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Income Tax Appellate Tribunal, “K” BENCH, MUMBAI
Before: SHRI SAKTIJIT DEY & SHRI RAJESH KUMAR
Aforesaid appeal by the assessee is directed against order dated 16th January 2012, passed by the learned Commissioner (Appeals)–15, Mumbai, for the assessment year 2005–06.
In total, the assessee has raised three effective grounds. Ground no.1 is not pressed, hence, dismissed.
Ground no.2 relates to addition of ` 5,14,71,625, on account of transfer pricing adjustment in relation to manning fees.
2 Wilhemsen Ship Management India Pvt. Ltd.
Brief facts are, the assessee an Indian Company is engaged in the business of sourcing, screening and selecting seafarers and also providing assistance in completing their free joining formalities, etc. The assessee is a subsidiary of Barber International Ltd., Hong Kong, which in turn is fully owned by Wilh Wlhelmsen ASA, Norway. In the year under dispute, the assessee had undertaken international transaction relating to provision of manning services with its Associate Enterprise (A.E) M/s. Barber Ship Management Ltd., Hong Kong. As per the scope of work, assessee recruits seafarers for the vessels owned or managed by its A.E. In the impugned assessment year assessee credited an amount of `. 3,43,50,125/– to the profit and loss account towards fees received from AE towards provision for manning services. Before the Transfer Pricing Officer, though, the assessee claimed the amount received by it from its A.E. to be at arm’s length, however, the Transfer Pricing Officer (TPO) on the basis of material on record found that in assessment year 2002–03, the assessee’s case was compared with M/s. Confidence Shipping Co. Pvt. Ltd. for determining the arm's length price of the fees charged for manning services. The TPO referring to the said comparability analysis done in assessment year 2002–03 also observed that there is no material change in facts and circumstances in the impugned assessment year, hence, he considered the fees charged by M/s. Confidence Shipping Co
3 Wilhemsen Ship Management India Pvt. Ltd. Pvt. Ltd. for manning services as comparable. Further, relying upon the information obtained under section 133(6) Income Tax Act, 1961 (for short “the Act”) from M/s. Confidence Shipping Co. Pvt. Ltd. in assessment year 2002–03, the TPO found that as per the said information M/s. Confidence Shipping Co. Pvt. Ltd. was receiving compensation of U.S. $ 120 per person per month from July 2002 onwards towards rendering the manning services. The Transfer Pricing Officer adopted the said rate as the arm's length rate and proceeded to determine the arm's length price of the manning services provided by the assessee to its A.E. which worked out to ` 8,58,21,750. As the assessee has charged an amount of ` 3,43,50,125, to its A.E. towards provision for manning services, the resultant difference of ` 5,14,71,625 was treated as upward adjustment to the price charged by the assessee. In terms with the adjustment made by the Transfer Pricing Officer, the Assessing Officer completed the assessment under section 143(3) of the Act by adding the said amount. Though, the assessee challenged the addition made on account of the aforesaid transfer pricing adjustment before the learned Commissioner (Appeals), however, the learned Commissioner (Appeals) upheld the addition.
The learned Counsel appearing for the assessee submitted before us that in assessee’s own case for assessment year 2002–03, identical
4 Wilhemsen Ship Management India Pvt. Ltd. issue arose before the Tribunal and while deciding the said issue, the Tribunal has held that the price charged by the assessee to its A.E. towards manning services is at arm's length and accordingly deleted the addition made on account of transfer pricing adjustment. Thus, he submitted, by virtue of the aforesaid decision of the Tribunal the issue stands covered in favour of the assessee.
The learned Departmental Representative has agreed before us that the issue is decided in favour of the assessee by the Tribunal in preceding assessment year i.e., A.Y. 2002–03.
We have considered rival submissions and perused materials on record. From the impugned order of the Transfer Pricing Officer it is evident that on the basis of information obtained under section 133(6) of the Act, in course of transfer pricing proceedings of the assessee for assessment year 2002–03, the Transfer Pricing Officer has applied the rate charged by M/s. Confidence Shipping Co. towards provision of manning services. In fact, the TPO while adopting the rate charged by M/s. Confidence Shipping Co. has categorically stated that there is no material difference in fact involved between assessment year 2002–03 and the impugned assessment year. On a perusal of the order dated 7th February 2018, passed in assessee’s own case by the Tribunal, for assessment year 2002–03 in ITA no.6160/Mum./2010, it is noticed that while deciding identical issue relating to transfer pricing
5 Wilhemsen Ship Management India Pvt. Ltd. adjustment made on fees charged for manning services the Tribunal has deleted the addition holding as under:–
“5. Before the CIT(A) as well as before us, assessee has raised multiple submissions in order to assail the tradition. Such submissions, inter-alia, include the in-appropriateness of considering the data provided by Confidence Shipping Company on account of it being irrelevant, such data being unsubstantiated etc., so however, another pertinent point which has been consistently been pursued by the Appellant is that even if the data provided by Confidence Shipping company of US$ 150 is taken as a valid CUP data, even then the actual charges recovered by the assessee from its associate enterprise works out to be at an arm‟s length price. This has been argued by the assessee, based on the fact, that it has been reimbursed by its associate enterprise of expenses amounting to Rs.6,38,78,901, which has not been factored in the benchmarking analysis by the TPO. In other words, as per the assessee, if the reimbursement of expenses of Rs.6,38,78,901 is considered while determining the arm‟s length price of the international transaction, then the rate charged by the assessee for the manning services comes to US$ 152, which is in excess of the arm‟s length rate of US$ 150 adopted by the TPO. In this context, our attention has been drawn to para 10(xiv) of the Statement of Facts, filed before the CIT(A) which we find appropriate to reproduce as under:- “xiv) The TPO/ITO have also ignored the fact that had the amounts of expenses billed on their principals and the amounts received from their principals by your appellants been considered by the said TPO/ITO properly, they would have observed the bare truth that the amount received/realised by your appellants from their principals was US$ 152.94 as against the US$ 150/- considered by the TPO/ITO, as set out hereunder:- TABLE Sl. Particulars Rupees Rupees No. 1 On Billed basis : 21,697,822 Manning fee included in P&L A/c Add : Exp. Incurred under 63,878,901 85,576,723 current a/c Add : Project exp. Incurred/billed 3,988,466 Total 89,565,189 No. of man months as per TPO 12,213 Therefore, charge per man month 7,334 Exchange rate as per TPO 48.80 Therefore, charge per man month 150.28 in US$ as per BSMI Charge per man month as per 150.00 TPO in US$ Excess received by BSMI in US$ 0.28
6 Wilhemsen Ship Management India Pvt. Ltd.
2 As per TPO/ITO: 89,325,960 Manning fee as per TPO @ US$ 150/- per man month for 12,213 man months 3 On Received basis : 21,697,822 Manning fee included in P&L A/c Add : Expenses Received 69,451,805 Total 91,149,627 91,149,627 No. of man months as per TPO 12,213 Therefore, charge per man month 7,469 Exchange rate as per TPO 48.80 Therefore, charge per man month 152.94 in US$ as per BSMI Charge per man month as per 150.00 TPO in US$ Excess received by BSMI in US$ 2.94 Thus, the TPO/ITO overlooked the fact that the sum charged/realised by your appellants are more by US$ 0.28 per manmonth under the billed method and more by US$ 2.94 per man-month under the receipt method (which was in fact the method considered by the ITO in making the addition of INR 1,583,688/-.)” On this basis, it is sought to be canvassed even if one has to go by the manner in which benchmarking has been carried out by the TPO, even then the transactions of the assessee are at an arm‟s length price taking into consideration the amount of expenses reimbursed by the associated enterprise over and above the fixed rate of payment.
6. On the aforesaid alternate plea of the appellant, the stand of the Revenue is manifested in paras 7 to 7.2 of the order of the CIT(A). The Learned CIT-DR appearing for the Revenue, referred to the order of the TPO in this regard and pointed out that it has been brought out that such expenses have not been debited in the Profit & Loss Account and therefore such amount could not be considered for the determination of the arm‟s length price. In fact, the CIT(A) in para 7.1 of his order also takes a somewhat similar line that assessee should have included such expenses in its Profit & Loss Account so as to enable computation of appropriate mark- up on it. Pertinently, the said observation of the CIT(A) is factually untenable, having regard to the fact that the compensation earned by the assessee for providing Manning services is not based on a cost plus mark-up model but is instead based on a negotiated rate of Rs.2000 per crew per month, as is evident by page 8 of the Paper Book wherein is placed the relevant annexure to the Technical Management and Consultancy Agreement with the associate enterprise.
7 Wilhemsen Ship Management India Pvt. Ltd.
Be that that it may, we have considered the said alternate plea of the assessee and find that the same is potent. The relevant details which we have extracted above, clearly suggest that assessee incurred expenses for providing manning services to the extent of Rs.6,38,78,901 which were reimbursed by its associate enterprise. At the time of the hearing, our attention has also been drawn to the payments terms and conditions annexed to the Technical Management and Consultancy Agreement, which inter- alia, included clause 5 which reads as under:- “5. First Party shall provide free of cost following facilities to the personnel deputed by Second Party and for that purpose reimburse expenses incurred by the Second Party on behalf of First Party. a) Salaries and perquisites of personnel. b) Approriate lodging and boarding facilities. c) Local transportation for due performance of duties and personal use. d) To and fro air passage. e) Medical facilities.” It has been clarified before us, that the reimbursement of the expenses of Rs.6,38,78,901 is governed by above clause 5 of the arrangement with the associated enterprise. Notably, the TPO in page 10 of his order has reproduced the details of expenses reimbursed by the associate enterprise which are on various heads, viz., fish vessel expenses, travelling expenses, port expenses, licence and certification expenses, uniform expenses, training expenses, repair team expenses etc. In fact, in Para (ii) at page 12 of his order, the TPO further records that the amount of Rs.6,38,78,901 “...... are the expenses incurred by the company for rendering the services and should have been shown in the profit & loss account”. The aforesaid finding of the Assessing Officer clearly supports the assertion of the assessee to the effect that the said expenses have been incurred by it in the course of providing the manning service to the associate enterprise, and the same have been recovered from the associate enterprise as reimbursements. We are only trying to highlight the fact that the said expenses are in relation to the „tested transaction‟ and therefore there is no justification in not considering them while computing the arm‟s length price.
10. The plea of the Revenue before us, based on the observation of the CIT(A) that the expenses have not been shown in the Profit & Loss Account, and therefore, it cannot be taken into consideration, is to say the least, avoiding the obvious. Ostensibly, if such expenses were to be debited to the Profit & Loss Account, it would require simultaneous equivalent credit to the Profit & Loss
8 Wilhemsen Ship Management India Pvt. Ltd. Account on account of reimbursements. Ostensibly, if one is to determine the rate charged by the assessee from its associate enterprise per crew per month, it would entail taking into consideration the recoveries by way of reimbursements also; and, as the Tabulation reproduced by us earlier shows that once such recoveries are also factored into the rate charged from the associated enterprise, the rate comes to US$ 150.28 per crew per month and upon comparison with the rate of US$ 150 adopted by the TPO, the amount recovered by the assessee from the associate enterprise compares favourably, and, thus it would obviate the need for any further adjustment to the stated values in order to arrive at the arm‟s length price. Therefore, on this short point, the adjustment sustained by the CIT(A) is found to untenable. We hold so.”
8. There being no material difference in facts relating to the disputed issue in the impugned assessment year, the aforesaid reasoning of the Co–ordinate Bench will apply in full force to the issue raised in the present appeal as well. Therefore, respectfully following the decision of the Co–ordinate Bench in assessee’s own case as referred to above, we delete the addition made on account of transfer pricing adjustment of manning services as made by the Assessing Officer and sustained by the learned Commissioner (Appeals). The grounds raised are allowed to the extent indicated above.
In ground no.3, assessee has challenged the disallowance of unabsorbed depreciation and loss.
At the outset, learned Authorised Representative inviting our attention to Para–6.3 and 6.4 of learned Commissioner (Appeals)’s order submitted that the observations of the first appellate authority is 9 Wilhemsen Ship Management India Pvt. Ltd. factually incorrect. Further, learned Authorised Representative submitted that the related issue arising in assessment year 2004–05 is yet to be decided as the appeal for the said assessment year is still pending. Thus, it was submitted, necessary direction may be given to the Assessing Officer to grant consequential relief after disposal of the appeal for assessment year 2004–05.
The learned Departmental Representative has no objection if the matter is remitted to the Assessing Officer for allowing consequential effect.
Having considered the submissions of the parties we are inclined to restore this issue to the Assessing Officer for granting consequential relief depending upon the ultimate outcome of assessee’s appeal on the issue in assessment year 2004–05. This ground is allowed for statistical purposes.
In the result, assessee’s appeal is partly allowed. Order pronounced in the open Court on 27.04.2018