JOTUN INDIA P.LTD,MUMBAI vs. DCIT CIR 3(2), MUMBAI

The captioned appeals by assessee for Assessment Years [AY] 2007-08 to 2009-10 contest separate orders of lower authorities. Since common issues are involved, all the appeals are being disposed-off by way of this common order for the sake of convenience & brevity. , AY 2007-08 2. This appeal contest final assessment order dated 28/10/2011 passed by Ld. Income Tax Officer-3(2)(1) [AO] u/s 143(3) read with Section 144C of the Income Tax Act, 1961 pursuant to the directions of Ld. Dispute Resolution Panel [DRP]. The Heads of effective ground raised in the appeal reads as under:-

Transfer Pricing Adjustment – provision of Sales Support Services – Rs.74,37,000/- 3. Use of Multiple Year Data 4. Benefit of +/-5% 5. Initiation of penalty proceedings 6. General 3.1 Facts in brief are that assessee being resident corporate assessee engaged in trading of decorative paints and sales support services was assessed u/s 143(3) at Loss of Rs.159.90 Lacs after certain Transfer Pricing [TP] adjustment of Rs.246.83 Lacs as against returned loss of Rs.406.73 Lacs e-filed by the assessee on 29/10/2007. The assessee was a 99.85% subsidiary company of Jotun AS, Norway which was a part of Jotun Group. The group was engaged in manufacturing of paints, coatings and powder coatings. The assessee was incorporated during March, 2006 to manufacture liquid paints to be used for coatings in 1126/Mum/2013 Jotun India Private Limited Assessment Years: 2007-08 to 2009-2010 marine, industrial and housing sector. The impugned AY was the first year of commercial operations of the assessee. Since the plant was not set up, the assessee carried out only trading activities and was engaged in providing certain sale support services to its AE in the impugned AY. 3.2 The International Transactions carried out by the assessee with its Associated Enterprises [AE] as reported in Form 3CEB were referred for determination of Arm’s Length Price [ALP] u/s 92CA(1) to Ld. Transfer Pricing Officer [TPO] on 11/12/2009. The international transactions carried out by the assessee during impugned AY and methods used to benchmark the same in its Transfer Pricing Study are listed below:- No. Nature of Transaction Value (In Method crores) Used 1. Purchase of Finished Goods 5.38 RPM 2. Purchase of Fixed Assets 1.20 At Cost 3. Receipt of Sale Support 2.01 TNMM Services 4. Payment for project expenses 1.72 At Cost and technical services 5. Payment of interest on ECB 0.13 CUP The methodology adopted by the assessee for transactions Listed at Serial Number 1 & 5 has been accepted by Ld. TPO and no adjustment has been proposed against these transactions. The TP adjustment against purchase of fixed assets as suggested by Ld. TPO has been deleted by Ld. DRP and it has been submitted that no appeal has been preferred by the revenue against the same. As evident from grounds of appeal, the issue under appeal is related with determination of ALP of project expenses and sales support services. 3.3 The assessee provided sales support services amounting to Rs.2.01 Crores to its AE situated at Singapore to promote its products in 1126/Mum/2013 Jotun India Private Limited Assessment Years: 2007-08 to 2009-2010 India. These services were mostly in the nature of Management Information System [MIS] and forwarding of purchase orders received from third parties. These transactions were benchmarked using Transactional Net Margin Method [TNMM] with Berry Ratio as Profit Level Indicator [PLI]. To work out the segmental results, Ld. TPO apportioned the total cost in the ratio of commission income earned by the assessee to total operating income which has resulted into assessee’s PLI being worked out at (-)25.37% as against PLI of 12% reflected by one comparable. Resultantly, the TP adjustment has been worked out @37.37% of commission income of Rs.2.01 crores which translated into TP adjustment of 74.37 Lacs against the same. 3.4 The second TP adjustment was related with purchase of fixed assets viz. furniture, computers, Air Conditioners etc. from Indian Branch of its Singapore AE. The same has been benchmarked by the assessee on ‘cost’ basis. The assessee submitted that these assets were purchased by Indian Branch for use of assessee and the same has been reimbursed on cost- to-cost basis and further, the same has not been capitalized in the books of Indian Branch. However, for want of requisite evidences, ALP of fixed assets amounting to Rs.78.38 Lacs has been determined as ‘Nil’ and adjustment to that extent was proposed by Ld. TPO. 3.5 The third TP adjustment was related with reimbursement of Project expenses and technical services aggregating to Rs.172.46 Lacs claimed to be reimbursed to its AE by the assessee on cost-to-cost basis. However, for want of evidences, Ld. TPO proposed TP adjustment of Rs.82.96 Lacs in the same.

The Ld. Authorized Counsel for Assessee [AR], drawing our attention to the documents placed in the paper-book, assailed the stand of lower authorities, inter-alia, on the ground of violation of principle of natural justice by submitting that various evidences submitted by the assessee were not properly considered while arriving at the said adjustment. It has further been contended that enhancement has been made by Ld. DRP without providing adequate opportunity of being heard 1126/Mum/2013 Jotun India Private Limited Assessment Years: 2007-08 to 2009-2010 to the assessee in violation of statutory provisions and therefore the matter require reconsideration by lower authorities. Per Contra, Ld Departmental Representative [DR] submitted that the assessee did not file the replies on time and did not cooperate with lower authorities and therefore the adjustment has rightly been made by lower authorities and the same need to be confirmed.

We have carefully heard the rival contentions and perused relevant material on record including documents placed in the paper-book. So far as the adjustment on account of Fixed Assets is concerned, we find that the assessee has benchmarked the same at cost which has been accepted by the revenue and Ld. DRP, after appreciating the evidences submitted by the assessee has deleted this adjustment altogether. It has been submitted before us that no appeal against the same has been filed by the revenue and therefore, the matter has already attained finality.

So far as the adjustment on account of Sales Support Services is concerned, the prime grievance of the assessee revolves around method of cost allocation between trading activity and sales support services. Upon perusal, we find that the assessee, vide its letter dated 18/10/2010 made several submissions to contest the adjustment under this head. The said submissions, in our opinion, are vital to adjudication of this issue since these submissions, besides pointing out certain errors in the computations made by Ld. TPO, contain alternative submissions as to cost allocation and determination of ALP of these transactions. The said submissions have altogether been ignored by Ld. TPO as well as Ld. DRP, since the same, prima facie, has been submitted by the assessee after passing-off of the order by Ld. TPO. In view of the above stated 1126/Mum/2013 Jotun India Private Limited Assessment Years: 2007-08 to 2009-2010 facts and in the interest of justice, we remit this matter back to the file of Ld. AO / TPO for due consideration and re-adjudication in the light of the submissions made by the assessee. Needless to add that ALP of the transactions has to be computed within the framework of statutory provisions and as per methodology provided in Rule 10B. The assessee is directed to substantiate his stand in this regard. Ground No. 2 stands allowed for statistical purposes. 7.1 As submitted by assessee, the project expenses are primarily related with travel expenses of engineers, salary, pension, insurance of the project manager, logistics for importing the material related to the project, etc. stated to be paid by the AE on behalf of the assessee and subsequently reimbursed by the assessee on cost-to-cost basis. The Ld. TPO, while accepting the stand of the assessee, made a TP adjustment of Rs. 82.96 Lacs against the same for want of documentary evidences. The Ld. DRP, altogether taking a different view, enhanced the said adjustment viewing the transactions as part of shareholders’ activities. The aforesaid enhancement has, prima facie, been made without affording adequate opportunity of being heard to the assessee in violation of principle of natural justice. The revenue is unable to controvert the aforesaid fact. 7.2 Proceeding further, we find that no plausible reasoning has been adduced by Ld. DRP while arriving at the conclusion that the expenditure incurred by the assessee was part of shareholders’ activities and would bring benefit only to its AE particularly when the assessee has consistently submitted that the aforesaid expenditure was directly related to the project being set up by the assessee at Ranjangaon, Pune and the 1126/Mum/2013 Jotun India Private Limited Assessment Years: 2007-08 to 2009-2010 same was reimbursed to its AE on cost to cost basis. These expenditure primarily included expenditure towards project management and procurement of material to set up the project. As per settled legal position, we find that the revenue is not to put himself into the armchair of the businessman so as to adjudge the necessity of incurring the expenditure unless it is shown that the expenditure was not at all, required to be incurred for the benefit of the assessee and the assessee, in normal circumstances, would not be willing to pay the same to independent third parties. The aforesaid proposition, known as, benefit test, in our opinion, has been overlooked by the Ld. DRP and therefore, Ld. DRP erred in treating the ALP of the same at ‘Nil’ without demonstrating that the impugned expenditure was exclusively meant to benefit the assessee’s AE and the assessee, under normal circumstances, would not have been willing to pay the same to independent third parties. 7.3 Another aspect to this transaction is that upon perusal of material on record, we find that major part of the project expenses have been capitalized in the Balance Sheet by the assessee as Capital Work-in- progress and the same has not, at all, been claimed by the assessee by way of debit to Profit & Loss Account. It is to be noted that upon completion of the project, fixed asset in the shape of manufacturing plant would come into existence, against which the assessee shall be entitled to claim the depreciation within statutory framework. Therefore, the approach of revenue to add back the aforesaid adjustment to determine the Profit / Loss for the year was clearly fallacious in nature.

By way of Ground No. 3, the assessee has pleaded for use of multiple year data. However, we do not find much force in the same since it is settled proposition and also in terms of Rule-10B(4), single year data of impugned AY has to be given preference to benchmark the transactions as against data of earlier years. This ground raised

In this year, the assessee has been saddled with aggregate TP adjustment of Rs.806.87 Lacs comprising of adjustment against import of finished goods for Rs.415.04 Lacs and adjustment against project expenses for Rs.391.82 Lacs. The issue relating to TP adjustment of project expenses has already been dealt by us in para-10 above.

The finished goods imported by assessee from its AE aggregating to Rs.556.97 Lacs have been benchmarked by him in TP study using Resale Price Method [RPM] as most appropriate method [MAM]. The primary argument to adopt this method was that the assessee act as distributor buying finished goods and selling it in the domestic market without adding significant value to the products. The methodology adopted by assessee, in the opinion of Ld. TPO, was not correct since marketing efforts / costs was a crucial factor to determine the Profit Level 1126/Mum/2013 Jotun India Private Limited Assessment Years: 2007-08 to 2009-2010 Indicator [PLI] of the tested party as well as comparables. The Ld. TPO, in the alternative, adopted Transactional Net Margin Method [TNMM] as MAM with operating profit / operating income as PLI. The assessee’s PLI, thus computed, work out to -29% as against average PLI of 1.53% reflected by seven comparables based on single year data which resulted into impugned TP adjustment of Rs.451.04 Lacs. The same, upon confirmation by Ld. DRP, has been assailed before us. 13. The Ld. AR has justified the adoption of RPM method since the same was MAM keeping in view the nature of activities being carried out by the assessee. It has been submitted that the revenue had no justification to reject the assessee’s methodology and adopt TNMM method to benchmark the same without assigning bringing on record any cogent material to substantiate the same. The Ld. AR has also placed reliance on the rule of consistency by submitting that RPM method to benchmark these transactions has been accepted by the revenue in AY 2007-08 and therefore, the same should be adopted in this year also. Per Contra, Ld. DR submitted that the assessee was not into pure trading activity but dealing in highly sophisticated branded goods. To promote the products, it was incurring heavy marketing expenditure for its AE since the product was at introduction stage in the market and therefore, the aforesaid related costs were factored into gross profit margins earned by the assessee and therefore, RPM method could not be applied under the circumstances since the comparables selected by the assessee may not be operating under the similar business conditions or exposed to same business environment. Our attention has been 1126/Mum/2013 Jotun India Private Limited Assessment Years: 2007-08 to 2009-2010 drawn to the financial statements of the assessee to support the submissions. 14.1 We have given thoughtful consideration to the same. So far as the rule of consistency is concerned, we find that the benefit of the same could not be granted to the assessee since AY 2007-08 was the first year of commercial operations of the assessee and the methodology adopted by the assessee to benchmark these transactions in AY 2007- 08 has been accepted by Ld. TPO without any elaborate discussions in the order u/s 92CA(3). Our conclusion is further supported by the fact that the assessee’s methodology for AY 2009-10 was not accepted by the revenue and Ld. TPO has benchmarked these transactions using TNMM method. However, the TP adjustment on this account has been deleted by Ld. DRP in that year since the adjustment fell within safe harbor of +/-5%. Therefore, to say that the revenue has accepted the methodology as adopted by assessee and therefore the same should be adopted in view of the rule of consistency is not a correct proposition and therefore, the same stand rejected. 14.2 Proceeding further, In our opinion, since Resale Price Method primarily compares Gross Profit Margins earned by the assessee vis-à- vis corresponding margins earned by the comparables and therefore, before applying this method, it becomes imperative to find out that the assessee as well as comparables were exposed to similar business conditions, risks and functions and were operating under similar business environment. This vital fact has not been addressed by either of the representatives or by any of the lower authorities.