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Income Tax Appellate Tribunal, ‘B’ BENCH : BANGALORE
Before: SHRI. CHANDRA POOJARI & SMT. BEENA PILLAI
Page 2 of 16 IT(TP)A 614 & 615/Bang/2016 IT(TP)A 650/Bang/2016, IT(TP)A 442/Bang/16 & CO 97/Bang/17 A. Y : 2011 – 12 ORDER PER BEENA PILLAI, JUDICIAL MEMBER These are cross appeals and cross objection filed by assessee and revenue in respective assessee against separate order passed by Ld. ACIT Circle – 3(1) (1), Bangalore, for assessment year 2011 – 12 on following grounds of appeal: IT(TP)A 442/Bang/2016 (A’s Appeal)
Page 3 of 16 IT(TP)A 614 & 615/Bang/2016 IT(TP)A 650/Bang/2016, IT(TP)A 442/Bang/16 & CO 97/Bang/17 A. Y : 2011 – 12 Page 4 of 16 IT(TP)A 614 & 615/Bang/2016 IT(TP)A 650/Bang/2016, IT(TP)A 442/Bang/16 & CO 97/Bang/17 A. Y : 2011 – 12 IT(TP)A 614/Bang/2016 (Dept. Appeal)
CO 97/Bang/2017 (A’s Appeal)
Page 5 of 16 IT(TP)A 614 & 615/Bang/2016 IT(TP)A 650/Bang/2016, IT(TP)A 442/Bang/16 & CO 97/Bang/17 A. Y : 2011 – 12 IT(TP)A 615/Bang/2016 (Dept. Appeal)
IT(TP)A 650/Bang/2016 (A’s Appeal)
Page 6 of 16 IT(TP)A 614 & 615/Bang/2016 IT(TP)A 650/Bang/2016, IT(TP)A 442/Bang/16 & CO 97/Bang/17 A. Y : 2011 – 12 M/s. Ingersoll Rand International (I) Pvt Ltd., Brief facts of the case are as under: 2. Assessee is a company and filed its return of income declaring loss of Rs.19,92,85,232/- on 13/11/11. The same was processed under section 143(1) of the Act. Subsequently, case was selected for scrutiny and notice under section 143(2) was served on assessee. In response to statutory notices, representative of Page 7 of 16 IT(TP)A 614 & 615/Bang/2016 IT(TP)A 650/Bang/2016, IT(TP)A 442/Bang/16 & CO 97/Bang/17 A. Y : 2011 – 12 assessee appeared before Ld.AO and filed requisite details as called for. 2.1. During assessment proceedings, it was observed that assessee had international transactions with its associated enterprises exceeding Rs.15 crores and therefore reference to transfer pricing officer was made Ld. TPO upon receipt of reference determined arm’s length adjustment at Rs.5,55,53,912/-. Thereafter Ld.AO while passing draft assessment order proposed following addition: depreciation on patents disallowed Rs.2,58,366/- expenditure on computer software disallowed Rs.46,46,027/- provision for slow moving inventory and provisions for warranty disallowed Rs.93,17,250/- Against proposed additions, on transfer pricing and corporate tax issues, assessee preferred objections before DRP. 2.2. DRP upheld objections of assessee transfer pricing issues in respect of M/s. Acropetal Technologies and objections is regarding other comparables, challenged for exclusion was dismissed. DRP refused adjustment on account of risk. Regarding corporate tax issues, and following additions were upheld by observing as under: Software expenses amounting to Rs. 46, 46, 027/- 2.3. As regards corporate tax issues disallowances made by Ld. AO was upheld in respect of software expenditure of Rs.39,09,580/- and treating the same as capital in nature. However, DRP granted depreciation on the same amounting to Rs.19,78,025/-, resulting in net disallowance of Rs.19,31,554/-.
Page 8 of 16 IT(TP)A 614 & 615/Bang/2016 IT(TP)A 650/Bang/2016, IT(TP)A 442/Bang/16 & CO 97/Bang/17 A. Y : 2011 – 12 With respect to balance Rs.27,14,473/- being nature of provision, DRP upheld disallowance on the basis that such amount was only a provision and not actual expenses. Provision for warranty of Rs.11,14,118/- 2.4. DRP upheld observations of Ld.AO that, provision of warranty was created on ad hoc basis and held that the same is not created on scientific basis. DRP was also of opinion that assessee is making fresh claim in relation to reversal of provision of warranty. 2.5. Ld. DRP however directed Ld. AO to provide depreciation on software expenses disallowed in A.Y: 2010 – 11.
Upon receipt of DRP directions, assessing officer passed consequential order, and Ld.AO made addition in the hands of assessee respect of corporate tax issues only, thereby reducing assessed loss at Rs.19,32,66,721/-.
Against final assessment order passed by Ld. AO, assessee and revenue filed cross appeals. Against appeal filed by revenue on transfer pricing, issues assessee filed cross objection challenging comparables, not excluded by DRP for various reasons, filters applied by Ld.TPO that was not considered by DRP of functional dissimilarities, non-application of certain and not granting appropriate adjustment on account of risk.
At the outset, Ld. AR as well as Ld. CIT DR submitted that all the above issues need to be revisited by Ld. AO/TPO, as there are apparent irregularities in the orders of authorities below as under:
Page 9 of 16 IT(TP)A 614 & 615/Bang/2016 IT(TP)A 650/Bang/2016, IT(TP)A 442/Bang/16 & CO 97/Bang/17 A. Y : 2011 – 12 * Ld. AR submitted that, Ld. AO failed to follow directions of DRP in respect of granting depreciation allowance on software expenses disallowed in A. Y : 2010 – 11. * Ld. CIT DR submitted that DRP has applied on-site revenue filter only in respect of Acropetal Technologies, for excluding it from finalist. He submitted that DRP cannot pick and choose filters and apply it on certain comparables. Further he also submitted that this filter was not applied by Ld. TPO at all. * Ld. AR submitted that DRP upheld inclusion of certain comparables that were having different business model as compared to that of assessee and were also functionally different.
We have perused submissions advanced by both sides in light of records placed before us. On transfer pricing issues, raised by revenue and assessee in cross appeals, it is observed that authorities below have cherry picked on using filters without understanding business model of assessee. It is observed that DRP applied on-site revenue filter suo moto, without being considered by Ld.TPO. Under such circumstances, we are of the opinion that transfer pricing adjustment made by Ld. AO/TPO needs to be re-looked in accordance with law. It is observed that Ld. AO while passing final assessment order in computation of assessed income has not considered transfer pricing adjustment that has been made in para 3 of assessment order. This shows a sheer negligence on behalf of Ld. AO and non-application of mind.
Page 10 of 16 IT(TP)A 614 & 615/Bang/2016 IT(TP)A 650/Bang/2016, IT(TP)A 442/Bang/16 & CO 97/Bang/17 A. Y : 2011 – 12 We therefore set aside, transfer pricing issues, raised by assessee as well as revenue in cross objection and appeals, respectively for considering it afresh. Accordingly, appeal filed by revenue and cross objection filed by assessee stands allowed for statistical purposes. Assessee’s Appeal: 7. In the appeal filed by assessee, issues alleged are in respect of corporate tax grounds. Ld. AR do not wish to press Ground No.1- 4 & 6 as being general in nature.
He submitted that the only issue that needs to be adjudicated is Ground No. 5 in respect of provision for warranty disallowed in earlier year and offered to tax which has been sought as relief on reversal/utilisation during the year amounting to Rs.35,69,647/-. In support of the same, assessment order in respect of preceding assessment years has been filed to substantiate the claim of assessee. Ld. AR requested for the issue to be set-aside to Ld. AO to consider it in light of decision of Hon’ble Supreme Court in Rotork Controls India (P) Ltd., vs CIT reported in (2009) 180 Taxmn 422 and decision of Hon’ble Delhi High Court in case of CIT vs Goetz India Ltd., reported in (2010) 8 taxmann.com 303.
At the outset, Ld. AR submitted that in case of M/s. Ingersoll Rand (India) Pvt. Ltd., DRP agreed with assessee’s contentions and had directed Ld. AO to provision only if the conditions laid down in decision of Hon’ble Supreme Court stands satisfied.
Ld. CIT DR do not have any objection in setting aside this issue back to Ld. AO for verification.
Page 11 of 16 IT(TP)A 614 & 615/Bang/2016 IT(TP)A 650/Bang/2016, IT(TP)A 442/Bang/16 & CO 97/Bang/17 A. Y : 2011 – 12 11. On the basis of above submissions by both sides, we direct Ld. AO to verify the claim of assessee in the light of decision by Hon’ble Supreme Court in case of Rotork Controls India (P) Ltd., vs CIT (supra) and Hon’ble Delhi High Court in case of CIT vs Goetz India Ltd., (supra). Accordingly, this ground raised by assessee stands partly allowed for statistical purposes. Ground No. 7 to 12 are in respect of software expenses disallowed contending it to be capital in nature and depreciation not granted by Ld. AO despite directions by DRP.
12. Both sides submitted that these issues have been addressed by authorities below in a cryptic manner without considering method of accounting followed by assessee. Under such circumstances, we are of opinion that, this issue needs to be reviewed by Ld. AO/TPO on the basis of consistent approach followed by assessee. Accordingly, these grounds raised by assessee stands allowed for statistical purposes. In the result appeal filed by revenue appeal and cross objection filed by assessee stands allowed for statistical purposes. M/s. Ingersoll Rand (India) Ltd ., Brief facts of the case are as under:
13. Assessee filed its return of income on 28/09/09 which was revised on 27/03/13 declaring total income of Rs.102,29,34,666/- . Return was processed under section 143 (1) and subsequently selected for scrutiny. Accordingly, notice under section 143 (2)
Page 12 of 16 IT(TP)A 614 & 615/Bang/2016 IT(TP)A 650/Bang/2016, IT(TP)A 442/Bang/16 & CO 97/Bang/17 A. Y : 2011 – 12 along with questionnaire was issued to assessee. In response to statutory notices, representatives of assessee appeared before Ld. AO and filed requisite details as called for.
Ld.AO observed that assessee had international transactions with its associated enterprises exceeding Rs. 15 crores and therefore reference to transfer pricing officer was made Ld. TPO upon receipt of reference determined arm’s length adjustment at Rs.7,38,07,223/-. Thereafter Ld.AO while passing draft assessment order proposed following addition: provision for warranty on account of replacement of spare and accessories and slow-moving inventory is disallowed Rs.5,52,52,583/- provision for doubtful debts disallowed Rs.1,42,41,195/- management fees disallowed under section 40 (A) Rs.9,00,50,109/- reimbursement of expenses disallowed Rs.1,62,42,886/- 15. Further Ld.AO initiated penalty under section 271C for failure to deduct TDS on Rs.9,00,50,109/-. Against proposed additions, on transfer pricing and corporate tax issues, assessee preferred objections before DRP.
DRP directed Ld. AO to delete proposed addition of Rs.3,68,32,834/- on account of provision for warranty and Rs.1,84,19,749/- in respect of provision for slow moving inventory by directing Ld.AO to verify claim in terms of conditions laid down by Hon’ble Supreme Court in case of Rotork Controls India (P) Ltd., vs CIT (supra).
Page 13 of 16 IT(TP)A 614 & 615/Bang/2016 IT(TP)A 650/Bang/2016, IT(TP)A 442/Bang/16 & CO 97/Bang/17 A. Y : 2011 – 12 17. DRP upheld observations of Ld. TPO regarding additions made on account of management fees and reimbursement of expenses. However, directed to Ld. AO to disallow only such sum as was debited to profit and loss account under the respective heads. Upon receipt of DRP directions, Ld. AO passed order making addition in the hands of assessee amounting to Rs.110,33,69,538/- Aggrieved by order of Ld.AO, assessee as well as revenue are in appeal before us now. At the outset the Ld. AR submitted that Ground No. 1 – 5 in assessee’s appeal is not pressed. Accordingly, these grounds are dismissed as not pressed.
It has been submitted that, only ground that needs to be adjudicated is Grounds 6 – 13 alleged by assessee in its appeal regarding disallowance of management fees, and disallowance of reimbursement of expenses.
Ld. AR submitted that Ld.AO treated services rendered by AE to assessee to be technical services for included services in terms of India US-DTAA. It has been submitted by Ld. AR that Ld. TPO considered these to be international transactions on which arm’s length price has been determined. Under such circumstances, Ld.AR argued that, again the same expenses cannot be subjected to tax under normal provisions of the Act, as it amounts to double taxation.
Ld. CIT DR supported the argument advanced by Ld. AO and suggested the issue to be sent back to Ld. AO/TPO for reconsideration.
Page 14 of 16 IT(TP)A 614 & 615/Bang/2016 IT(TP)A 650/Bang/2016, IT(TP)A 442/Bang/16 & CO 97/Bang/17 A. Y : 2011 – 12 We have perused submissions advanced by both sides in light of records placed before us.
It is observed that in transfer pricing additions, Ld. TPO considered these expenses to be international transaction, and computed arm’s length price of these transactions. Under such circumstances, we do not find any reason why Ld.AO again disallowed these expenses. However, we set aside this issue too Ld. AO/TPO to verify the same, and consider the issue in hand in accordance with law. Accordingly, these grounds raised
by assessee stands allowed for statistical purposes. Ground No. 14-19 needs to be verified by Ld. AO on the basis of records and any other document at as he may deem fit and proper. Accordingly, these grounds raised by assessee stands allowed for statistical purposes. In the result appeal filed by assessee stands allowed for statistical purposes. Revenue’s appeal
22. Only issue raised by revenue in their appeal is regarding addition deleted by Ld. AO pertaining to provision for warranty. At the outset, it is observed that DRP directed Ld. AO to consider claim of assessee in accordance with conditions specified by Hon’ble Supreme Court in case of Rotork Controls India (P) Ltd., vs CIT (supra). We do not find any infirmity in these directions. As we have set aside identical issue in case of M/s. Ingersoll International (India) Pvt Ltd., in paragraphs hereinabove to Ld. AO for due verification of the claim of assessee, we deem it proper to Page 15 of 16 IT(TP)A 614 & 615/Bang/2016 IT(TP)A 650/Bang/2016, IT(TP)A 442/Bang/16 & CO 97/Bang/17 A. Y : 2011 – 12 set aside this ground once again to Ld. AO with the same direction. Ld. AO is directed to consider claim in accordance with law having regards to documents filed by assessee. Needless to say, that Ld. AO/TPO shall pass detailed order having regards to judicial preceded on all issues in having regards to judicial preceded having regards to judicial preceded on merits. Accordingly, appeal filed by revenue stands allowed for statistical purposes. In the result, appeals filed by assessee as well as revenue and cross objection filed by assessee in case of M/s. Ingersoll International (India) Pvt. Ltd., and M/s. Ingersoll Rand (India) Ltd., for year under consideration stands allowed for statistical purposes. Order pronounced in the open court on 18th February, 2020.