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Income Tax Appellate Tribunal, “J” Bench, Mumbai
Before: Shri Shamim Yahya (AM) & Shri Ramlal Negi (JM)
O R D E R Per Shamim Yahya (AM) : This appeal by the assessee is directed against the order’s of the assessing officer passed under section 143(3) read with section 92CA(3) read with section 144C(13) of the I.T.Act dated 31.1.2017 pertaining to assessment year 2012-13 pursuant to the direction of the learned dispute resolution panel order dated 20.10.2016.
The grounds of appeal read as under Based on the facts and circumstances of the case, Supermax Personal Care Private Limited (hereinafter referred to as 'the Appellant') respectfully craves to prefer an appeal against the assessment order issued by the Assistant Commissioner of Income-tax (LTU)-1, Mumbai (hereinafter referred to as the 'Assessing Officer') under section 143(3) read with section 144C(13) in pursuance of directions of the Dispute Resolution Panel- 2 and order of Joint Commissioner of Income Tax, Transfer Pricing-4(1), Mumbai (hereinafter referred to as the 'learned TPO') on the following grounds, each of which are without prejudice to one another:
2 Supermax Personal Care Private Limited On the facts and in the circumstances of the case and in law, the learned AO/ learned TPO on fact and in law has:
Addition on account of transfer pricing adjustments General
erred in making an adjustment of INR 33,66,72,501 to the total income of the Appellant under Section 92CA(3) of the Act on account of adjustment in the arm's length price of the international transaction of sale of raw materials and goods.
2. erred in determining the Assessee's total income at INR 52,02,32,300 as against the returned income of INR 18,35,59,790 disclosed in the revised return filed.
Rejection of functional and economic analysis undertaken by Appellant
3. erred rejecting the functional and economic analysis undertaken by the Assessee in accordance with the provisions of the Act read with the Income-tax Rules, 1962 ('the rules') in respect of the impugned international transaction of sale of raw materials and goods.
Inappropriate rejection of comparable companies adopted by Appellant
4. erred in arbitrarily rejecting the following companies adopted as comparable by the Appellant:
i. Jocil Ltd; and ii. Treet Corporation Ltd.
Inappropriate acceptance of non-comparable companies
5. erred in accepting the following functionally different companies as comparable to the Assessee, without appreciating that such companies are not comparable to the Assessee in terms of function performed, assets employed and risk undertaken:
i. Laser Shaving India Pvt Ltd; ii. Hindustan Unilever Limited (personal care segment); iii. Proctor and Gamble Hygiene and Health Care Ltd; iv. Gillette India Ltd (grooming segment); and v. Colgate-Palmolive (India) Ltd.
Inappropriate rejection of segmental accounts submitted by the Appellant
3 Supermax Personal Care Private Limited
6. without prejudice to the above, erred in not considering margin of the Assessee as per segmental profit and loss account related to export sales.
Considering prior period item as operating in nature
7. without prejudice to the above, erred in considering the prior period expenses (included in employee benefits and other expenses) of INR 1269 lacs as operating expenses for the current year.
Economic Adjustment
8. without prejudice to the above, appropriate economic adjustment should be granted to the Assessee for differences such as working capital employed by the Assessee vis-a-vis comparable companies.
Flexibility of +/- 5% as per section 92C(2j of the Act
9. without prejudice to the above, erred in computing the arm's length price by not considering the +/- 5% variation from the arm's length price permitted to the Assessee under the provision of Sec 92(2) of the Act.
Penalty proceedings under section 271(1)(c) of the Act
10. erred in initiating penalty proceedings under section 271(1)(c) of the Act without appreciating the fact that the Appellant has not furnished any inaccurate particulars of income.
Corporate tax grounds Levy of interest under section 234A of the Act
erred in levying interest of Rs 13,21,630 under section 234A of the Act without appreciating that the return of income was filed within the specified due date.
Excess levy of interest under section 234B of the Act
erred in computing interest under section 234B of the Act at Rs 6,80,35,642, instead of Rs 6,59,93,320, resulting in excess interest levy of Rs 20,42,322.
Excess levy of interest under section 234C of the Act
4 Supermax Personal Care Private Limited 13. erred in levying interest under section 234C of the Act on the assessed income without appreciating that interest under section 234C is leviable on the returned income.
The above grounds of appeal are independent and without prejudice to each other. The Appellant craves leave to add, alter, vary, omit, substitute or amend the above grounds of appeal, at any time before or at the time of hearing of the appeal, so as to enable the Honorable Members to decide this appeal according to law.
Brief facts of the case are that assessee is engaged in the business of manufacturing shaving products that is razor and razorblades. The international transaction entered by the assessee with its associated enterprises were sale of packing material purchase of packing material sale of razorblades, sale of machinery etc which were intrinsically linked and were clubbed together for benchmarking analysis. The assessee has adopted TNMM as the most appropriate method for comparable analysis. The op/oc of the assessee was 10.39%. The assessee compared its operating margin against six comparable whose mean of the margin came to 10.6%.
In view of the above assessee submitted that’s transactions are at arm’s- length. The transfer pricing officer proceeded to amend the list of comparables and finally came with the list whose operating margin had a mean of 20.59%. The assessee in this regard submitted that it has a margin of 19.80% on its exports. For this purpose assessee submitted segmental data relating to its domestic and export business. However the transfer pricing officer noted that the said segmental data is not audited. He further observed that the basis of apportionment of expenses has not been detailed. He observed that appropriate allocation keys have not been used by the assessee to allocate the common expenses in the two segments. Hence the transfer pricing officer held that assessee’s contention to consider the export segment is rejected and entity level margins of the assessee was considered to find the arm’s-length price of international transaction. Hence comparing with the assessee’s operating
5 Supermax Personal Care Private Limited margin of 10.39% the assessing officer proceeded to make adjustment of rupees 35,46,18,610.
Up on assessee’s objection in this regard the learned dispute resolution panel noted that the allocation keys have not been explained before them during the course of proceedings before them. DRP noted that the assessee has claimed that even if expenses are allocated to both domestic and export segment on the basis of turnover, the net margin earned by the assessee would fall within +/- 5% range as per section 92C(2). However the dispute resolution panel held that they were not inclined to accept such a proposition advanced by the assessee for the reason that not all expenses are in the nature of common expenses which can be a apportioned on the basis of turnover. It further held that for the apportionment of the expense proper allocation keys are required to be used to ascertain the profit margin of the respective segment. Hence the dispute resolution panel rejected the assessee’s objection. Against this order that assessee is in appeal before us.
We have heard both the counsel and perused the records. Leaned counsel of the assessee submitted that firstly there is no mandatory requirement for submitting audited segmental accounting. Nevertheless he submitted that even if the common expenses are allocated on the basis of whatever basis the operating margin of the assessee for the export segment would compare favourably with the mean of the operating margin of the comparables as selected by the TPO. Hence he submitted that authorities below have totally erred in rejecting the assessee’s submission on the ground that segmental account is not audited.
Per Contra learned departmental representative would not disputed the proposition that even if the common expenses are allocated on the basis of whatever allocation key chosen the operating margin of the export segment of the assessee would compare favourably with that of the comparables selected by the transfer pricing officer. However the learned departmental
6 Supermax Personal Care Private Limited representative in this regard submitted that if this proposition is accepted the matter may be set aside to the transfer pricing officer who would then compare the profit margin of the export segment of the assessee to the profit margin of the comparable companies since only likes can be compared in transfer pricing proceedings. He submitted that it would not be proper to compare the profit margin of export segment of the assessee with the profit margin of the entity level business of comparables as submitted by the assessee/ TPO.
In rejoinder to the above learned counsel of the assessee submitted that learned departmental representative is trying to totally make out a new case and improve upon the order’s of the authorities below. He submitted that it was never a case of the transfer pricing officer or even that of the dispute resolution panel that the export segment of the assessee is not comparable with the comparables selected by the transfer pricing officer. We find that nowhere the authorities below have objected in this regard. The only objection was that segmental accounts were not audited and that proper allocation keys were not submitted. However this has been duly countered by the learned counsel of the assessee by submitting that allocating the common expenses to the export segment by whatever key the result would compare favourably with the arithmetic mean of the operating margin of the comparable’s selected by the transfer pricing officer. In this regard learned counsel of the assessee placed reliance upon the decision of ITAT in the case of ACIT Vs. Maersk Global Services Centre (I) P. Ltd. (16 taxmann.com 4) for the following proposition :- “we are unable to accept the contention of the Id. DR for excluding certain cases not rejected by the TPO but which in her opinion did not pass the test comparability. It is evident that Departmental Representative has the duty to defend the order of the Assessing Officer while arguing the appeal filed by the Revenue, He is fully competent and free to support the reasoning of the Assessing Officer from any other angle so as to put forward a strong case of the Revenue, There is a marked distinction between supporting order of the AO/TPO by the Departmental Representative on one hand and 7 Supermax Personal Care Private Limited finding flaws in the order of the AO/TPO in an attempt to show that the AO/TPO failed to do what was required to be done by him. In our considered opinion if the learned Departmental Representative is allowed to fill in the gaps left by the AO/TPO it would amount to conferring the jurisdiction of the CIT u/s 263 to the Departmental Representative, which is not permitted by the statute. Let us take another situation. Suppose a particular deduction is permissible on the cumulative satisfaction of three conditions. The AO examines the case and finds the very first condition as tacking. Without examining the fulfillment or otherwise of the other two conditions, he rejects the claim, in that case if such first requirement is subsequently found to be fulfilled in the appellate proceedings, the Departmental Representative can very well point out to the tribunal that the other two conditions were a/so not fulfilled. By so contending the DR cannot be said to set up a new case, Rather it would amount to supporting the view point of the Assessing Officer on the question of deduction. But in no circumstance the Departmental Representative can be allowed to take a stand contrary to the one taken by the AO/TPO”. Learned Counsel of the assessee submitted that this decision has been upheld by Hon'ble Jurisdictional High Court in ITA No. 692/2012.
Per Contra learned departmental representative submitted that the reliance by the learned counsel of the assessee for this decision was not appropriate in this regard he referred to the decision of honourable Delhi ITAT in the case of Summarised India private limitedSwarovski (I) Pvt. Ltd. Vs. DCIT in ITA No. 3472/Del/2010.
In rejoinder learned counsel of the assessee in this regard submitted that the said ruling was pronounced under different fact pattern, wherein the Assessee has undertaken allocation on an adhoc basis without there being any parameter to justify the rationality of such allocation. Hence, it was submitted to the Hon'ble ITAT that the said ruling is not applicable to fact pattern of the Assessee's case, since in the case of the Assessee the expenses are allocated on judicially recognised ratios like sales and production.
8 Supermax Personal Care Private Limited 11. Up on careful consideration we find ourselves in agreement with the submissions of the learned counsel of the assessee. The assessee has submitted that the margin of its export segment compares favourably with the comparables selected by the TPO. This has been rejected by the transfer pricing officer on the ground that segmental accounts are not audited. It has further been held by the authorities below that proper allocation keys of common expenses between export and other segment have not been provided. In this connection assessee has submitted that if the common expenses are allocated by applying any of the keys the operating margin of the export segment would compare favourably with the operating margin of the comparables. This proposition has not at all been rebutted by the authorities below. The learned departmental representative also could not dispute the above proposition. However learned departmental representative has tried to make out a new case by making a submission that the matter may be set aside to TP. This in fact tantamounts to submission that the transfer pricing officer has not acted properly inasmuch as he has not compared the export segment profit margin of the assessee with similar export segment margin of other comparables . In this regard we agree with the learned counsel of the assessee that learned departmental representative is trying to make out an altogether new case. Authorities below objected to comparability of assessee’s export segment with the comparable selected by the TPO only on account of their observations regarding absence of proper allocation key. It was never their case that there is lack of comparability. Learned departmental representative is well within his rights on supporting the order’s of the authorities below. However he cannot argue that the transfer pricing officers action is incomplete and therefore the issue needs to be set aside so that the transfer pricing officer can be given a second innings .Such a view was rejected by the ITAT in the case of Maersk Global Services Centre (I) P. Ltd.(supra) above, which was duly upheld by the honourable jurisdictional High Court.
9 Supermax Personal Care Private Limited 12. In the background of aforesaid discussion and precedent we find cogency in assessee’s submission that the operating margin of the export segment of the assessee can be compared with the profit margin of the comparables selected by the transfer pricing officer by any allocation key selected. The TPO is directed to examine the veracity of this submission and delete the adjustment on account of arm’s length price, if the result compares favourably.
In the result assessee’s appeal stands partly allowed Order has been pronounced in the Court on 7.6.2019.