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Income Tax Appellate Tribunal, “B” BENCH, PUNE
Before: SHRI D. KARUNAKARA RAO, AM & SHRI VIKAS AWASTHY, JM
आदेश / ORDER
PER VIKAS AWASTHY, JM :
This appeal by the Revenue is directed against the order of Commissioner of Income Tax (Appeals)-IT/TP, Pune dated 30-06-2014 for the assessment year 2006-07.
The Revenue in appeal has assailed the order of Commissioner of Income Tax (Appeals) on following grounds :
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“1. Whether on the facts and circumstances of the case, learned CIT(A)-IT/TP has erred in deciding the issue in favour of the assessee without re examining the facts of the case by directing to exclude costs of Rs.2,13,78,691/- pertaining of RISFIC projects and Rs.50,00,000/- in the case of power capacitor project as extraordinary costs. 2. Whether on the facts and circumstances of the case, learned CIT(A)-IT/TP erred in deciding the issue in favour of the assessee without re-examining the facts of the case by directing to include Keltron Resistors and Keltron Electro Ceramics in the list of the comparable companies. 3. Whether on the facts and circumstances of the case, learned CIT(A)-IT /TP has erred in deciding the issue in favour of the assessee without re examining the facts of the case by directing to grant proportionate adjustment and grant of working capital adjustment to the Appellant. 4. The appellant craves to add, amend or alter any grounds of appeal.”
Shri Farrokh V. Irani appearing on behalf of the assessee submitted at the outset that this is a second round for the impugned assessment year before the Tribunal. In the first round the assessee carried the matter in appeal before the Tribunal in ITA No. 133/PN/2011. The Tribunal vide order dated 25-05-2012 partly allowed the appeal of assessee. In so far as the grounds raised by the Revenue in present appeal are concerned, the Tribunal, in principle, had allowed the grounds. The Assessing Officer while giving effect to the order of Tribunal failed to comply with the directions of Tribunal and again made the additions on the issues allowed by the Tribunal.
3.1 Aggrieved by the order of Assessing Officer dated 13-01-2014 passed u/s. 143(3) r.w.s. 254 of the Act, the assessee filed appeal before the Commissioner of Income Tax (Appeals). The Commissioner of Income Tax (Appeals) directed the Assessing Officer to comply with the directions of Tribunal and decided the issues in line with the findings of Tribunal.
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3.2 The ld. AR submitted that in ground No. 1 of the appeal the Revenue has assailed the directions of Commissioner of Income Tax (Appeals) in excluding the cost of Rs.2,13,78,691/- pertaining to RISFIC projects and Rs.50,00,000/- in respect of power capacitor project. The ld. AR pointed that the Tribunal in first round allowed the assessee’s claim by placing reliance on the decision rendered in the case of Demag Cranes & Components (India) Pvt. Ltd. Vs. DCIT in ITA No. 120/PN/2011 for assessment year 2006-07 decided on 04-01-2012.
3.3 In respect of ground No. 2 raised in the appeal the ld. AR submitted that the Tribunal had upheld the plea of assessee against exclusion of Keltron Group Companies. The Assessing Officer failed to give effect to the order of Tribunal, accordingly.
3.4 In respect of ground No. 3 of the appeal the ld. AR submitted that the Revenue has opposed allowing of proportionate adjustment and working capital adjustment. The Tribunal had remitted the issue back to the file of Assessing Officer after placing reliance on the decision rendered in the case of DCIT Vs. M/s. Starlite reported as 133 TTJ 425 (Bom) and T Two International Pvt. Ltd., Tara Jewels Exports Pvt. Ltd., Tara Ultimo Pvt. Ltd. Vs. ACIT reported as 122 TTJ 957 (Mum). The Tribunal furnished the copy of order of the Tribunal in ITA No. 133/PN/2011 (supra).
On the other hand Shri Sudhendu Das representing the Department vehemently supported the order of Assessing Officer. The ld. DR submitted that the Commissioner of Income Tax (Appeals) has failed to examine the issue in right perspective. The ld. DR prayed for restoring the findings of
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Assessing Officer and setting aside the order of Commissioner of Income Tax (Appeals).
We have heard the submissions made by representatives of rival sides and have perused the orders of authorities below. Both the sides are unanimous in admitting that the issues raised in the present appeal have already travelled to the Tribunal in first round of litigation. The only dispute is whether the Assessing Officer while giving effect to the order of Tribunal has followed the directions of Tribunal in right perspective.
In ground No. 1 of the appeal the Revenue has assailed exclusion of extraordinary costs in respect of : (i) RISFIC projects Rs.2,13,78,691/- ; and (ii) Power capacitor project Rs.50,00,000/-. The contention of the assessee is that the above costs are extraordinary costs incurred in initial phase of production, therefore, it should be excluded. We find that the Co-ordinate Bench of Tribunal has adjudicated this issue in paras 8 to 14 of its order in ITA No. 133/PN/2011 (supra). The Tribunal after placing reliance on the decision rendered in the case of Demag Cranes & Components (India) Pvt. Ltd. Vs. DCIT (supra) allowed assessee’s claim. The Co-ordinate Bench of the Tribunal after discussing the merits remitted the issue back to Assessing Officer/Transfer Pricing Officer with following observations : “14. In view of the aforesaid discussion, in our view, the assessee ought to succeed on this Ground and we accordingly direct the AO/TPO to examine the claim of the assessee in the light of the directions contained in the order of the Tribunal in the case of Demag Cranes& components (India) Pvt. Ltd (supra) dated 4-1-2012.”
We observe that the Assessing Officer instead of following the directions of the Tribunal reiterated the observations made by TPO and again made the addition. The Commissioner of Income Tax (Appeals) in the impugned order has held that the TPO has not followed the directions of
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Tribunal while deciding this issue. The Commissioner of Income Tax(Appeal) in line with the order of Tribunal has directed to exclude Rs.2,13,78,691/- and Rs.50,00,000/- from the operating cost for computing operating margin. We do not find any infirmity in the order of Commissioner of Income Tax (Appeals) in deciding the issue, in accordance with the directions of Tribunal. Accordingly, ground No. 1 raised in the appeal by the Revenue is dismissed being devoid of any merit.
In ground No. 2 of the appeal the Revenue has assailed exclusion of Keltron Resistors and Keltron Electro Ceramics (Keltron Group Companies) as comparables. We find that inclusion of Keltron Group Companies was agitated by the assessee in the first round before the Tribunal. The Tribunal decided the issue in favour of assessee by observing as under :
“24. In our considered opinion, mere fact that Comparable Company is owned by Government, it cannot be a criteria to reject the same, inasmuch as ownership structure of a concern is normally not expected to have a bearing on its operating margins. Nevertheless, even if we were to go along with that thought process of the TPO on this count to reject such Comparable Companies, but after having accepted their comparability on account of functionality, the onus was on the TPO to establish that it had certain peculiar features which actually impacted the profit margins. In this context, in para 1.9.2.3 of the written submissions addressed to DRP, a copy of which is placed in the Paper Book at pages 15.1 to 15.11, the assessee has tabulated the employee cost percentage to sales ratio of the Comparable vis-à-vis the assessee. In terms of the same, the cost of compensation of employees on sales of Comparable Companies, including, Keltron group of companies works out to 14.68% which is quite comparable with the employee's cost to sales of the assessee-company which stands at 4.68%. Therefore, in our view, having regard to the orders of the authorities below, we finds that Keltron group concerns have been rejected by the TPO on the basis of perceptions which are not borne out of the record and do not stand established on the basis of material brought out by the TPO. Therefore, we hold that exclusion of the above concerns was not appropriate for the purposes of benchmarking the international transactions of the assessee. We therefore, hold that the Assessing Officer shall re-examine the matter in the above light. Since we have upheld the plea of the assessee against exclusion of the Keltron group companies, the plea regarding Gujarat Poly Avx is rendered infructuous. Thus, the assessee succeeds on this aspect.”
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While giving effect to the order of Tribunal, the Assessing Officer again rejected Keltron Resistors and Keltron Electro Ceramics (Keltron Group Companies) as comparables. In First Appellate proceedings the Commissioner of Income Tax (Appeals) following the order of Tribunal directed the Assessing Officer to include Keltron Resistors and Keltron Electro Ceramics (Keltron Group Companies) in the list of comparables. We do not find any reason to interfere with the well reasoned findings of the Commissioner of Income Tax (Appeals) which are in line with the order of Tribunal. Accordingly, ground No. 2 raised in the appeal by the Revenue is dismissed.
In ground No. 3 of the appeal the Revenue has assailed allowing of proportionate adjustment and working capital adjustment. We observe that the assessee in earlier appeal for the impugned assessment year before the Tribunal had raised this issue. The Co-ordinate Bench of the Tribunal allowed assessee’s claim by holding as under : “25. An alternative plea has been raised by the assessee to the effect that if at all any transfer pricing adjustment has to be made, the same be computed with reference to the value of international transactions with its AEs alone and not on the total turnover of the assessee. In this context, we find that the objective of the transfer pricing mechanism is only to examine the ALP of the international transactions as contained in sec. 92B(1) of the Act. Therefore, it is meant to arrive at income of international transaction alone in terms of section 92 of the Act and therefore, the plea of the assessee that the transfer pricing adjustment, if any, be made to the total income of the assessee should only be with reference to international transaction of the assessee with AEs and not with reference to the total turnover has to be upheld. The said plea is hereby upheld which is also in line with the decision of the Tribunal in the case of Dy. CIT Mumbai Vs. M/s. Starlite (2010) (133 TTJ 425 (Bom), and T Two International Pvt. Ltd., Tara Jewels Exports Pvt. Ltd. Tara Ultimo Pvt. Ltd. Vs. ACIT (2008) (122 TTJ 957) (Mum). Therefore, on this aspect, the assessee succeeds.”
However, the Assessing Officer failed to comply with the order of Tribunal while giving effect and hence rejected assessee’s claim of
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adjustments. In First Appellate proceedings the Commissioner of Income Tax (Appeals) allowed assessee’s claim with respect to proportionate adjustment and working capital adjustment by observing as under : Proportionate Adjustment “2.4.7 Apart from other legal provision prohibiting proportionate adjustments conceptually proportionate adjustment is not desirable, because it pre- supposes that the net margin in AE and non-AE transaction is same, which ordinarily are not the same. However, in facts like that of the Appellant, where it not possible to work out the profitability of AE and no-AE segment of the tested party as well of the comparable companies, the adjustment will have to be restricted to the value of the international transaction as Section 92 requires income to be determined on value of the international transaction. Though proportionate adjustment is not desirable, preferable and law does not permit further adjustment to adjustment, in my view. It may have to be granted to the assessee in facts like above as the law does not expect the person to do impossible (lex non cogitd impssibilia). In In State of Rajasthan v Shamsher Singh 1985 (Supp) SCC 416 the Supreme Court held that a person should not be deprived of justice for not doing a particular thing, which he was not capable of doing. Accordingly, the learned AO is directed to grant the adjustment proportionately on value of international transactions in compliance with the directions of the honourable ITAT. Working Capital Adjustment 2.5.3 I have considered the facts and objection of the learned TPO. I have held that working out segmental profitability accounts in the facts such as that of the Appellant is not possible. Accordingly, I direct the learned AO to examine the computation of the working capital adjusted operating margin furnished by the Appellant and re-work the operating margin, if necessary, in accordance with the method in example given in 'Annexure' to Chapter 3 of the OECD Transfer Pricing Guidelines, 2010. As far as use of PLR is concerned, the learned AO is directed to use the data of the PLR either from the source of State Bank of India or Reserve Bank of India.”
The ld. AR has further brought to our notice that the Hon’ble Bombay High Court in the case of Commissioner of Income Tax Vs. M/s. Thyssen Krupp Industries India Pvt. Ltd. in Income Tax Appeal No. 2201 of 2013 decided on 2nd December, 2015 has considered the issue held that adjustment in respect of international transactions should be restricted to only transactions with AEs. Transactions with independent third parties are outside the preview of adjustments.
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We do not find any error in the order of Commissioner of Income Tax (Appeals) in allowing assessee’s claim of proportionate adjustments and working capital adjustment. No material has been placed on record by the Revenue controverting the findings of Commissioner of Income Tax (Appeals). Accordingly, we uphold the well reasoned findings of Commissioner of Income Tax (Appeals) and dismiss ground No. 3 of the appeal.
The ground No. 4 is general in nature, hence, requires no adjudication.
In the result, the appeal of Revenue is dismissed.
Order pronounced on Thursday, the 20th day of December, 2018.
Sd/- Sd/- (डी. करुणाकरा राव/D. Karunakara Rao) (ववकास अवस्थी / Vikas Awasthy) ऱेखा सदस्य / ACCOUNTANT MEMBER न्याययक सदस्य / JUDICIAL MEMBER ऩुणे / Pune; ददनाांक / Dated : 20th December, 2018 RK आदेश की प्रयिलऱवऩ अग्रेवषि / Copy of the Order forwarded to : अऩीऱाथी / The Appellant. 1. प्रत्यथी / The Respondent. 2. आयकर आयुक्त (अऩीऱ) / The CIT(A)-IT/TP, Pune 3. 4. The DIT (TP/IT), Pune ववभागीय प्रयतयनधध, आयकर अऩीऱीय अधधकरण, “बी” बेंच, 5. ऩुणे / DR, ITAT, “B” Bench, Pune. गाडड फ़ाइऱ / Guard File. 6. //सत्यावऩत प्रयत // True Copy// आदेशानुसार / BY ORDER,
यनजी सधचव / Private Secretary, आयकर अऩीऱीय अधधकरण, ऩुणे / ITAT, Pune.