AVNET INDIA PVT. LTD.,,BANGALORE vs. DCIT, BANGALORE

Per Shri Jason P Boaz, A.M. : These are cross appeals, by the assessee and Revenue, directed against the order of assessment for Assessment Year 2011-12 passed under Section 143(3) r.w.s. 144C(5) r.w.s. 144C(15) of the Income Tax

2 IT(TP)A Nos.196 & 215/Bang/2016 Act, 1961 (in short 'the Act'), pursuant to the directions issued by the Dispute Resolution Panel-1, Bangalore (‘DRP’) under Section 144C(5) of the Act on 19.11.2015. 2. Briefly stated, the facts of the case are as under :- 2.1 The assessee company is engaged in the business of providing marketing services to Avnet Asia Pte Ltd., Singapore (‘Avnet, Singapore’) and Avnet Technology Hong Kong Ltd. (‘Avnet Hong Kong’) for the products of ‘Avnet Group’ of companies in two business segments.

i) Electronic Marketing (‘EM’); and

ii) Technology Services (‘TS’); in which it is also engaged in wholesale trading activities of electronic and computer products.

2.2 The assessee filed its return of income for Assessment Year 2011- 12 on 19.11.2011 declaring loss of Rs.(-) 1,16,51,949. The return was processed under Section 143(1) of the Act and the case was subsequently taken up for scrutiny. In view of the international transactions reported by the assessee in Form 3CEB, the Assessing Officer made a reference to the TPO under Section 92CA of the Act for determining the Arm’s Length Price (‘ALP’) of the international transactions entered into by the assessee with its AEs in the year under consideration. The TPO rejected the assessee's TP Study related to the trading segment of the assessee, performed a fresh TP comparability analysis and vide his order under Section 92CA of the Act dt.30.1.2015 proposed a TP Adjustment of Rs.3,96,87,138 in respect of the international transactions of the assessee in the trading segment. The

3 IT(TP)A Nos.196 & 215/Bang/2016 Assessing Officer concluded the draft order of assessment under Section 143(3) r.w.s. 144C of the Act vide order dt.13.2.2015, wherein the assessee's income was determined at Rs.2,93,51,320; which included the TP Adjustment under Section 92CA of the Act amounting to Rs.3,96,87,138 and disallowance under Section 14A of the Act of Rs.13,16,134.

2.3 Aggrieved by the draft order of assessment for Assessment Year 2011-12 dt.13.2.2015, the assessee filed its objections thereto before the DRP. The DRP issued its directions under Section 144C(5) of the Act on 19.11.2015 allowing the assessee partial relief, by (i) deleting the disallowance under Section 14A of the Act and (ii) the TP Adjustment under Section 92CA of the Act was reduced to Rs.2,15,22,485. Pursuant thereto, the final order of assessment was accordingly concluded under Section 143(3) r.w.s. 144C(5) r.w.s 144C(15) of the Act vide order dt.21.12.2015 wherein the assessee's income was determined at Rs.98,70,536.

3.1 Assessee's Appeal.

The grounds raised in the assessee's appeal are as under :

4 IT(TP)A Nos.196 & 215/Bang/2016

5 IT(TP)A Nos.196 & 215/Bang/2016

6 IT(TP)A Nos.196 & 215/Bang/2016

3.2 Revenue’s Appeal.

The grounds raised in Revenue’s appeal are as under :

7 IT(TP)A Nos.196 & 215/Bang/2016 4. Ground Nos.1 to 4 (Assessee's Appeal) / Ground Nos.1 & 2 (Revenue’s Appeal)

Transfer Pricing Issues.

4.1 During the year under consideration, the assessee entered into the following international transactions as reported in Form 3CEB :-

Transactions Rs. Purchase of trading goods 17,30,89,284 Receipt for provision of services. 31,82,25,703 Reimbursement on account of Equant lease line 9,046 charges. Reimbursement of expense receivable 13,71,153 Reimbursement of expenses payable 21,85,905 Total : 49,48,81,091.

4.2 On a perusal of the TPO’s order under Section 92CA of the Act, it is seen that the TPO except for the assessee's international transactions in the trading segment, no adverse inference has been drawn in respect of all other international transactions entered into by the assessee with its AE.

4.3 Trading Segment.

4.3.1 In its TP Study, the assessee adopted RPM as the Most Appropriate Method (‘MAM’), taking the PLI as Gross Profit / operating revenue and using the Prowess and Capitaline databases, the assessee selected 6 companies as comparable with the average margin at 8.52%, the details of which are hereunder :

8 IT(TP)A Nos.196 & 215/Bang/2016 Sl.No. Name of the Company GP Margin (%) 1 ACI Infocon Ltd. 1.83 2 Adit E-commerce Pvt. Ltd. 16.53 3 Anar Industries Limited 2.48 4 Astech Infotech Pvt. Ltd. 10.27 5 Greenvision Technologies Pvt. Ltd. 19.69 6 Saarc Net Ltd. 0.33 Arithmetic Mean / Average 8.52

Since the assessee's margin at 4.43% was within the + / - 5% range of the average margin of the comparables at 8.52%, the assessee considered its international transactions with its AEs to be at arm’s length. 4.3.2 In the course of proceedings, the TPO rejected the assessee's TP Analysis under RPM, conducted a fresh TP comparability analysis by adopting TNMM as the MAM and rejected all the comparables selected by the assessee. The TPO then selected a final set of 4 companies as comparable to the trading segment of the assessee with an average margin at 5.80%, the details of which are as under :- Sl.No. Name of the Company PLI (OP / Sales %) 1 Bajaj Electricals Ltd. 8.94 2 Birla Power Solutions Pvt. Ltd. 9.19 3 Remi Sales & Engineering Ltd. 4.08 4 K Dhandapani & Co. Ltd. 0.98 Average 5.80

9 IT(TP)A Nos.196 & 215/Bang/2016 4.3.3 The TPO then computed the ALP of the international transactions of the assessee's trading segment, proposing therein a TP Adjustment of Rs.3,96,87,138 as under : - “ Arm’s Length Mean Margin : 5.80%. Taxpayer’s PLI : (-) 23.95% Shortfall : 29.75% Data Amount (Rs.) Arm’s Length Margin 5.80% of Revenue Value of International transactions 17,30,89,284. Arm’s Length Cost (100/129.75 X 17,30,89,284) 13,34,02,146 Excess being adjustment u/s.92CA 3,96,87,138.”

4.3.4 Aggrieved, the assessee preferred its objections before the DRP. The DRP upheld the TPO’s action adopting TNMM as the MAM. However, the DRP rejected all the companies selected as comparables by the TPO as being functionally different from the assessee. The DRP also rejected all the comparables selected by the assessee except Adit E- Commerce Pvt. Ltd. In that view of the matter, the DRP allowed partial relief to the assessee with respect to the TP Adjustment of Rs.3,96,87,138 proposed by the TPO under Section 92CA of the Act. 4.4.1 The learned Authorised Representative of the assessee submitted that the assessee is engaged in trading activity and in this context purchases of goods from its AEs and sells the same to third parties in India. The assessee adopted RPM as the MAM for determining the ALP of international transactions with its AEs. The TPO rejected RPM and adopted TNMM as the MAM, which is upheld by the DRP. The

10 IT(TP)A Nos.196 & 215/Bang/2016 learned Authorised Representative further submitted that the DRP in its directions issued under Section 144C(5) of the Act for the very next year, i.e. Assessment Year 2012-13 has accepted RPM as the MAM. The relevant portion of its directions at page 5 of its order is extracted hereunder :

11 IT(TP)A Nos.196 & 215/Bang/2016

4.4.2 According to the learned Authorised Representative, the above finding for Assessment Year 2012-13 by the DRP (supra) is final as the Revenue has no right to file an appeal against the DRP’s directions. It is submitted that the factual position in the case on hand for Assessment Year 2011-12 is similar to the situation for Assessment Year 2012-13. Therefore, for Assessment Year 2011-12, the year under consideration also, following the principles of consistency, RPM should be adopted as the MAM. In support of its contentions that RPM should be adopted as the MAM, the learned Authorised Representative further placed reliance on the following judicial pronouncements :-

i) Textronix India (P) Ltd. Vs. DCIT [29 taxman.com 288 (Bang)]

ii) Sanyo India Pvt. Ltd. Vs. ACIT (TS – 368 – ITAT – 0214 (Bang) – TP) (A.Y 2008-09);

12 IT(TP)A Nos.196 & 215/Bang/2016 iii) ITO Vs. L’oreal India (P) Ltd. (2012) 24 taxmann.com 192 (Mum). This decision has been upheld by the Hon'ble Bombay High Court in ITA No.1046 of 2012 dt.7.11.2014.

4.4.3 The learned Authorised Representative further submitted that in case RPM is adopted as the MAM, fresh TP comparability analysis will have to be carried out as most of the comparables selected by the assessee as well as those selected by the TPO have been rejected by the DRP.

4.5 The learned Departmental Representative supported and relied on the orders of the DRP.

4.6.1 We have heard the rival contentions, perused and carefully considered the material on record. The assessee is engaged in trading activity. It is settled position by various judicial precedents that in case there is no value addition by the assessee, then RPM is the MAM to compute the ALP. We also find that in the case on hand, RPM has been accepted as the MAM by the DRP for the succeeding Assessment Year 2012-13. When the factual position remains the same, following the principles of consistency, RPM also ought to be adopted as the MAM for the year under consideration also, and we hold and direct accordingly. In this view of the matter, we set aside the orders of the authorities below on TP issues and restore these matters to the file of the TPO who is further directed to carry out a fresh comparability analysis for selecting comparable companies under RPM. Needless to add, the assessee shall be afforded adequate opportunity of being heard and to file details /

13 IT(TP)A Nos.196 & 215/Bang/2016 submissions in this regard which shall be duly considered. Consequently, the assessee's grounds are allowed for statistical purposes.

5.1 In the course of assessment proceedings, the Assessing Officer proposed a disallowance of Rs.13,16,134 under Section 14A of the Act. The assessee filed its objections to this disallowance before the DRP. The DRP after considering the assessee's submissions held that the provisions of Sec. 14A of the Act would not apply since the assessee had not earned any exempt income during the year under consideration. The DRP also observed that the only investment made by the assessee is in Avnet Technology Solutions India Pvt. Ltd., a subsidiary company, in the earlier years and since there was no fresh investment in the year under consideration, therefore the question of incurring administrative expenses does not arise. In that view of the matter, the DRP deleted the disallowance made by the Assessing Officer under Section 14A of the Act.

5.2 The learned Departmental Representative for Revenue was heard in support of the grounds raised and relied on the order of the Assessing Officer in the matter.

5.3 The learned Authorised Representative submitted that in the year under consideration, no exempt income was earned and therefore the question of claiming expenditure in relation to such exempt income will not attract disallowance under Section 14A of the Act. It was further submitted that the assessee's only investment is in Avnet Technology Solutions India Pvt. Ltd., a subsidiary concern, which was made in earlier

14 IT(TP)A Nos.196 & 215/Bang/2016 years as a strategic investment, not with the aim of earning income but for strategic control of the aforesaid subsidiary. Since there was no fresh investment during the year under consideration, therefore the question of incurring any administrative expenditure does not arise. It is contended that the Assessing Officer has made the disallowance under Section 14A of the Act in a mechanical manner without analysiing the facts and circumstances of the case and therefore the disallowance has been correctly directed by the DRP. In support of the assessee's contentions, the learned Authorised Representative, inter alia, has placed reliance on the following judicial precedents :-

i) Cheminvest Ltd. Vs. CIT (2015) 61 taxmann.com 118 (Delhi) ii) Kingfisher Finvest India Ltd. in ITA No.1368/Bang/2012 dt.17.10.2014. iii) Alliance Infrastructure Projects Pvt. Ltd. in ITA No.220 & 1043/Bang/2013 dt.12.9.2014. 5.4 We have heard the rival contentions, perused and carefully considered the material on record. As per the details on record, it is seen that the assessee has not earned any exempt income during the year under consideration. The investment in this regard, in its subsidiary, Avnet Technology Solutions India Pvt. Ltd., is also found to be made in the earlier years and is stated to be a strategic investment. In this factual situation the contentions of the assessee that it has not incurred any expenditure attributable to the earning of exempt income is upheld by the DRP. In our considered view, these factual aspects and the legal precedents cited in this regard (cited supra at (i) to (iii) at para 6.3 of this order) have not been properly considered by the Assessing Officer while

15 IT(TP)A Nos.196 & 215/Bang/2016 making the disallowance under Section 14A of the Act. We, therefore, set aside, the above issue to the file of the Assessing Officer for fresh examination and adjudication keep in view the facts of the case in the matter, our observations thereon and the legal precedents cited. Needless to add, the assessee shall be afforded adequate opportunity of being heard and to file details / submissions which shall be duly considered. Consequently, Grounds 3 to 5 of Revenue’s appeal are allowed for statistical purposes.

Order pronounced in the open court on the 29th day of Nov., 2017.

Sd/- Sd/- (LALIET KUMAR) (JASON P BOAZ) Judicial Member Accountant Member Bangalore, Dt.29.11.2017. *Reddy gp Copy to : 1 Appellant 4 CIT(A) 2 Respondent 5 DR. ITAT, Bangalore 3 CIT 6 Guard File

Senior Private Secretary Income Tax Appellate Tribunal Bangalore.