DEPUTY COMMISSIONER OF INCOME-TAX vs. CUMMINS INDIA LTD.,, PUNE

The assessee in ITA No.556/PUN/2015, relating to assessment year 2010-11 has raised the following grounds of appeal:- 1. Transfer Pricing Adjustment: 1.1 The learned DCIT pursuant to the directions of the learned DRP erred in law and on the facts and in circumstances of the case in making an adjustment amounting to Rs,31,28,00,000/- to the value of international transactions entered into by the Appellant with its Associated Enterprises in respect of export of 1C engines and components. 1.2 The learned DCIT pursuant to the directions of the learned DRP erred in law and on the facts and in circumstances of the case in disregarding the benchmarking done by the Appellant following "aggregation of transactions" approach using third party comparable companies whilst following "aggregation of transactions" approach himself using internal "comparables". 2. Rejection of benchmarking done by the Appellant: 2.1 The learned DCIT pursuant to the directions of the learned DRP erred in law and on the facts and in circumstances of the case in rejecting the third party comparable companies selected by the Appellant for benchmarking the manufacturing function. 3. Inappropriate comparison of profitability between “export to Associated Enterprises (AEs)” segment and “domestic sales” segment ignoring differences in Functions, Assets and Risks (FAR), differences in products sold and comparison of controlled transactions with controlled transactions

The Revenue in ITA No.574/PUN/2015, relating to assessment year 2010-11 has raised the following grounds of appeal:- 1. Whether the DRP was right in law and on facts in excluding functionally comparable companies only on the basis of turnover in relation to procurement services. 2. Whether the DRP was right in law and on facts in excluding a comparable as functionally non comparable, when on similar facts, the same is considered as functionally comparable in another Assessment Year in relation to procurement services.

We have heard the rival contentions and perused the record. Briefly, in the facts of the case, the assessee was Limited Company and was engaged in the business of manufacture and sale of IC Engines, spares, components, etc. and was also providing services of engines and gensets and consultancy services in respect of power generation and utilization. For the year under consideration, the assessee had entered into various international transactions with its associated enterprises, which aggregated to ₹ 722.27 crores. The details of international transactions are tabulated at page 2 of the order of Transfer Pricing Officer (TPO). The Assessing Officer made reference to the TPO under section 92CA(1) of the Act for determining arm's length price of international transactions undertaken by the assessee. The TPO did not accept the benchmarking done by the assessee of international transactions with its associated enterprises and proposed an upward adjustment of ₹ 32.32 crores on international transactions of export of manufactured IC engines to associated

The assessee is aggrieved by the orders of Assessing Officer/DRP/TPO and is in appeal before us.

We find that the issues raised in the present appeals are similar to the issues adjudicated by the Tribunal in assessee’s own case in various assessment years starting from assessment year 2005-06 to 2009-10. The Tribunal had decided the issues vide various orders which are as under:- 1. ITA No.594/PUN/2013 & CO No.53/PUN/2014, relating to assessment year 2005-06, order dated 29.01.2016; 2. MA No.41/PUN/2016, relating to assessment year 2005-06, order dated 16.08.2017; 3. ITA No.115/PUN/2011, relating to assessment year 2006-07, order dated 03.03.2017; 4. ITA No.1681/PUN/2011, relating to assessment year 2007-08, order dated 21.08.2017; 5. ITA No.2417/PUN/2012, relating to assessment year 2008-09, order dated 30.10.2017 and 6. ITA No.309/PUN/2014, relating to assessment year 2009-10, order dated 15.05.2018

The learned Authorized Representative for the assessee while arguing the present appeal has pointed out that the issues which have been raised in the present appeal are squarely covered by the latest order of Tribunal in assessment year 2009-10, wherein earlier orders of Tribunal have been referred and relied upon to adjudicate the issues.

The first issue which has been raised by the assessee is against rejection of aggregation approach adopted by the assessee while benchmarking its manufacturing activity. The claim of assessee was that both the activities undertaken by it i.e. manufacturing activity and procurement activities were inter-linked and hence, aggregation approach should be applied in order to benchmark international transactions. The second issue which has been raised under transfer pricing provisions was the most appropriate method to be applied, wherein the TPO had compared the profitability of export to associated enterprises undertaken by the assessee with domestic sales. The assessee is aggrieved by two aspects, wherein it has pointed out that because of controlled transactions, no comparison could be made and also because of FAR analysis, the most appropriate method to be applied was TNMM method and the comparison had to be made with external comparables which were applied by the assessee in its TP study report.

The assessee at the outset pointed out that ground of appeal No.1.1 is general in nature and the same merits to be dismissed.

The issue raised vide ground of appeal No.1.2 is against rejection of aggregation approach adopted by the assessee for benchmarking its manufacturing activities.

We find that similar issue arose before the Tribunal in assessee’s own case in earlier years and the Tribunal in assessment year 2009-10 vide paras 8 to 10 has decided the said issue in favour of assessee holding that various activities undertaken by the assessee are to be aggregated for determining arm's length price of international transactions. We are making reference to the findings of Tribunal in paras 8 to 10 vide order dated 15.05.2018. However, the

The next issue raised vide grounds of appeal No.2.1, 3.1 and 3.2 is against most appropriate method to be applied and whether internal comparability was to be made i.e. profitability of export to associated enterprises was to be compared with domestic sales made by the assessee. The said issue has been adjudicated by the Tribunal in earlier years and it has been held that TNMM method has to be applied and the margins of assessee are to be compared with average margins of external comparable companies. The relevant findings of Tribunal vide order dated 15.05.2018 are in paras 11 and 12 and following the same parity of reasoning, we allow the issue in favour of assessee. However, the issue raised vide grounds of appeal No.3.3 to 3.5 on without prejudice basis, in view of our allowing the issue in favour of assessee, would become academic in nature and the same are thus, dismissed.

The next issue raised vide ground of appeal No.4.1 is against treatment of export incentives while computing operating margins of assessee. The Assessing Officer/TPO held the same to be non-operating in nature, hence the same were excluded while computing operating margins of assessee.

The learned Authorized Representative for the assessee pointed out that the issue now stands covered by the ratio laid down by the jurisdictional High Court in CIT Vs. Welspun Zucchi Textiles Ltd. (2017) 391 ITR 211 (Bom). He further pointed out that the said decision of the Hon’ble Bombay High Court has been followed by the Pune Bench of Tribunal in Carraro India Pvt. Ltd. Vs. ACIT in ITA No.1629/PUN/2013 and cross appeal in ITA No.1673/PUN/2013, relating to assessment year 2008-09, order dated 19.01.2017. The learned Authorized

The learned Departmental Representative for the Revenue placed reliance on the orders of authorities below in this regard.

We have heard the rival contentions and perused the record. The issue which is raised vide ground of appeal No.4.1 is against treatment of export incentives and whether the same were operating income or non-operating income. The case of Revenue was that the same are non-operating income and hence, the same are to be excluded from operating margins of assessee. The assessee on the other hand, had included the same as part of its operating income while computing its operating margins for the year under consideration.

We find that similar issue has been decided by the Hon’ble Bombay High Court in CIT Vs. Welspun Zucchi Textiles Ltd. (supra) and it has been laid down that DEPB benefit arising to the assessee therein was operating revenue includable in arriving at operating profit. The said proposition of jurisdictional High Court has been applied by the Pune Bench of Tribunal in Carraro India Pvt. Ltd. Vs. ACIT (supra) and it has been held that export incentives and scrap sales are to be included as operating income. Accordingly, we hold that export incentives are to be considered as operating income of assessee, while benchmarking international transactions of assessee. The ground of appeal No.4.1 raised by assessee is thus, allowed.

Now, coming to ground of appeal No.5.1, wherein the issue which has been raised is against approach of Assessing Officer/TPO in application of net

We find that this issue also stands covered in favour of assessee by the orders of Tribunal in assessee’s own case in earlier years and the relevant findings are in paras 13 and 14 of the order dated 15.05.2018, which are being referred to but not being reproduced for the sake of brevity. Hence, the ground of appeal No.5.1 raised by assessee is allowed.

The next issue vide ground of appeal No.6.1 is against the benefit of variation / reduction of 5% from the arithmetic mean. The said issue has also been decided by the Tribunal in assessment years 2007-08, 2008-09 and 2009- 10. Accordingly, we hold that the benefit of range of +/-5% is available if the variation does not exceed the said tolerance margin. The ground of appeal No.6.1 is thus, allowed.

The next issue raised by the assessee by way of ground of appeal No.7.1 is corporate issue against disallowance made under section 14A of the Act.

The learned Authorized Representative for the assessee herein pointed out that the issue stands covered by the orders of Tribunal in assessment years 2008-09 and 2009-10, wherein the formula adopted by the assessee of allocating the cost to earning of exempt income has been adopted for working out disallowance. He referred to the details placed at page 435 of Paper Book and pointed out that disallowance would work out to ₹ 17,63,981/- under section 14A of the Act.

The learned Departmental Representative for the Revenue placed reliance on the orders of authorities below.

We have heard the rival contentions and perused the record. The assessee during the year under consideration had earned exempt income of ₹ 10.55 crores and the Assessing Officer had made disallowance under section 14A of the Act of expenses relatable to earning of exempt income.

We find that similar issue has been decided by the Tribunal in assessment years 2008-09 and 2009-10 and the relevant findings are in paras 25 and 26 of the order of Tribunal dated 15.05.2018, which are being referred to but are not being reproduced for the sake of brevity. Following the same parity of reasoning, we hold that disallowance under section 14A of the Act is to be restricted to ₹ 17,63,981/-. Hence, the ground of appeal No.7.1 is partly allowed.

The next issue raised is against disallowance made under section 35(2AB) of the Act.

The learned Authorized Representative for the assessee pointed out that in earlier years, the expenditure incurred by assessee on R&D facility was disallowed and even weighted deduction claimed under section 35(2AB) of the Act was disallowed. However, in the year under consideration, the Assessing Officer had allowed expenditure incurred but has not allowed weighted deduction claimed under section 35(2AB) of the Act. He referred to the decision of Tribunal in assessment year 2009-10 in this regard and pointed out that Tribunal has directed that expenditure needs to be allowed in the hands of assessee after considering the issue and various judicial decisions on the same.

The learned Departmental Representative for the Revenue on the other hand, placed reliance on the orders of authorities below.

We find that the similar issue of claim of weighted deduction under section 35(2AB) of the Act arose before the Tribunal in assessment year 2009- 10, wherein the issue has been decided by the Tribunal by deliberating upon the same in paras 33 to 46 and concluded as under:- “45. The issue which is raised in the present appeal is that whether where the facility has been recognized and necessary certification is issued by the prescribed authority, the assessee can avail the deduction in respect of expenditure incurred on in-house R&D facility, for which the adjudicating authority is the Assessing Officer and whether the prescribed authority is to approve expenditure in form No.3CL from year to year. Looking into the provisions of rules, it stipulates the filing of audit report before the prescribed authority by the persons availing the deduction under section 35(2AB) of the Act but the provisions of the Act do not prescribe any methodology of approval to be granted by the prescribed authority vis-à-vis expenditure from year to year. The amendment brought in by the IT (Tenth Amendment) Rules w.e.f. 01.07.2016, wherein separate part has been inserted for certifying the amount of expenditure from year to year and the amended form No.3CL thus, lays down the procedure to be followed by the prescribed authority. Prior to the aforesaid amendment in 2016, no such procedure / methodology was prescribed. In the absence of the same, there is no merit in the order of Assessing Officer in curtailing the expenditure and consequent weighted deduction claim under section 35(2AB) of the Act on the surmise that prescribed authority has only approved part of expenditure in form No.3CL. We find no merit in the said order of authorities below. 46. The Courts have held that for deduction under section 35(2AB) of the Act, first step was the recognition of facility by the prescribed authority and entering an agreement between the facility and the prescribed authority. Once such an agreement has been executed, under which recognition has been given to the facility, then thereafter the role of Assessing Officer is to look into and allow the expenditure incurred on in-house R&D facility as weighted deduction under section 35(2AB) of the Act. Accordingly, we hold so. Thus, we reverse the order of Assessing Officer in curtailing the deduction claimed under section 35(2AB) of the Act by ₹ 6,75,000/-. Thus, grounds of appeal No.10.1, 10.2 and 10.3 are allowed.”

The issue arising in the present appeal is squarely covered by the orders of Tribunal. The assessee during the year under consideration has also claimed weighted deduction claim under section 35(2AB) of the Act and the issue raised stands squarely covered by the orders of Tribunal in earlier years in the hands of assessee. Applying the same parity of reasoning, we direct the Assessing Officer to allow weighed deduction under section 35(2AB) of the Act to the assessee. The grounds of appeal No.8.1 and 8.2 raised by assessee are thus, allowed.

The ground of appeal No.9.1 is against initiation of penalty proceedings is premature and the same is dismissed.

Now, coming to the appeal of Revenue. Both the issues raised by Revenue against benchmarking of procurement support services would become academic in nature once it is held that aggregation approach adopted by the assessee is to be accepted. Accordingly, we dismiss the grounds of appeal No.1 and 2 raised by the Revenue.

The learned Authorized Representative for the assessee pointed out that in assessment year 2011-12 also, the issues raised by assessee and the Revenue are same, however, the grounds of appeal differ. So, we proceed to decide the grounds of appeal raised in assessment year 2011-12 on the premise that the issues raised are same to the issues raised in earlier year and our decision in assessment year 2010-11 would apply mutatis mutandis.

The ground of appeal No.1.1 raised by assessee is general and the same is dismissed.

The ground of appeal No.2.1 raised by assessee is similar to ground of appeal No.1.2 raised in earlier year i.e. against aggregation approach to be adopted. We have already decided the issue in favour of assessee, hence ground of appeal No.2.1 is allowed.

The issue raised in ground of appeal No.3.1 is against rejection of TNMM method applied by the assessee and comparison of profitability of export to associated enterprises and domestic sales, by the Assessing Officer. The assessee has raised grounds of appeal No.3.1 and 4.1 in this regard and

The assessee in ground of appeal No.5.1 has raised the issue of treatment of export incentive as operating income which was also raised in earlier year vide ground of appeal No.4.1. Following the same parity of reasoning, we hold that export incentive is to be included as part of operating income while computing operating margins of assessee.

The issue in ground of appeal No.6.1 raised by assessee is against approach adopted by Assessing Officer in application of net profit to cost as PLI as against the approach of assessee of net profit to sales. Similar issue was raised vide ground of appeal No.5.1 in assessment year 2010-11 and following the same parity of reasoning, the issue is decided in favour of assessee.

The issue in ground of appeal No.7.1 is similar to the issue raised in ground of appeal No.6.1 i.e. benefit of +/- 5% range and we hold that the said benefit of variation is available if the adjustment does not exceed the said tolerance margins.

The issue raised in grounds of appeal No.8.1 and 8.2 is against disallowance of expenses under section 14A of the Act. The assessee in assessment year 2010-11 has raised similar issue vide ground of appeal No.7.1. The learned Authorized Representative for the assessee pointed out that details

The issue in grounds of appeal No.9.1 and 9.2 against claim of weighted deduction under section 35(2AB) of the Act is similar to grounds of appeal No.8.1 and 8.2 raised in assessment year 2010-11. Following the same parity of reasoning, we direct the Assessing Officer to allow weighted deduction under section 35(2AB) of the Act.

The assessee vide ground of appeal No.10.1 has raised the issue of short grant of TDS to the assessee by the Assessing Officer. The assessee has moved rectification application dated 16.05.2012 which has not been disposed of till date by Assessing Officer. Accepting the prayer of assessee, we direct the Assessing Officer to dispose of said application as soon as possible within short period and re-compute tax liability in the hands of assessee.

The ground of appeal No.11.1 against levy of interest under section 234A of the Act is consequential and hence, the same is dismissed.

The ground of appeal No.12.1 against initiation of penalty proceedings is premature and hence, the same is dismissed.

The Revenue has raised grounds of appeal No.1 and 2 in assessment year 2011-12 which are against benchmarking of procurement support services provided to associated enterprises. We have already decided the issue of aggregation approach to be adopted in favour of assessee, wherein the

In the result, both the appeals of assessee are partly allowed and both the appeals of Revenue are dismissed.