COLE PARMER INDIA PRIVATE LIMITED,MUMBAI vs. ASSISTANT COMMISSIONER OF INCOME TAX 15(1)(2), MUMBAI

IN THE INCOME TAX APPELLATE TRIBUNAL “C” BENCH, MUMBAI BEFORE SHRI S. RIFAUR RAHMAN, AM & SHRI RAM LAL NEGI, JM आयकरअपीलसं./ I.T.A. No. 957/Mum/2018 (निर्धारणवर्ा / Assessment Year: 2014-15)

ACIT 15(1)(2), M/s Cole Parmer India Room No. 483A, 4th floor, Pvt. Ltd. Aayakar Bhavan, M.K. बिधम/ 403, A-wing, Delhpi, Road, Mumbai-400 020 Hiranandani Business Vs. Park, Powai, Mumbai-400 020 स्थायीलेखासं./जीआइआरसं./PAN No. AAJCS7671K (अपीलाथी/Appellant) (प्रत्यथी / Respondent) : अपीलाथीकीओरसे/ Appellant Shri Madhur Agarwal, AR : by प्रत्यथीकीओरसे/Respondentby : Shri Vijay Kumar Jaiswal, DR सुनवाईकीतारीख/ : 09.09.2019 Date of Hearing घोषणाकीतारीख / : 27.09.2019 Date of Pronouncement आदेश / O R D E R Per S. Rifaur Rahman, Accountant Member: The present Appeal has been filed by the assessee against the order of Ld. Commissioner of Income Tax (Appeals) - 24 in 2 I.T.A. No. 957/Mum/2018 M/s Cole Parmer India Pvt. Ltd.

short referred as ‘Ld. CIT(A)’, Mumbai, dated 06.11.17 for Assessment Year (in short AY) 2014-15. 2. The brief facts of the case are that assessee filed its return of income on 25-11-2014 declaring total income of Rs. 5,43,26,690/-. Subsequently, assessee filed revised return of income on 10.03.15 declaring the same income as per original return of income. Thereafter, the case was selected for scrutiny and notices u/s.143(2) was issued and served on the assessee. In response, Ld. AR filed the relevant information as called for. During the course of assessment proceedings, AO noticed that assessee has claimed Rs. 2,91,88,975/- under shared service expenses and made the above payment to the group company i.e. M/s Thermo Fisher Scientific India Pvt. Ltd. (TFS India). When the assessee was asked to explain, assessee submitted that the company shares common office/resources of its group companies. The group companies have entered into transactions with various vendors for expenses such as communication, power and fuel, salary, office and administration etc. The assessee

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reimburse the portion of its allocable expenses to the group companies on actual cost (without any markup). 3. After considering the above submission, AO asked the assessee to submit the relevant bills, invoices and TDS deducted on the above payments. In this regard, assessee explained as below:- "Details of expenses claimed in the profit and loss account 1.1 These expenses relate to various expenses incurred by the Company for the purpose of carrying the business activities. In supersession of our submission dated 20th Oct 2016, the party- wise details (including address) of expenses incurred during captioned AY along with sample copies of the invoices, are enclosed herewith as below:- Sr. Particulars Amount (Rs. Page no. No.

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Total 63,657,678

the para 1.1 above. This arrangement has been in existence for past several years and has been duly accounted for and audited/ confirmed by the statutory and tax auditor as also been considered in the past ' assessment proceedings. 2,5 Qn perusal of the above facts and details, your goodself will observe that these expenses mainly include expenses like rent for office premises shared by the Company with TFS India and salary expenses of senior level staff employed in the admin, finance, management, IT, etc. teams, which commonly work for both, the Company and TFS India since they belong to the same multinational group. Your goodself will appreciate that these expenses have been subject to applicable TDS at the time of payment of sums by TFS India to the third party vendors/employees. 2.6 Accordingly, the Company submits that TDS is not applicable on payment of such shared service cost for the reasons discussed in details below:- 2.7 Hon’ble Bombay High Court in case of IDFC Investment Advisors Ltd. (2016-TIOL-2699-HC-Mum-IT) upheld the observation of the Mumbai Tribunal that the expenses were originally paid by holding company (an Indian entity) of the tax payer after deducting taxes whenever required and thereafter the same were charged to the assessee company (an indian entity) without any mark up. Since no income arises to the holding company while receiving these reimbursements, TDS is not required to be applied. This judgement squarely covers the/acts under consideration. 2.8 Further, Hon'ble Hyderabad Tribunal in case of Bhagyanagar Gas Limited vs, ACIT . (140 ITD 591), has in the context of reimbursement of salary expenses of an employee between two Indian entities held as follows: "11....Merely because the companies had in an agreement agreed to depute their employees would not mean that it was a works contract. Further, the assessee paid only the salaries of the persons who worked under the control and supervision of the assessee. Instead of paying the amount to the employees directly, the assessee reimbursed the amount to GAIL and HPCL who had paid the amount to the employees. This can be viewed as a financial arrangement under which GAIL and HPCL pay to the deputed employees on behalf of the assessee and the assessee reimburses the same. It is a reimbursement of 6 I.T.A. No. 957/Mum/2018 M/s Cole Parmer India Pvt. Ltd.

amount spent by GAIL and HPCL in payment of persons in the employment of the assessee and payment for any services rendered by GAIL and HPCL.

12 In our opinion such payment cannot be considered as payment towards work executed by GAIL and HPCL in the course of work contract. In the case of United Hotels Ltd, v ITG [20Q5] 2 SOT 267 (Delhi] under similar circumstances, the ITAT, Delhi has held that reimbursement of salary to the deputed personnel would not attract deduction of tax at source. We find that these decisions are squarely cover the issue on appeal. 13. Respectfully the flowing the decision of the Co-ordinate bench, we delete the addition made by the AO u/s 40(a)(ia). 2.9 Hon’ble Delhi Tribunal in case of ACIT vrs Result Services (P) Ltd. (IT appeal no. 2846 (Del of 2011), has in the context of reimbursement of rent expenses between Indian group entities has held as follows:- “…The actual payments made by the lessee (holding company) to the lessor and necessary tax was deducted therefrom. The holding company has also not debited the whole of rent to its books of account. It has only debited the rent which pertains to the part of the premises occupied by it. Therefore, in our considered view, there was no lessor and lessee relationship between the holding Company and assessee where the provisions of section 194-1 are attracted- Keeping these facts in view, we find merits in the order of the CIT (A) in deleting the addition made u/s 40(a)(ia) of the Act. We sustain the order of the CIT (A) and dismiss revenue's appeal" (Para 6)" 2.10 In any case, as per second proviso to section 40(a)(ia) of the IT Act read with the proviso to section 201 of the IT Act, the Company shall not be deemed to be an assessee in default for the purpose of disallowance 'under' section 40(a)(ia) of the IT Act, if following conditions are complied with • The payee has furnished the return of income under section 139 of the IT Act • The payee has taken into account such sum for computing income in such return of income and 7 I.T.A. No. 957/Mum/2018 M/s Cole Parmer India Pvt. Ltd.

• The payee has paid tax due on the income declared by him on such income and 2,11 It is submitted that payees i.e. TFS India is an Indian resident and as such Indian residents are required by the provisions of the IT Act to report their global income in the return and pay due taxes thereon. Therefore, they ought to have accounted for -the payments received from the Company and also offered the said payments as 'income' in their respective books of accounts and / or the return of income filed by them. 2.12 Further have been informed that TFS India has furnished its return of income for AY 2014-15 considering the recovery: of shared service cost. Since, TFS India ultimately ;has tax losses even after considering the aforesaid cost recovery, no tax is due from TFS India on the same. 2.13 Further, recently, Hon'ble Mumbai Tribunal in case of Reliance Communications Ltd, vs. ACIT (69 taxmann.com 307)has held that where assessee, furnished all details of payees who had no income-tax liability due to loss, assessee-deductor could not be held to be assessee-in-default for non-deduction of tax at-source. 2.14 Based on the above discussion, the Company submits that TDS is not applicable on shared service cost, since no income arises to TFS India while receiving these reimbursements. Accordingly, the shared services cost is not liable to be disallowed under section 40(a)(ia)ofthe IT Act.

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"Shared service expenses As mentioned in our submission dated 7 November 2016, Thermo Fisher Scientific India Pvt. Ltd. (TFS, India) had entered into arrangement with various vendors for availing services required for the business of TFS India and the ; Company. These expenses include expenses like rent for office premises shared by the Company with TFS India and salary expenses of senior level staff employed in the ddmin, finance, management, IT, etc, teams, which commonly work for both, the Company and TFS India. As the Company was sharing common office/resources with TFS India, the Company reimbursed a portion of its allocable expenses in relation to these services to TFS India on actual cost basis [i.e. without any markup).The basis for allocation of such is combination of various ratios such as head count of the two companies, office used, revenues earned, etc. and has been consistently followed. The details of shared service expenses including basis of allocation collated from Thermo India is provided in submission dated 7 November 2016. The Company had operations on small scale in the initial years. Hence, the Company had utilised TFS India's resources to reduce administrative burden by paying shared service expenses (i.e. reimbursing the allocable cost for such resources). However, with the growth of the Company, such shared service cost is reduced. As mentioned above, the shared service cost to certain extent was dependent on the turnover of the Company. During the subject year, the Company had only sales and marketing employees on its payroll. It has on its own account only incurred salary cost on sales and marketing team during the subject year. This is evident from the details of salary cost incurred during the year including employee list with their designation is enclosed at page_ to_. With respect to the other operations of the Company such as admin, finance, management, IT, corporate office etc, it relied on TFS India's employees/corporate office and as such, has reimbursed its share of such expenses at cost without any markup. Your goodself will appreciate that, the expenses reimbursed by the Company were reasonable to the turnover of the Company and decreased over the period of time. -The statement of shared service expense ratio to turnover pf the Company is enclosed at page__ to _. Further, we wish your goodself kind attention to 9 I.T.A. No. 957/Mum/2018 M/s Cole Parmer India Pvt. Ltd.

the fact that employee cost of the Company has increased over the years with the decrease in , shared service cost. We have enclosed herewith (at page __, to ) a summary of the shared service ...,„„.,, expenses based on the nature of the expenses reimbursed therein. It is respectfully submitted that largely (75% of total expenses) the shared service expenses incurred by the Company comprises of salary cost, depreciation and occupancy rent. As mentioned in our submission dated 10 November 2016, TFS India has already applied due withholding tax on the salary paid to employees and the rent paid for the common premises. Based on the judicial precedents mentioned in our submission dated10 November 2016, including that of the jurisdictional Bombay High Court and.Mumbai Tribunal which squarely apply to the facts of the case, it is submitted that reimbursement of salary and rent cost is not subject to withholding tax. Similarly, the other expenses reimbursed at cost have also been subject to due withholding tax compliance by TFS India. Considering this fact, a further withholding tax on the shared service cost borne by the Company is not applicable : under the withholding tax obligations of the IT Act, In case your goodself require any further details about underlying transactions, the same may. be obtained from the erstwhile group company in accordance with applicable provisions. Service tax on shared service expenses The service tax charged by Thermo India on shared service expense was debited to profit and loss account(included in the amount of shared service expenses) in the books of Cole India and represents revenue expenditure. The Company has not claimed MODVAT credit/input service tax credit of the shared service expenses incurred. Declaration from Thermo India Copy of declaration from Thermo India is enclosed at page,_ to --, stating no mark-up has been charged to Cole India on the allocated cost and such shared services charged to Cole India are considering its financial statements as 'Other income’ and return of loss of AY 2014-15,"

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After considering the above submission, AO made the 5. additions with the following observation as under:-

4.7 All the Submissions of the assessee have been considered carefully and found not tenable. The shared services expenses of the assessee are as following:- Break up and allocation percentage to total shared service expenses: Particulars Net Expenses Percentage

Salary and Wages 9574465 36.84

Depreciation 1378331 5.30

Occupancy rent 8424167 32.42

Other Expenses 6611456 25.44

Total 25988439 100

Applicable Taxes 3200536

Total Shared Service 29188975 Expenses

4.8 Regarding the occupancy rent sharing, even in a case where premises were jointly occupied by both, there is contractual obligation between TFS India and the assessee company and provision of TDS are attracted. It is submitted that the service tax is applicable to both TFS India and as well as the assessee on shared services expenses. Accordingly, if there is really reimbursement of expenditure by the assessee then, it should have claimed the proportionate MODVAT of service tax credit in it Service Tax Return. Since, there was no reversal of entry for service tax, it if established that the reimbursement is nothing but the contractual obligation.

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4.9 Assessee has taken a plea that shared expenses were only the reimbursement of expenses on which no TDS was applicable. In this regard, assessee was given numerous opportunities during the assessment proceedings to produce the basis of such allocation of the expenses. The assessee submitted that there was no agreement with the TFS India in this regard. Further, after being given various opportunities the assessee did not produced any documentary evidence to support its claim of such; shared expenses. In absence of such supporting documents assessee neither justified its claim of treating such expenses as pure reimbursement on which no TDS was applicable nor could it prove the genuineness of such expenses. 4.10 Assessee has failed to discharge its onus with respect to proving the genuineness of the expenses. Section 101 of the Indian Evidence Act'1872 states that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those fact exits. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. According to Section 103 of the Indian Evidence Act 1872, the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence. Section 106 of Indian Evidence Act 1872 says that when any fact is especially within the knowledge of any person, then burden of proving that fact is upon it. All the above provisions are applicable in the instant ease. In this case assessee claims the shared services expenses were made and payments were made to its related concern. Therefore, burden lies on the assessee to prove the said facts (Section 101 and 103 of Indian Eyidence Act 1872). Secondly, the shared services expenses made were within the knowledge of the assessee. Therefore, the burden is on it to establish that fact. However, the burden has not been discharged by the assessee. 4.11 It is also a settled proposition that if no evidence is given by the party on whom the burden is cast, the issue must be found against him. Therefore, the onus is always upon the person who asserts a proposition or fact, which is not self evident. The Hon’ble Supreme Court, in the case of Chuharmal Vs CIT [1988] 172 ITR 2509/38 Taxman 190, highlighted the fact that the principle of evidence law are not to be ignored by the authorities.

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4.12 In view of the above, the assessee failed to discharge its onus of proving the nature of shared services expenses as pure reimbursement, in absence of any supporting documents. Further, even the genuineness of such expenses has not been established by the assessee. Thus, the shared services expenses of Rs.2,91,88,975/- is hereby disallowed u/s40(a)(ia) of the Act.

2.2 At the outset, the Appellant submits that similar shared service expenses were incurred in earlier years as well. The shared service expenses have been duly accounted in financial statements (reported in other expenses and related party disclosures) and audited/confirmed by the Statutory and Tax Auditors. Further, no disallowance on this issue has been made in earlier years even in the assessment proceedings completed under Section 143(3) of the IT Act. The assessments of the Appellant for AY 2011-12 and AY 2012-13 were completed under Section 143(3) of the IT Act. Shared service expenses incurred during AY 2011-12 and AY 2012-13 were Rs. 1,93,43,957 and Rs. 2,44,33,550 respectively. Copy of assessment orders for AY 2011-12 and AY 2012-13 are enclosed at page 1 to 6 of the paper book. Further, during AY 2012-13, this issue was discussed at length in the assessment proceedings. However, submissions of the Appellant for the year under appeal are as under: 2.3 The break-up of shared service expenses as reproduced at para 4.7, 10 of the assessment order is as under:

Particulars Expenses in Rs. Percentage Salary and wages 95,74,485 36.84 Depreciation 13,78,331 5.30

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Rent 84,24,167 32.42 Other expenses 66,11,456 25.44 (excluding rent) 2,59,88,439 100.00 Total 32,00,536 Applicable tax 2,91,88,975 Total shared service expenses

2.4 During the year under consideration, Thermo Fisher Scientific India Private Limited (Thermo India) was a sister concern of the Appellant. Thermo India and the Appellant operate in same industry i.e. medical devices and were a part of the same multinational group during this year. As such, both the Companies follow similar business practices and operations in terms of matters such as record keeping, human resources, technology and legal/contractual matters. In this regard, Thermo India had entered into arrangements with various third party vendors/employees for availing general/common services and facilities required by Thermo India and the Appellant. These services are collectively negotiated/procured by Thermo India so that benefits of synergy (economies of scale) are enjoyed by Thermo India and the Appellant. Thermo India also had employees across several functions such as admin, finance, management, IT, etc. which catered to the needs of the companies. 2.5 The common cost incurred by Thermo India was thereafter allocated to the Appellant for its share in the total cost of services availed, without adding any mark-up on the same. The basis for allocation of such cost is combination of various ratios such as head count of the two companies, office area used, revenues earned, etc. (A) Genuineness of shared services expenses 2.6 The Appellant had limited resources during the year under consideration. Hence, the Appellant had utilised common resources, to reduce (as mentioned above) administrative burden by reimbursing the allocable cost for such resources.

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The Appellant discontinued this cost sharing arrangement with effect from 15 August 2014 and started incurring the expenses directly by hiring new employees and dealing with lessors, vendors and suppliers, etc. 2.7 The Appellant had submitted copy of financial statements, tax audit report, write up on shared service expenses, detailed break of shared service expenses alongwith allocation ratio, etc. During assessment proceedings, the Ld. AO vide order sheet noting dated 18 November 2016 asked the Appellant to furnish its justification for shared service expenses. The reply filed by the Appellant vide submissions dated 26 November 2016 (which is also reproduced at page 8 to 10 of the assessment order) was as under: "1. Shared service expenses As mentioned in our submission dated 7 November 2016, Thermo Fisher Scientific India Private Limited (TFS India) had entered into arrangement with various vendors for availing services required for the business of TFS India and the Company. These expenses include expenses like rent for office premises snared by the Company with TFS India and salary expenses of senior level staff employed in the admin, finance, management, IT, etc. teams, which commonly work for both, the Company and TFS India. As the Company was sharing common office/resources with TFS India, the Company reimbursed a portion of its allocable expenses in relation to these services to TFS India on actual cost basis (i.e. without any markup). The basis for allocation of such cost is combination of various ratios such as head count of the two companies, office area used, revenues earned, etc. and has been consistently followed. The details of shared service expenses including basis of allocation collated from Thermo India is provided in submission dated 7 November 2016. The Company had operations on small scale in the initial years. Hence, the Company had utilised TFS India's resources to reduce administrative burden by paying shared service expenses (i.e. reimbursing the allocable cost for such resources). However, with the growth of the Company, such shared service cost is reduced. As mentioned above, the shared service cost to certain extent was dependent on the turnover of the Company.

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During the subject year, the Company had only sales and marketing employees on its payroll. It has on its own account only incurred salary cost on sales and marketing team during the subject year. This is evident from the details of salary cost incurred during the year including employee list with their designation is enclosed at page 184 to 185. With respect to the other operations of the Company such as admin, finance, management, IT, corporate office etc, it relied on TFS India's employees/corporate office and as such, has reimbursed its share of such expenses at cost without any mark up. Your good self will appreciate that, the expenses reimbursed by the Company were reasonable to the turnover of the Company and decreased over the period of time. The statement of shared service expense ratio to turnover of the Company is enclosed at page 186 to 186. Further, we wish your goodself kind attention to the fact that employee cost of the Company has increased over the years with the decrease in shared service cost. We have enclosed herewith (at page 187 to 187) a summary of the shared service expenses based on the nature of the expenses reimbursed therein. It is respectfully submitted that largely (75% of total expenses) the shared service expenses incurred by the Company comprises of salary cost, depreciation and occupancy rent. As mentioned in our submission dated 10 November 2016, TFS India has already applied due withholding tax on the salary paid to employees and the rent paid for the common premises. Based on the judicial precedents mentioned in our submission dated 10 November 2016, including that of the jurisdictional Bombay High Court and Mumbai Tribunal which squarely apply to the facts of the case, it is submitted that reimbursement of salary and rent cost is not subject to withholding tax. Similarly, the other expenses reimbursed at cost have also been subject to due withholding tax compliance by TFS India. Considering this fact, a further withholding tax on the shared service cost borne by the Company is not applicable under the withholding tax obligations of the IT Act. In case your goodself require any further details about underlying transactions, the same may be obtained from the erstwhile group company in accordance with applicable provisions. 2. Service tax on shared service expenses

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The service tax charged by Thermo India on shared service expense was debited to profit and loss account (included in the amount of shared service expenses) in the books of Cole India and represents revenue expenditure. The Company has not claimed MODVAT credit/input service tax credit of the shared service expenses incurred. 3. Declaration from Thermo India Copy of declaration from Thermo India is enclosed at page 188 to 192 stating no mark-up has been charged to Cole India on the allocated cost and such shared services charged to Cole India are considered in its financial statements as 'Other income' and return of loss of AY 2014-15." 2.8 Despite the above mentioned submissions, the Ld. AO disallowed shared service expenses, interalia, stating that Appellant could not establish the genuineness of shared service expenses. The Appellant respectfully submits that it has fairly established genuineness of expenses in the submissions and documents filed vide letter dated 26 November 2016. Copy of the said submissions are enclosed at page 7 to 18 of the paperbook including following

Sr. No. Particulars page nos of the p.b 1. Salary cost with employee list and designation 10-11 2. Statement of shared service expense ratio to turnover of the Appellant 12 3. Summary of the shared service expenses based on the nature of the expenses reimbursed 13 4. Copy of certificate from Thermo India 14-18

2.9 Further, as mentioned earlier, the Appellant discontinued this cost sharing arrangement with effect from 15 August 2014 and started incurring the expenses directly. The Appellant provides below the statement of increase in fixed assets, employee cost, rent, security and housekeeping expenses in 17 I.T.A. No. 957/Mum/2018 M/s Cole Parmer India Pvt. Ltd.

subsequent years post discontinuance of shared service expenses. Particulars Ay 2016-17 AY 2015-16 AY 2014-15 Shared service Nil expenses 1,23,79,645 2,91,88,975 Employee 7,38,73,441 5,21,72,572 3,93,59,777 cost Rent 1,93,24,021 63,99,253 Nil Security and housekeeping expenses 24,81,547 6,87,234 Nil Purchase of 29,96,939 new assests 33,43,026 5,06,382

The relevant extract of financial statements for AY 2015-16 and AY 2016-17 is enclosed at page no. 19 to 22 of the paperbook. On perusal of above, your Honour will appreciate that shared service expenses incurred by the Appellant were reasonable. 2.10 In addition to above, the Appellant also submitted detailed break up of shared service expenses along with summary of its allocation during the assessment proceedings vide submissions dated 10 November 2016 (please refer relevant extract of submissions at page 28 to 29 of the paperbook). 2.11 The Appellant also reiterates that no disallowance in respect of such shared service expenses has been made in earlier years. Therefore, there is no reason to disallow shared service expenses during the year under appeal as well. In assessment order, the Ld. AO has disallowed shared service expenses on the premise that the Appellant did not produce documentary evidence/supporting documents in support of its claim of shared service expenses. The Appellant respectfully submits that the adequate evidence (as mentioned above) was submitted during the assessment proceedings. Further, Thermo India incurs total expenses for seven of its divisions and the Appellant. Expenses allocated to the Appellant are not even 6% of total expenses incurred by Thermo India (please refer page 28 to 29 of the paperbook). Moreover, evidence/supporting documents for expenses are retained by Thermo India and not 18 I.T.A. No. 957/Mum/2018 M/s Cole Parmer India Pvt. Ltd.

with the Appellant as the expenses are first incurred by Thermo India by payments to employees/outside parties. 2.12 During the assessment proceedings, the Appellant also submitted a certificate from Thermo India (please refer page 14 to 18 of the paperbook), which is reproduced as under: "This is to certify that we, Thermo Fisher Scientific India Private Limited (hereinafter referred to as "Thermo Fisher") with PAN: AABCT3207A, shared common office/resources with Cole Farmer India Private Limited during Financial Year 2013- 14, for which we were reimbursed the share of expenses pertaining to Cole Farmer India Private Limited of Rs. 2,91,88,975 on actual cost basis (i.e. without adding any markup on such actual cost). We also confirm that Thermo India has deducted tax at source, wherever applicable, on underlying payments made to third party vendors / employees for availing above services and has deposited the same with the government treasury. Copy of acknowledgement of withholding tax returns filed for financial year 2013-14 are enclosed as Annexure 1. Further, we confirm that above receipt of reimbursements from Cole Farmer India Private Limited has been accounted as 'Other income' in the financial statements of Thermo Fisher for financial year 2013-14. This certificate is issued at the specific request of M/s Cole Farmer India Private Limited for the purpose of their income- tax assessment proceedings." 2.13 In the above certificate, Thermo India has confirmed the following: • Thermo India has shared common office/resources with the Appellant during Financial Year 2013-14 • Expenses amounting to Rs. 2,91,88,975 were reimbursement by the Appellant • Reimbursements were made at actual cost without adding any mark up on actual cost • Thermo India has deducted tax at source, wherever applicable, on underlying payments made to third party vendors/employees

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for availing services and deposited the same with the government treasury • Receipt of reimbursements from the Appellant has been accounted as 'Other income' in the financial statements of Thermo India for financial year 2013-14 2.14 The Ld. AO has mentioned in the assessment order that he had issued a notice under Section 133(6) to Thermo India and requested the details for shared service expenses. Thermo India visited the office of the Ld. AO on 15 December 2016 to submit a reply to notice under Section 133(6) of the IT Act. The said reply was not even accepted by the office of the Ld. AO on the premise that the assessment order was already passed by him on 13 December 2016. Hence, Thermo India sent the reply by registered post on 23 December 2016. A copy of the said reply is enclosed at page 30 to 47 of the paperbook. 2.15 Copy of ledger extract of Appellant's account in the books of Thermo India is at page 37 to 45 of the paperbook (i.e. in Thermo India's reply to the Ld. AO's notice under Section 133(6) of the IT Act). Sample copy of monthly debit notes are enclosed at page 48 to 52of the paperbook. Further, amounts corresponding amount to sample debit notes of shared service expenses are highlighted in the ledger extract at page 37 to 45 of the paperbook. Based on perusal of the debits notes, your Honour will appreciate that shares service expenses are backed by relevant evidence/ supporting documents and proves genuineness of the expenses. 2.16 Further, the Appellant wish to highlight your Honour that the Appellant had provided PAN of Thermo India to the Ld. AO. Hence, he could have collated the necessary details from jurisdictional officer of the Thermo India. However, the Ld. AO, on the contrary, did not even wait for these details from Thermo India and passed the order on 13 December 2016 although the last date for passing the order was 31 December 2016. 2.17 The Appellant would like to press into service the decision of the Hon'ble Madras High Court in the case of M/s Gamesa Renewable Pvt. Ltd. (W.P. Nos 5499 and 9629 Of 2016 and W.M.P. Nos 4840, 11713, 8658 and 11712 of 2016). In this case, the order passed by the Hon'ble Dispute Resolution Panel (DRP) on 23 December 2015 was challenged before the Hon'ble High Court on the grounds of violation of principles of natural

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justice. The Hon'ble High Court allowed the petition of the assessee and set aside the order of the Hon'ble DRP. The Hon'ble High Court held that the Hon'ble DRP had sufficient time to pass the order till 31 December 2015 and it appears that the entire proceedings was closed in a hurried manner. 2.18 Furthermore, the Appellant wishes to rely on the decision of Vodafone Essar Limited, Mumbai v. DCIT (TDS) (45 SOT 82), wherein the Hon'ble Mumbai Tribunal, observed and held that: "It is true that the onus is initially on the assessee who takes UP the plea but when sufficient details which would enable the Assessing Officer to verify the factual position have been filed before the Assessing Officer it was for the Assessing Officer, with his vast powers, to invoke them and have the details furnished by the assessee verified. In the present case the assessee has furnished the Permanent Account Numbers of nineteen parties and letters of confirmation have been filed from eight of them before the CIT(A). The Permanent Account Numbers would facilitate an enquiry to be made by the Assessing Officer from the Assessing Officers assessing; the payees." (Emphasis supplied) 2.19 The Appellant would also like to draw the kind attention of your Honour to Office Memorandum dated 7 November 2014, wherein the CBDT has promised a non-adversarial tax regime to the assessees. The relevant extract of the said office memorandum is reproduced below. " i) Despite less than one percent cases being selected for scrutiny assessment, this area of work continues to remain in focus where the tax administration is questioned as adversarial. " 2.20 The Appellant respectfully submits that disallowance of expenses consistently allowed in earlier years and that without even waiting for the reply of Thermo India amounts to an adversarial action against the Appellant. 2.21 In view of the above, the Ld. AO was not justified in disallowing the shared service expenses on the premise that the Appellant did not establish the genuineness of these expenses. (B) Tax deducted at Source (TDS) on shared service expenses

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2.22 One of the reasons given in the assessment order for disallowance of shared service expenses is that the Appellant has not deducted tax on shared service expenses. Thus, expenses are disallowable under {Section 40(a)(ia) of the IT Act.

2.23 The Appellant respectfully submits that TDS was not required to be deducted on shared service expenses for the following reasons: (B1) TDS provisions not applicable on shared service expenses 2.24 The Appellant has incurred expenses only towards sharing of cost with Thermo India. There was no works contract or leasor-leasee relationship between Thermo India and the Appellant. Thus, TDS provisions (like Section 194C, Section 1941, etc.) are not applicable to shared service expenses. In respect of this, the Appellant places reliance on the following judicial precedents: • Bhagyanagar Gas Limited vs. ACIT [140 ITD 591 (Hyderabad ITAT)]. "11....Merely because the companies had in an agreement agreed to depute their employees would not mean that it was a works contract. Further, the assessee paid only the salaries of the persons who worked under the control and supervision of the assessee. Instead of paying the amount to the employees directly, the assessee reimbursed the amount to GAIL and HPCL who had paid the amount to the employees. This can be viewed as a financial arrangement under which GAIL and HPCL pay to the deputed employees on behalf of the assessee and the assessee reimburses the same. It is a reimbursement of amount spent by GAIL and HPCL in payment of persons in the employment of the assessee and payment for any services rendered by GAIL and HPCL. 12. In our opinion such payment cannot be considered as payment towards work executed by GAIL and HPCL in the course of work contract. In the Case of United Hotels Ltd. v ITO [2005] 2 SOT 267 (Delhi) under similar circumstances, the ITAT, Delhi has held that reimbursement of salary to the deputed personnel would not attract deduction of tax at source.

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We find that these decisions are squarely cover the issue on appeal... 13. Respectfully following the decision of the co-ordinate bench, we delete the addition made by the AO under Section 40(a)(ia)." (Emphasis supplied) • ACIT vs. Result Services (P.) Ltd. [23 taxamnn.com 93 (Delhi ITAT)]. "....The actual payments made by the lessee (holding company) to the lessor and necessary tax was deducted therefrom. The holding company has also not debited the whole of rent to its books of account. It has only debited the rent which pertains to the part of the premises occupied by it. Therefore, in our considered view, there was no lessor and lessee relationship between the holding company and assessee where the provisions of Section 194-1 are attracted. Keeping these facts in view, we find merits in the order of the CIT (A) in deleting the addition made u/s 40(a)(ia) of the Act. We sustain the order of the CIT (A) and dismiss revenue's appeal" (Para 6)" (Emphasis supplied) 2.25 In para 4.8 of the assessment order, the Ld. AO has given his reasons as under: "4.8 Regarding the occupancy rent sharing, even in a case where premises were jointly occupied by both, there is contractual obligation between TFS India and the assessee company and provision of TDS are attracted. It is submitted that the service tax is applicable to both TFS India and as well as the assessee on shared service expenses. Accordingly, if there is really reimbursement of expenditure by the assessee then, it should have claimed the proportionate MODVAT of service tax credit in its Service Tax Return. Since, there was no reversal of entry for service tax, it is established that the reimbursement is nothing but the contractual obligation." 2.26 The Appellant respectfully submits that the contention of the Ld. AO that occupancy rent shared between Thermo India and the Appellant attracts TDS provisions is contrary to the decisions cited above particularly the decision in the case of Result Services (P.) Ltd. (supra). In light of the above judicial precedents, TDS is not applicable on shared service expenses. On perusal of page 5 and 6 of the assessment order, your

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Honour will observe that reliance on above decision was also placed during the assessment proceedings. However, nowhere in assessment order the Ld. AO has stated as to why the above decisions are not applicable in the Appellant's case. 2.27 As regards the contention of the Ld. AO about reversal of entry of Service Tax, the Appellant invites your Honour's kind attention to following submissions made during the assessment proceedings (which are reproduced at page 9 and 10 of the assessment order): "The service tax charged by Thermo India on shared service expense was debited to profit and loss account (included in the amount of shared service expenses) in the books of Cole India and represents revenue expenditure. The Company has not claimed MODVAT credit/input service tax credit of the shared service expenses incurred." As the Appellant is a trader, the Appellant is not required to pay Service tax on its sale of equipments. Therefore, the Appellant connot claim credit of Service Tax paid on such shared service expenses. Accordingly, such tax has been claimed as expense in profit and loss account and no reversal entry is passed. Further, applicability of TDS on shared service expenses needs to be examined with reference to provisions of the IT Act and judicial precedents under the IT Act.

(B2) Thermo India has no taxable income during the year under appeal 2.28 In any case and without prejudice to the above, even if TDS provisions are assumed (and without admitting) to be applicable, the Appellant was also not required to deduct tax on payment of shared service expenses to Thermo India. In reply to the notice issued by the Ld. AO, Thermo India, interalia, submitted an acknowledgement of its return of income for the year under appeal (please refer page 46 of the paperbook). On perusal of the said acknowledgement, your Honour will observe that Thermo India has no taxable income during the year under appeal. Accordingly, Thermo India was not required to pay tax during the year under appeal. Thus, the Appellant was also not required to deduct tax on payment of shared service expenses to Thermo India. In support of this, the Appellant places reliance on the decision of Hon'ble Mumbai Tribunal in the case of 24 I.T.A. No. 957/Mum/2018 M/s Cole Parmer India Pvt. Ltd.

Reliance Communications Ltd. vs. ACIT (69 taxmann.com 307). Relevant extract of the decision is produced hereunder: "if deductees have themselves incurred huge losses and have shown these losses in their return of income on which no income-tax is payable then, there is no occasion to pay tax by the deductees and hence, in such a situation, neither the assessee can be held to be assessee-in- default for nor non- deduction of the tax for amount paid by the deductees would entail levy of interest under section 201(1 A)..." (Emphasis supplied) 2.29 In view of the above decision of Hon'ble Mumbai Tribunal in case of Reliance Communications Ltd. (supra), the Appellant was not required to deduct TDS on payment of shared service expenses to Thermo India. Reliance on this decision was also placed during assessment proceedings. Despite this, the Ld. AO has disallowed shared service expenses for non-deduction of tax at source. (B3) Violation of provisions of Section 191 of the ITActbv the Ld. AO 2.30 Without prejudice to the above, as mentioned earlier, Thermo India did not have taxable income during the year. Therefore, the Appellant cannot be treated as assessee-in- default under Section 201(1) of the IT Act. Thus, disallowance under Section 40(a)(ia) of the IT Act is not warranted in the hands of the Appellant for payments made to Thermo India. As per the provisions of Section 191 of the IT Act, only if the payee has also failed to pay tax directly, the payer will be deemed to be an assessee in default in respect of such tax. 2.31 It is respectfully submitted that it was the obligation of the Ld. AO to verify whether the Thermo India have duly discharged their income tax liability before alleging any default in TDS liability on the Appellant. In the case of the Appellant, it is submitted that the Ld. AO has not fulfilled this obligation under Section 191 of the IT Act.

2.32 With respect to the above proposition, the Appellant wishes to place reliance on the judicial precedents which are discussed below:

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2.33 The Hon'ble Allahabad High Court in the case ofJagran Prakashan Ltd vs DCIT (21 taxmann.com 489) has held that tax deductor cannot be treated an assessee in default till it is found that assessee (i.e. recipient of income) has also failed to pay such tax directly. The relevant observation of the Hon'ble High Court is as under: "...........it is clear that deductor cannot be treated an assessee in default till it is found that assessee has also failed to pay such tax directly. In the present case, the Income tax authorities had not adverted to the Explanation to Section 191 nor had applied their mind as to whether the assessee has also failed to pay such tax directly. Thus, to declare a deductor, who failed to deduct the tax at source as an assessee in default, condition precedent is that assessee has also failed to pay tax directly. The fact that assessee has failed to pay tax directly is thus, foundational and jurisdictional fact and only after finding that assessee has failed to pay tax directly, deductor can be deemed to be an assessee in default in respect of such tax....." (Emphasis supplied) 2.34 Further, the Appellant wishes to rely on the decision Hon'ble Mumbai Tribunal in case of Vodafone Essar Limited (supra), wherein the, observed and held that: "We have carefully considered the rival points of view. After the judgment of the Supreme Court in the case of Hindustan Coca Cola Beverage (P.) Ltd. (supra), there is no merit in the contention that taxes can be recovered from the deductor even though taxes were paid by the deducetees. It is pertinent to note that at page 229 of the Report, the Supreme Court has noticed that the Department in that case conceded before the Tribunal that the recovery could not once again be made from the tax deductor where the payee included the income on which tax was alleged to have been short deducted in its taxable income and paid taxes thereon. The Income-tax Department being an All India Body cannot take a different position and contend that even though the taxes were paid by the payees including the taxes on the payment in dispute, it was still open to it to recover the taxes from the payer/deductor..." (Emphasis supplied) 2.35 In view of the above, the Ld. AO has not discharged his obligation under Section 191 of the IT Act.

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(B4) No TDS is required to be deducted on shared service expenses as per decision of the Hon'ble Bombay High Court in case of IDFC Investment Advisors Ltd [2016-TIOL-2699-HC- MUM-IT1

2.36 In its certificate reproduced at para 2.12 above, Thermo India has confirmed that they were reimbursed share of expenses pertaining to Appellant on actual cost basis without any mark up on such actual cost. In view of such a certificate/ conformation given by Thermo India, the Appellant was not required to deduct tax on shared service expenses. 2.37 In support of this, the Appellant places reliance on the decision of jurisdictional Hon'ble Bombay High Court in case of IDFC Investment Advisors Ltd (supra). In this case, the Hon'ble High Court has upheld the observation of the Hon'ble Tribunal that the expenses were originally paid by holding company (an Indian entity) of the tax payer after deducting taxes whenever required and thereafter the same were charged to the assessee company (an Indian entity) without any mark-up. Since, no income arises to the holding company while receiving these reimbursements, TDS is not required to be applied. This judgment squarely covers the facts under consideration. (B5) No TDS is required to be deducted as per second proviso to Section 40(a)(ia) of the IT Act 2.38 Without prejudice to above, as per second proviso to Section 40(a)(ia) of the IT Act read with the proviso to Section 201(1) of the IT Act, the Appellant shall not be deemed to be an assessee in default for the purpose of disallowance under Section 40(a)(ia) of the IT Act, if following conditions are complied with • The payee has furnished the return of income under Section 139 of the IT Act • The payee has taken into account such sum for computing income in such return of income • The payee has paid tax due on the income declared by him on such income and 27 I.T.A. No. 957/Mum/2018 M/s Cole Parmer India Pvt. Ltd.

• The person furnishes a certificate to this effect from an accountant in prescribed form 2.39 It is submitted that payee (i.e. Thermo India) furnished its return of income for year under appeal under Section 139(1) of the IT Act. Copy of acknowledgment of return of income is enclosed at page 46 of the paperbook. In its certificate at page 14 to 18 of the paperbook, Thermo India has confirmed that it has accounted for the payments received from the Appellant and also offered the said payments as 'income' in their respective books of accounts and/or the return of income filed by them. Thermo India has considered the said receipts while computing the tax on its income for filing of return of income. Copy of certificate to this effect as required under Second proviso to Section 40(a)(ia) of the IT Act also enclosed at page no. 53 tO 63 of the paperbook. 2.40 As the Appellant is satisfying all the conditions of second proviso to Section 40(a)(ia) of the IT Act, the Appellant is entitled to deduction of shared service expenses. (C) Conclusion and prayer 2.41 In view of the above submissions, it is clear that: • No disallowance of expenses merits to be made, as these expenses are consistently allowed in earlier years • The Appellant has established genuineness of shared service expenses • TDS provisions are not applicable on shared service expenses • Thermo India has no taxable income during the year under appeal and hence, the Appellant was not required to deduct tax under Section 40(a)(ia)of thelTAct • The Ld. AO has violated the provisions of Section 191 of the IT Act • No TDS is required to be deducted on shared service expenses as per decision of Hon'ble Bombay High Court in case of IDFC Investment Advisors Ltd (supra) • No tax is required to be deducted as per the second proviso to Section 40(a)(ia) of the IT Act

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Accordingly, the Appellant prays that the Ld. AO be directed to delete the disallowance of shared service expenses under Section 40(a)(ia) if the IT Act.

a. Confirmation from TFS India was called by the AO u/s. 133(6) during the course of assessment proceedings, which was not submitted by the asseseee or TFS India. b. Assessee was given numerous opportunities to produce the basis of allocation of expenses. The assessee did not submit the same as well as the documentary supporting evidences related to expenses. The assessee merely stated that it had no agreement with TFS India. The assessee thus did not provide any documents justifying its claim that the expenses were pure reimbursements on which no TDS is deducted nor proved the genuineness of the such expenses. The assessee only submitted confirmation from TFS India to prove expenses were genuine. c. There is huge difference in allocation of percentage of total shared service expenses. d. Service tax was applicable to both the assessee and TFS India. Had the expenses been pure reimbursements, then the assessee would have claimed proportionate MODVAT of service tax credit in its Service tax Return, which is not the case. e. None of the evidences serve or lead to any clarity that how the expenses are shared between assessee and TFS India as no agreement exists between them

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I have perused all the documents provided by the assessee during the course of appellate proceedings as well as the AO order and remand report. The assessee has submitted the relevant details required to claim shared service expenses. The proportion of the each head of expense to the total shared service expense claim has been reproduced by the AO in his assessment order at para 4.7 and the same has also been submitted by the assessee in the appellate proceedings. To decide the genuineness of the expenses claimed, it is imperative to analyse every nature of expenses included in the shared service expenditure claimed. The assessee has submitted a chart stating the basis of allocation which includes the percentage of allocation of expenses made to each account. It is pertinent to note here that in this chart as well as any of the appellate submissions or paper book filed by the assessee, the assessee has nowhere explained or elucidated how the percentage of allocation is worked out. The assessee has mentioned that rent is basis the area occupied or salary is basis the manpower utilized for various services. However, the details of the basis of allocation have not been provided for the Revenue to determine whether the basis of allocation adopted by the assessee is correct in itself or not. In other words, the assessee has not provided the total office area of which the area was occupied by the assessee or the total salary expenses of which the salary was allocated to the assessee and the basis of charging the same which includes the name of personnel whose salary is charged, nature of services provided, etc. No details in respect of other expenses have been filed alongwith the rational and basis of allocation. The assessee has stated that the expenses allocated by TFS India to the assessee are not even 6% of the total expenses incurred by TFS India. But this statement is not really helpful as the 30 I.T.A. No. 957/Mum/2018 M/s Cole Parmer India Pvt. Ltd.

allocation may be whatever percentage but the genuineness of the allocation can only be determined by examining the basis adopted to quantify the allocable expenses. The assessee has relied on plethora of decisions to contend that the AO ought to have verified the documents when the assessee has submitted the relevant factual position. I agree to this decision but in this case, the assessee has failed to provide the basic detail required to compute the percentage of allocation of expenses made. The contention of the assessee that the said expenses are pure reimbursements can only be concluded if the basis of allocation of expenses is identified and examined. In these given facts, I am of the considered view that the assessee has failed to prove the basis of bonafide of the expenses allocated with substantial documents/evidences and accordingly, in my view, the AO's finding that the expenses are not genuine is correct uphold the decision of the AO and dismiss the ground of appeal filed by the assesse.

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The Appellant prays that ground raised above be allowed and the order so passed be quashed as it is bad in law. All the above Grounds of Appeal are independent of and without prejudice to one another. Furthermore, the Appellant craves leave to add, alter, amend or withdraw all or any of the Grounds of Appeal herein and to submit such statements, documents and papers as may be considered necessary either at or before the appeal hearing.

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of employees which is claimed by the assessee in the profit and loss account which consist the employees working only in marketing. He further submitted that when the AO enquired the detailed expenditure shared by the TFS and whether the TFS has deducted TDS while making payment, it is brought to our notice that by the time TFS responded, the assessment was completed.

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Therefore, TDS need not be deducted u/s 40(a)(ia) of the Act. Further he submitted that the second proviso in section 40(a)(ia) is applicable to assessee’s case as the assessee is not found to be assessee in default. In the above proposition, he relied on the decision of Hon’ble Bombay High Court in the case of CIT vrs. IDFC Investment Advisors Ltd (ITA No. 968 of 2014).

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which was not submitted before AO. All these information were verified by AO in remand proceedings and AO had made following adverse comments that a) TFS India has not filed confirmation u/s 133(6), assessee was given several opportunities to submit the supporting documents for expenses, not filed the basis of allocation, huge difference in allocation of percentage of total shared service expenses, service tax applicable and no details on claim of Modvat claim submitted and the claim of expenses are clear due to non-existence of agreement between the assessee and TFS India. Ld. CIT(A) also confirmed the addition merely relying on the findings of AO instead of addressing the issues raised by assessee in the legal context, which is given below:-

a) Assessee has shared the revenue expenses with the group company i.e. TFS India, which is 2% of the revenue from operation and assessee has filed the details of cost of work force employed by assessee, which are basically comprised of marketing staffs. For 36 I.T.A. No. 957/Mum/2018 M/s Cole Parmer India Pvt. Ltd.

the other administrative, space utilization and other common equipments were shared with the group concern. Assessee has not charged anything for the administrative expenses to the P & L account.

In our view, every business needs administration and if the assessee decides to avail common facilities, which is legally permissible. Since both the sister concern and having similar tax rates, there will not be any tax leakage. Further the allocation is based on agreed formula. As long as it is within permissible limit, it should be considered. In this case, it is only 2% of the revenue from operation.

b) AO cannot invoke section 40(a)(ia) without finding the assessee as an assessee in default, Ld. CIT(A) should have considered the second proviso to section 40(a)(ia) before dismissing the plea of the assessee.

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c) Next issue is, the group company TFS India, does not have taxable income, the Court in the case of IDFC Investment Advisors Ltd (supra), no TDS is required to be deducted on shared service expenses. Ld. CIT(A) should have verified this aspect before dismissing the ground.

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आदेशकीप्रनिनिनिअग्रेनर्ि/Copy of the Order forwarded to : अपीलाथी/ The Appellant 1. 2. प्रत्यथी/ The Respondent 3. आयकरआयुक्त(अपील) / The CIT(A) 4. आयकरआयुक्त/ CIT- concerned यवभागीयप्रयतयनयि, आयकरअपीलीयअयिकरण, मुंबई/ DR, ITAT, 5. Mumbai 6. गार्डफाईल / Guard File आदेशधिुसधर/ BY ORDER, .उि/सहधयकिंजीकधर (Dy./Asstt.