient in the present case to show that the apparent was not the real. The taxing authorities were not required to put on blinkers while looking at the documents produced before them. They were entitled to look into the surrounding circumstances to find out the reality of the recitals made in those documents.
12. Now coming to the question of onus, the law does not prescribe any quantitative test to find out whether the onus in a particular case has been discharged or not. It all depends on the facts and circumstances of each case. In some cases, the onus may be heavy whereas in others, it may be nominal. There is nothing rigid about it. Herein the assessee was receiving some income. He says that it is not his income but his wife's income. His wife is supposed to have had two lakhs of rupees neither deposited in banks nor advanced to others but safely kept in father's safe. Assessee is unable to say from what source she built up that amount. Two lakhs before the year 1940 was undoubtedly a big sum It was said that the said amount was just left in the hands of the father-in-law of the assessee. The Tribunal disbelieved the story, which is prima facie a fantastic story. It is a story that does not accord with human probabilities. It is strange that the High Court found fault with the Tribunal for not swallowing that story. If that story is found to unbelievable, as the Tribunal has found, and in our opinion rightly, then the position remains that the consideration for the sale proceeded from the assessee and therefore it must be assumed to be his money.
It is surprising that the High Court has found fault with the Income-tax Officer for not examining the wife and the father-in-law of the assessee for proving the Department's case. All that we can say is that the High Court has ignored the facts of life. It is unfortunate that the High Court has taken a superficial view of the onus that lay on the Department.
It is true that neither the principle of res judicate nor the rule of estoppel is applicable to assessment proceedings. But the fact that the assessee included the income of the premises in his returns for several years, that after objecting, to the inclusion of that income in his total income in the assessment year 1942-43, in the absence of any satisfactory explanation, is undoubtedly a circumstance which the taxing authorities were entitled to take into consideration. (emphasis supplied). In the present case, the agreement is executed by the assessee with its AE. Therefore, it is all the more important that the recitals, figures, etc. mentioned therein should be supported by other facts and figures if recitals in such document are to be accepted as conclusive evidence for the impugned international transaction to be at arm's length, then, as observed by the Hon'ble Supreme Court in the above- mentioned case, it would be easy for any eligible assessee to make self-serving statements in similar documents and rely on those recitals. Consequently, it may lead to profit shifting, which was intended to be prevented by the Legislature by bringing in the new Sections 92 to 92F of the Act. The facts and circumstances discussed above raise doubts about the assessee's claim. Therefore, no credence can be given to the recitals regarding the transaction of provision of SSS relating to only the ICE segment. 2.4.4.7 With regard to the issue of adoption of entity level margin of the assessee by the TPO for the purpose of benchmarking the transactions in question, the assessee has contended before this Panel that its Gensets segment and ICE segment cannot be clubbed, as one is export segment and the other segment is purely domestic segment. It is true that as per clause (e) of Rule 108(1) of the Rules, which deals with the TNMM, the net profit margin realized by the enterprise (the assessee) from an international transaction entered into with an associated enterprise is to be compared. However, for this purpose, the net profit margin realized by the assessee from the international transaction should be computed properly. As discussed in detail herein above, the entire prototype component development cost has been allocated to the ICE segment, whereas as per assessee's own admission, under this segment, no activity relating to prototype development and design is undertaken by it. Further, such activity is undertaken by the assessee under the Gensets segment. The assessee has also not offered any explanation in this regard. Once this item is found to be allocated wrongly to the ICE segment, then allocation of other expenses to the Gensets expenses also becomes questionable. Consequently, the segmental profitability itself becomes unreliable. The assessee is expected not only to compute the correct net profit margin realized by it from the international transaction but also to substantiate such computation. In the instant case, the assessee has failed to do so. 2.4.4.8 It is true that ideally, arm's length principle should be applied on a 'transaction-by-transaction basis. However, when reliable and sufficient data
at transaction or segment level is not available, there is no bar in applying the principles at entity level. The assessee has not been able to substantiate the PLI worked out by it in the segmental profitability. Therefore, sufficient and reliable data is not available in its case for benchmarking the transactions in question at transactional level. The Hon'ble Kolkata Tribunal, in the case of DCIT vs. EPCOS Ferrites Ltd [2019]102 taxmann.com 422 (Kolkata - Trib.) had accepted the application of the TNMM at the entity level in relation to the international transactions of import of raw materials, import of tools and capital equipment payment for service charge for it services, sales support, marketing and advertisement and sorting services, export of tools, export of finished goods and payment of royalty for technical know- how. In case of Cummins India Ltd vs. Addl. CIT [2015J 53 taxmann.com 53 (Pune - Trib.), the Hon'ble Pune Tribunal has accepted application of the TNMM at the entity level in relation to (a) import of components' and spares of IC engines, (b) export of components and spares of IC engines, (c) receipt of services such as access to customised part catalogue, international site licence etc., (d) receipt of IT support service, (e) payment of training fees, (f) rendering of service (warranty claims lodged with associated enterprises) and (g) provision of technical services. Similarly, in the case of DCIT VS. Tetra Park India (P) Ltd [2017J 86 taxmann.com 257 (Pune - Trib.) also, the Hon'ble Tribunal accepted application of the TNMM at the entity level in relation to (a) import of raw materials, spares and components, processing/distribution equipment and filling machines, (b) import of filling machines, processing equipments, spare parts etc. for resale, (c) import of capital goods, (d) export of finished goods and processing equipment, (e) sale of fixed assets, (f) technical service, design service and services in the nature of education & training etc. received by Tetra Park India, (g) commission received, (h) reimbursement of expenses to associated enterprises and (10) reimbursement of expenses from associated enterprises. In a recent decision dated 10107/2020 in the case of DCIT, Cir-11 (1), Kolkata vs, MIS. Epcos India Pvt. Ltd. (ITA No.1783/Kol/2017) also, the Hon'ble IT AT, Kolkata, has accepted benchmarking of various transactions using TNMM at entity level. 2.4.4.9 In view of the facts and circumstances discussed above, we uphold the action of the TPO in benchmarking the transaction in question adopting the entity level PLI of the assessee and reject the contentions of the assessee in this regard. 2.5 In view of the discussion in the foregoing paragraphs, Grounds of Objection No.1, 2 and 5 raised by the assessee are rejected.”
It is in this factual backdrop that the learned counsel vehemently argued that the impugned order faceless assessment itself is invalid since violating the relevant conditions introduced in Faceless Assessment Scheme, 2019. He further placed on record the corresponding notification to this effect dated 13-08-2020 thereby placing reliance on the relevant stipulation in para 5, Clause (xvi)(b) that “the National e-assessment Centre shall examine the draft assessment order and to provide an opportunity in case of modification”. Learned counsel argues that the assessee had not been provided any opportunity as per foregoing mandatory conditions. We see no merit in the assessee’s instant arguments since the assessment herein has been framed as per the draft assessment without involving any modification at all. No addition has been made over and above that in draft assessment in other words. We thus accept the Revenue’s arguments supporting the validity of impugned assessment.
Learned counsel’s second argument is that the TPO herein had wrongly rejected the assessee’s TP study report without specifically quoting the necessary conditions in section 92CA(3) r.w.s. 92C(3) of the Act. We find no substance in the assessee’s instant arguments as the TPO appears to have acted u/s. 92CA(2) only once the assessee had not included its alleged “genset business” as part of “Business Support Services” segment and therefore, the same came to be covered under “any other international transactions” only not requiring any specific application of section 92CA(3) r.w.s. 92C(3) of the Act.
Learned counsel further invited our attention to the assessee’s 5th to 8th substantive grounds as well as additional ground (supra) that its “genset business” is a separate international transaction which could not have been included in “internal combustion engine (“ICE”) segment in issue. He also seeks to admit the assessee’s additional evidence as per its petition dated 11-05-2022 containing summary of prototype development costs regarding Genset Technology incurred in F.Y. 2016-17 with documentary evidence along with other similar details from F.Y. 2011-12 to F.Y. 2021-22. All these assessee’s pleadings as well as the foregoing documentary evidence fail to evoke due consciences. We note first of all that pages 92 to 148 in assessee’s paper book contains its TP study report wherein it has itself declared the “company overview” as follows :
“Pinnacle India located in Pune, was incorporated in India as a private company on 28 February 2011. Pinnacle India is a wholly-owned subsidiary of Pinnacle US. During FY 2016-17, Pinnacle India had two operational segments – a business support segment engaged in providing business support services to Pinnacle US and a Genset segment engaged in developing genset applications using Pinnacle US proprietary internal combustion technology.”
Learned counsel at this stage submitted that the assessee had wrongly incorporated to have been engaged in developing genset application using Pinnacle US proprietary internal combustion technology. He also highlighted the assessee’s additional evidence. We find no reason to accept the assessee’s arguments once it has come on record that the genset business is very much in tune with its company profile. We further deem it proper to fact that we are dealing with TNMM (supra) wherein it is not the product itself but broader similarity only which applies in order to determine the arm’s length price of any international transaction. We observe that in this factual backdrop that both the assessee’s internal combustion engine as well genset development fall in the same segment only and therefore, learned lower authorities have rightly aggregated the same for making the impugned adjustment.
Learned counsel further invited our attention to the assessee’s detailed case laws paper book running into 368 pages wherein various judicial forum have decided the issue of aggregation of transactions under Rule 10A(d) of the Income Tax Rules. We find that the same admittedly goes against the assessee’s company profile which has itself made it clear to have been getting technical support of Pinnacle US (supra). We this reject the assessee’s instant remaining substantive grounds as well.
13. This assessee’s appeal is dismissed.
Order pronounced in the open court on 18th October, 2022.
Sd/- Sd/- (Dr. Dipak P. Ripote) (S.S. Godara) JUDICIAL MEMBER ACCOUNTANT MEMBER पुणे / Pune; दिनाांक / Dated : 18th October, 2022. रदव आदेश की प्रधिधलधप अग्रेधर्ि / Copy of the Order forwarded to : अपीलार्थी / The Appellant. 1. प्रत्यर्थी / The Respondent. 2. 3. The CIT(A), NFAC, Delhi. 4. The CIT concerned. दवभागीय प्रदतदनदि, आयकर अपीलीय अदिकरण, “सी” बेंच, 5. पुणे / DR, ITAT, “C” Bench, Pune. गार्ड फ़ाइल / Guard File. 6. //सत्यादपत प्रदत// True Copy// आिेशानुसार / BY ORDER,
वररष्ठ दनजी सदचव / Sr. Private Secretary आयकर अपीलीय अदिकरण ,पुणे / ITAT, Pune