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Income Tax Appellate Tribunal, “D” BENCH, AHMEDABAD
Before: SHRI WASEEM AHMED & SHRI SIDDHARTHA NAUTIYAL
IN THE INCOME TAX APPELLATE TRIBUNAL “D” BENCH, AHMEDABAD BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER & SHRI SIDDHARTHA NAUTIYAL, JUDICIAL MEMBER I.T.A. No. 330/Ahd/2022 (Assessment Year: 2018-19) INEOS STYROLUTION INDIA Vs. DCIT LIMITED, 5th Floor, OHM House- Circle-1(1)(1), II, OHM Business Park, Opposite Vadodara Balaji Hospital, Subhanpura, Vadodara-390023 [PAN No.AAACB6164H] (Appellant) .. (Respondent)
S.P. No. 21/Ahd/2022 (in ITA No. 330/Ahd/2022) (Assessment Year: 2018-19) INEOS STYROLUTION INDIA Vs. DCIT LIMITED, 5th Floor, OHM House- Circle-1(1)(1), II, OHM Business Park, Opposite Vadodara Balaji Hospital, Subhanpura, Vadodara-390023 [PAN No.AAACB6164H] (Appellant) .. (Respondent)
Appellant by : Shri Ajit Kumar Jain, Ms. Sonal Pandey & Shri Darpan Dudharia, A.Rs. Respondent by: Shri Alok Kumar, CIT DR
15.09.2022 Date of Hearing Date of Pronouncement 11.10.2022
O R D E R PER SIDDHARTHA NAUTIYAL - JUDICIAL MEMBER: The assessee has filed Stay Petition and appeal against the order passed by the Ld. CIT(DRP)-2, Mumbai-2 in Order No.
ITA No. 330/Ahd/2022 & S.P. No. 21/Ahd/2022(in ITA No. 330/A/22) INEOS Styrolution India Ltd. vs. DCIT Asst.Year –2018-19 - 2 - ITBA/DRP/F/144C(5)/2022-23/1043443584(1) vide order dated 15.06.2022 passed for Assessment Year 2018-19.
The assessee has taken the following grounds of appeals:-
“Aggrieved by the order u/s. 143(3) r.w.s. 144C(13) of the Income- tax Act, 1961 (‘the Act’) passed by the Deputy Commissioner of Income-tax, Circle-1(1)(1), Vadodara, (‘Assessing Officer’ or ‘Learned AO’), the Appellant wishes to raise the following Grounds of Appeal for the kind adjudication of the Hon'ble ITAT: On the facts and circumstances of the case and in law, the Learned AO / Transfer Pricing Officer (‘TPO’) / Dispute Resolution Panel (‘DRP’) has erred in making following arbitrary, adhoc and inconsistent Transfer Pricing (‘TP’) adjustment of INR 28,70,16,704 in respect of payment for intra-group services availed by the Appellant from Associated Enterprises (‘AEs’) viz. INEOS Styrolution Group GmbH (‘INEOS Germany’) and INEOS Styrolution APAC Pte. Ltd. (‘INEOS Singapore’); and Rendition of Contract Research & Development (‘R&D’) Services to its AE viz. INEOS Germany:
a. Global Head Office (‘GHO’) Charge availed from INEOS Germany : INR 6,97,69,928
b. Regional Head Office (‘RHO’) Charge availed from INEOS Singapore: INR 21,64,01,560
ITA No. 330/Ahd/2022 & S.P. No. 21/Ahd/2022(in ITA No. 330/A/22) INEOS Styrolution India Ltd. vs. DCIT Asst.Year –2018-19 - 3 - c. Rendition of Contract R&D Services to INEOS Germany: INR 8,45,215
Principle of Natural Justice: 2. On the facts and circumstances of the case and in law, the Learned AO / DRP has erred in ignoring the fact that the Learned TPO has issued show cause notice at the fag end of assessment proceedings and has not provided reasonable time to the Appellant to respond to the show cause notice. Thus, based on the principle of natural justice the TP Order is liable to be quashed.
Invalid reference to Transfer Pricing Officer
On the facts and circumstances of the case and in law, the reference made to TPO u/s 92CA(1) of the Act is bad in law as it violates the provisions of that section. Consequently, the draft assessment order and final assessment order are bad in law and deserves to be quashed.
On the facts and circumstances of the case and in law, Assessing Officer (Technical Unit) National e-Assessment Centre has erred in making a reference to TPO u/s 92CA(1) of the Act. Consequently, the draft assessment order and the final assessment order are bad in law and deserves to be quashed.
ITA No. 330/Ahd/2022 & S.P. No. 21/Ahd/2022(in ITA No. 330/A/22) INEOS Styrolution India Ltd. vs. DCIT Asst.Year –2018-19 - 4 - Final Assessment Order barred by limitation and bad in law 5. On the facts and circumstances of the case and in law, the final assessment order is issued beyond the time limit as prescribed u/s 153 of the Act. Consequently, the final assessment order is time barred and deserves to be quashed.
On the facts and circumstances of the case and in law, the National Faceless Assessment Centre (‘NFAC’) has erred in law is issuing the draft assessment order dated September 15, 2021. Consequently, the entire assessment deserves to be quashed.
On the facts and circumstances of the case and in law, the Jurisdictional Assessing Officer has erred in issuing the final assessment order dated July 31, 2022 and the notice of demand u/s 156 of the Act. Consequently, the entire assessment deserves to be quashed.
Intra Group Services: 8. On the facts and circumstances of the case and in law, the learned AO / TPO / DRP has erred in doing the TP adjustment contrary to provisions of section 92CA(3) read with Section 92C(3), thereby disregarding the detailed benchmarking approach and the methodology adopted by
ITA No. 330/Ahd/2022 & S.P. No. 21/Ahd/2022(in ITA No. 330/A/22) INEOS Styrolution India Ltd. vs. DCIT Asst.Year –2018-19 - 5 - the Appellant, in its TP documentation maintained under section 92D of the Income-tax Act, 1961 read with Rule 10D of the Income-tax Rules, 1962 (‘the Rules’).
On the facts and circumstances of the case and in law, the learned AO / TPO / DRP has erred in not stating / disclosing any reasons to show that either of the conditions mentioned in clause (a) to (d) of section 92C(3) of the Act were satisfied before proposing a TP adjustment to the total income of the Appellant.
On the facts and circumstances of the case and in law, the learned AO/TPO/ DRP has erred in making an - adjustment for the part services provided by Group CEO, CFO, Global Financial Controller and Risk Management by concluding that the intra-group services i.e. GHO Services and RHO Services availed by the Appellant are in the nature of shareholder services for which no independent entity would agree to make any payment, thereby ignoring the fact that part of the services pertaining to shareholder activities are already excluded by the AEs while charging the Appellant for GHO Services and RHO Services.
On the facts and circumstances of the case arid in law, the learned AO / TPO / DRP has erred in adopting an arbitrary approach in determining the arm’s length price of the intra
ITA No. 330/Ahd/2022 & S.P. No. 21/Ahd/2022(in ITA No. 330/A/22) INEOS Styrolution India Ltd. vs. DCIT Asst.Year –2018-19 - 6 - group services (except one sub-head under GHO service charges) at NIL for all heads of intra-group services, without providing any cogent reasons and without appreciating the detailed evidence filed by the Appellant to substantiate the provision of such services by the Group, the cost incurred by the Group in rendering such services and the basis on which these costs have been allocated to the Appellant
On the facts and circumstances of the case and in law, the learned AO/TPO /DRP has erred in summarily rejecting the voluminous evidence submitted by the Appellant to justify provision of services and the benefit derived by the Appellant, without disputing / rebutting or without providing an explicit findings / observation on the voluminous / plethora of evidence filed by the Appellant.
On the facts and circumstances of the case and in law, the learned AO / TPO / DRP has erred in exceeding their jurisdiction by incorrectly applying any of the prescribed methods under section 92C of the Act read with rule 10AB / 10B(1) of Rules and thus determining the Arm’s Length Price (‘ALP’) of intra-group services as ‘Nil’. Thus, the order of the Learned TPO / AO / DRP is bad in law and liable to quashed.
ITA No. 330/Ahd/2022 & S.P. No. 21/Ahd/2022(in ITA No. 330/A/22) INEOS Styrolution India Ltd. vs. DCIT Asst.Year –2018-19 - 7 - 14. On the facts and circumstances of the case and in law, the learned AO / TPO / DRP has erred in confirming the action of the AO / TPO in ignoring the fact that there was no intention by the Appellant to shift profits outside India.
On the facts and circumstances of the case and in law, the learned AO / TPO / DRP has erred in ignoring the fact the TDS has been deducted on the income earned by the AEs on account of GHO and RHO services and requisite compliances have been done by the AEs in India.
On the facts and circumstances of the case and in law, the learned AO / TPO / DRP has erred in ignoring Rule of consistency in view of the fact that no adjustment was made by the Learned TPO for same transaction (GHO and RHO services) in the earlier years (except in AY 2017-18).
On the facts and circumstances of the case and in law, the learned AO / TPO / DRP has erred in not adjudicating the following mistakes apparent from records:
a. Adopting the ALP of IT Charges based on the percentage of Capitalized SAP users in India instead of IT enabled users
ITA No. 330/Ahd/2022 & S.P. No. 21/Ahd/2022(in ITA No. 330/A/22) INEOS Styrolution India Ltd. vs. DCIT Asst.Year –2018-19 - 8 - b. Adopting the ALP of Software Charges based on the percentage of Capitalized SAP users in India instead of running SAP users.
c. Applying ‘Other Method’ without bringing on record any comparable uncontrolled transaction as per the provisions of 92C of the Act.
Rendition of Contract R&D Services:
On the facts and circumstances of the case and in law, the learned AO /TPO/ DRP has erred in making an adjustment on Rendition of Contract R&D Services by the Appellant to its AE viz. INEOS Germany.
On the facts and circumstances of the case and in law, the learned AO / TPO / DRP have erred in disregarding the detailed functions, assets and risk analysis (‘FAR’), benchmarking approach and the methodology adopted by the Appellant, in its TP documentation maintained under section 92D of the Act read with Rule 10D of the Rules.
On the facts and circumstances of the case and in law, the learned AO / TPO / DRP have erred in accepting the rate of 29 percent as arm’s length and in not considering margin of 20.73 percent, which is within the arm's length margin of 8.96 percent to 13.19 percent earned by the independent
ITA No. 330/Ahd/2022 & S.P. No. 21/Ahd/2022(in ITA No. 330/A/22) INEOS Styrolution India Ltd. vs. DCIT Asst.Year –2018-19 - 9 - comparable companies engaged in similar business as that of the Appellant.
On the facts and circumstances of the case and in law, the learned AO /TPO / DRP erred in ignoring the rule of consistency, as this transaction was already scrutinised and accepted by the Learned AO / TPO in the earlier years (i.e. AY 2017-18) under the same arrangement (viz. agreement dated 18 November 2013).
Incorrect Computation of Demand 22. On the facts and circumstances of the case and in law, the learned AO has erred in incorrectly computing the demand issued under section 156 of the Act.
On the facts and circumstances of the case and in law, the learned AO has erred in levying interest amounting to INR 5,39,34,868 u/s 234B of the act and interest amounting to INR 30,24,035 u/s 234C of the Act.
Initiation of Penalty proceedings
On the facts and circumstances of the case and in law, the learned AO has erred in initiating the penalty u/s 270A r.w.s. 274of the Act.”
ITA No. 330/Ahd/2022 & S.P. No. 21/Ahd/2022(in ITA No. 330/A/22) INEOS Styrolution India Ltd. vs. DCIT Asst.Year –2018-19 - 10 - 3. Before us, the Ld. Counsel for the assessee agreed that the stay petition may not be pressed since the matter is being heard on priority basis. Accordingly, the stay filed by the assessee is being dismissed as “not pressed”.
On merits Ld. Counsel for the assessee submitted that the issues for consideration during the year are identical as for the immediately preceding Assessment Year 2017-18, wherein on identical set of facts (in respect of payments made to Global Head Office and Regional Head Office), the ITAT in assessee’s own case has held that Ld. Assessing Officer/ DRP has erred in facts and in law in adopting an arbitrary approach in determining the arm’s-length price of the intra group services at “Nil”, without providing any substantive reason and without appreciating the evidence filed by the assessee to substantiate the provision of services by the overseas group entities (GHO and RHO services provided by the overseas offices). The counsel for the assessee submitted that the grounds of appeal/additions made during the impugned assessment year primarily relate to payment made towards services availed from global head office and regional head office amounting to Rs. 6,97,69,928/- and Rs. 21,64,01,560/- in respect of which relief has been granted to the assessee in the immediately previous year by ITAT. In addition to the above, there is another addition / adjustment in respect of rendering of contract R&D services to Ineos Germany amounting to Rs. 8,45,215/- which needs to be adjudicated upon on merits.
ITA No. 330/Ahd/2022 & S.P. No. 21/Ahd/2022(in ITA No. 330/A/22) INEOS Styrolution India Ltd. vs. DCIT Asst.Year –2018-19 - 11 - 5. Before adjudicating on the addition in respect of addition of contract R&D services to Ineos Germany, we shall first decide on the addition/adjustment made in respect of Global Head Office services (Rs. 6,97,69,928/-) and Regional Head Office services (Rs. 21,64,01,560/-). We observe that in the immediately preceding year, ITAT, Ahmedabad in the assessee’s own case (Ineos Styrolution India Ltd v. DCIT, TP-I, Ahmedabad in ITA No. 58 /Ahd/2022) had provided relief in respect of global head office services and regional head office services with the following observations:
“9. We have heard the rival contentions and perused the material on record. We shall divide our conclusion in two parts- firstly, whether factually it can be concluded that the assessee has availed India related services from its global/ regional headquarters. In our considered view, the Ld. TPO has taken a rather restrictive view while coming to the conclusion that no India related services have been rendered in the instant set of facts. The Ld. Counsel for the assessee took us through various e- mails exchanged between the assessee and its overseas offices. The services received in the form of e-mails have been classified under various heads viz. Treasury functions, Controlling functions, Information Technology, Finance support, Information Technology support, CFO functions etc. On perusal of the Summarized Chart furnished to us (along-with copies of emails), we observe that India specific support has been provided via GHO
ITA No. 330/Ahd/2022 & S.P. No. 21/Ahd/2022(in ITA No. 330/A/22) INEOS Styrolution India Ltd. vs. DCIT Asst.Year –2018-19 - 12 - / RHO Services to the assessee and it would be incorrect to conclude entirely that no India related services have been provided/ no benefit has been received at the India level. It would be incorrect to brush aside all evidences and conclude that all services are general in nature and do not relate to Indian entity. In fact, Ld. Counsel for the assessee submitted before us voluminous Paper-Books and took us through the services rendered which are aimed at giving India specific benefit. On numerous occasions, we see the overseas staff had meetings with the assessee to provide Regional Management support/ Business management Support to provide support at the India level. While we agree that a perusal of Agreement suggests that some information/ support may be of general nature aimed at providing general guidance to the Ineos Group as a whole/or may not have been availed during the year under consideration, but that cannot lead to the conclusion that no India specific services have been availed by the assessee in India. In our considered view, Ld. TPO as well as DRP have not fully appreciated the substantial evidence placed on record to come to the conclusion the assessee has not been able to substantiate that no services have rendered by the overseas Head Office / Regional Office or that the assessee has not been able to discharge the onus of receipt of India specific services, thereby making it impossible to compute arm’s length price for the aforesaid services.
ITA No. 330/Ahd/2022 & S.P. No. 21/Ahd/2022(in ITA No. 330/A/22) INEOS Styrolution India Ltd. vs. DCIT Asst.Year –2018-19 - 13 - 10. Now this brings us to the second issue: whether Ld. TPO is correct is computing ALP of the services at “Nil” on the basis that no services have been rendered for which any third independent party would pay and/or whether the Ld. TPO is under a legal requirement to compute ALP based at least one of the methodologies provided for under the Income Tax Act, 1961 read with I.T. Rules. In our view, the judicial opinion on this issue is unanimous that where TPO does not resort to any transfer pricing exercise as per any of methods prescribed in section 92C(1) and determines ALP at Nil, transfer pricing adjustment with respect to such services received by assessee from its foreign AE is not sustainable.” ……….
“11. Thus, as per the provisions of aforesaid Rule, the ‘other method’ shall be the method which takes into account the price which has been or would have been charged or paid for the same or similar uncontrolled transaction between non-associated enterprises. However, in the present case, the Ld. TPO without searching for similar uncontrolled transaction between non- associated enterprises, straightaway treated the value of the international transaction to be at “NIL”. In the present case, no search was conducted to find out the independent entity in a comparable transaction and the arm’s length price of the international transaction was treated to be NIL. In the present
ITA No. 330/Ahd/2022 & S.P. No. 21/Ahd/2022(in ITA No. 330/A/22) INEOS Styrolution India Ltd. vs. DCIT Asst.Year –2018-19 - 14 - case, no doubts about payments made by the assessee have been raised by the Assessing Officer under section 37 of the Act. Further, accrual of benefit to assessee or the commercial expediency of any expenditure incurred by the assessee cannot be the basis for disallowing the same, as held by Hon’ble Delhi High Court in the case of EKL Appliances Ltd. [2012] 345 ITR 241 (Del.). In our considered view, the assessee has been able to demonstrate, with substantial supporting material that it availed India specific services from its Head Office / Regional Office. The Ld. Transfer Pricing Officer in view has taken a rather restrictive view in coming to the conclusion that no services were rendered for which any independent third party would pay and hence it was not possible to determine arm’s length price in the instant set of facts. As held in various decisions, the TPO cannot stand in judgment on what benefits the assessee has derived from the services and assessee’s obligation lies to the extent of demonstrating receipt of services. Once, the assessee has been able to demonstrate receipt of services, in our view, Transfer Pricing adjustment without applying any prescribed benchmarking method is unsustainable and Ld. TPO cannot determine ALP at “Nil” and has to determine ALP under any one of the methods prescribed under the Income Tax Act read with the IT Rules. Accordingly, in our view, Ld. TPO has erred in facts and in law in treating the value of the transactions at ‘Nil’.
ITA No. 330/Ahd/2022 & S.P. No. 21/Ahd/2022(in ITA No. 330/A/22) INEOS Styrolution India Ltd. vs. DCIT Asst.Year –2018-19 - 15 - 12. In the result, appeal of the assessee is allowed.”
Respectfully following the aforesaid judgement, we hereby allow the assessee’s appeal in respect of additions/adjustments made on account of global head office services and regional head office services.
Now in respect of addition for addition / adjustment in respect of rendering of contract R&D services to Ineos Germany amounting to Rs. 8,45,215/-, the DRP confirmed the additions with the following observations:
“10.1. In 2013, the rate of 29 percent was agreed between the Assessee and AE. In the initial years, the Assessee had charged a markup of 29 percent. However, in the later years due to the commercial expediency, it was mutually agreed between the Assessee and the AE to charge a markup as per the prevailing arm’s length rate for the said services.
10.2. For the year under consideration, the Assessee had charged an arm's length markup of 20.73 percent on cost. In order to justify the arm's length, the Assessee had conducted detailed FAR for the said transaction. The same is provided to the Learned TPO vide submission dated 12 July 2021 (refer Page No. 59 to 60 of paper book). As can be seen from the FAR analysis, majority of the functions and risks are assumed by the AE and the Assessee is working under the specifications and instructions of the Assessee.
ITA No. 330/Ahd/2022 & S.P. No. 21/Ahd/2022(in ITA No. 330/A/22) INEOS Styrolution India Ltd. vs. DCIT Asst.Year –2018-19 - 16 -
10.3. Further, the Assessee had conducted structured search to identify the margins earned by the similar comparable companies. The 35th and 65th percentile for the said comparables was 8.96 percent and 13.19 percent, with a median of 10.97 percent. The detailed search strategy is provided to learned TPO vide submission dated 12 July 2021 (refer Page No 86 to 91 of the paper book).
10.4. From the above, your Hon'ble Panel will appreciate that the margin earned by the Assessee is higher than the 65th percentile. Further, the Learned TPO has also not raised any objections on the comparable companies identified by the Assessee. Hence, the margin of 20.73 percent on cost should be accepted to be at arm’s length.
10.5. The Assessee would like to place reliance on following judicial precedents wherein it is held that TPO has to confine himself to one of the prescribed methods for determination of the ALP of international transaction, for which mechanism has been prescribed in Rule 10B of the Rules. …..
10.6. Therefore, in light of the above decisions, the appellant submits before the Hon’ble Panel that the Ld. AO/TPO could not have determined the arm's length price of rendition of Contract
ITA No. 330/Ahd/2022 & S.P. No. 21/Ahd/2022(in ITA No. 330/A/22) INEOS Styrolution India Ltd. vs. DCIT Asst.Year –2018-19 - 17 - R&D services without bringing on record any comparable uncontrolled transaction. Hence, the margin of 20.73 percent on cost should be accepted to be at arm's length.
Rule of Consistency
10.7. The Assessee wants to draw your Hon'ble Panel's attention to the fact that the Assessee has been rendering similar services from the AEs from last many years. In fact, in the earlier year (i.e. AY 2017-18) it was scrutinized before your the same Learned TPO, under the same arrangement dated 18 November 2013 of contract R&D, the Assessee had earned a markup of 24.21 percent based on the independent external search. The same was accepted to be at arm's length by learned TPO.
10.8. In view of the Rule of consistency, request the Hon'ble Panel to kindly accept the markup of 20.73 percent to be at arm's length. ……
7.3 Discussions and Directions of DRP
7.3.1 We have considered the rival contentions on this issue carefully. Very briefly, the facts are that as per the contract dtd 18- 11-13 between the assessee and the AE for providing the contract R & D services, the assessee was supposed to get a mark-up on cost of 29%. But, it had actually received 20.73%. Accordingly, he
ITA No. 330/Ahd/2022 & S.P. No. 21/Ahd/2022(in ITA No. 330/A/22) INEOS Styrolution India Ltd. vs. DCIT Asst.Year –2018-19 - 18 - made an adjustment. The assessee now says that it is an old contract. But, no adjustment was ever made on this account in the past. So, rule of consistency demands that this matter should not now be raked up. We do not really agree. There can be no finding on any particular issue in a particular year. But, that cannot be perceived as a silent acceptance of the same and a considered view so as to qualify as a departmental stand. A scrutiny assessment is after all a verification done on sample basis and the same should not be upgraded to the level of a certificate. We also know that every year is also different and a unit in itself. Keeping in view the same as well as the very categorical facts, no interference is required and this objection is accordingly rejected.”
Before us, Ld. Counsel for the assessee submitted that the margin was increased by the Department from 20% to 29% without any cogent reason and without conducting any benchmarking study. Further, the margin has been charged by the assessee after conducting due benchmarking study, which has not been rejected by the Department. Accordingly, this ground should be allowed in favour of the assessee. In response, the Department relied upon the order of the DRP/AO.
We have heard the rival contentions and perused the material on record. In our considered view, we find no infirmity in the order/observations made by DRP/AO in respect of this ground of appeal. The assessee had entered into an agreement/contract in the overseas
ITA No. 330/Ahd/2022 & S.P. No. 21/Ahd/2022(in ITA No. 330/A/22) INEOS Styrolution India Ltd. vs. DCIT Asst.Year –2018-19 - 19 -
company, which contained a specific clause regarding margin of 29% to be charged. However, contrary to the terms of the contract, the assessee has started charging a lower margin. Accordingly, we find no infirmity in the order of the DRP/AO in respect of this ground of appeal. Accordingly, the addition/adjustment in respect of rendering of contract R&D services to Ineos Germany amounting to Rs. 8,45,215/- is hereby confirmed.
In the result, this ground of the assessee’s appeal is dismissed.
In the result, appeal of the assessee is partly allowed.
This Order pronounced in Open Court on 11/10/2022
Sd/- Sd/- WASEEM AHMED SIDDHARTHA NAUTIYAL (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) Ahmedabad; Dated 11/10/2022 TANMAY, Sr. PS TRUE COPY आदेश क� ��त�ल�प अ�े�षत/Copy of the Order forwarded to : 1. अपीलाथ� / The Appellant 2. ��यथ� / The Respondent. 3. संबं�धत आयकर आयु�त / Concerned CIT 4. आयकर आयु�त(अपील) / The CIT(A)- 5. �वभागीय ��त�न�ध, आयकर अपील!य अ�धकरण, अहमदाबाद / DR, ITAT, Ahmedabad 6. गाड' फाईल / Guard file. आदेशानुसार/ BY ORDER, उप/सहायक पंजीकार (Dy./Asstt. Registrar) आयकर अपील�य अ�धकरण, अहमदाबाद / ITAT, Ahmedabad