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Income Tax Appellate Tribunal, DELHI BENCH ‘I-1’, NEW DELHI
ORDER
Per N. K. Saini, AM:
This is an appeal by the assessee against the order dated 29.09.2011 passed by the AO u/s 144C r.w.s. 143(3)/154 of the Income Tax Act, 1961 (hereinafter referred to as the Act).
Following grounds have been raised in this appeal: “1. That on the facts and in the circumstances of the case and in law, the order passed by the Ld. Assessing Officer ("Ld. AO") under section 143(3) read with section 144C of the Act is bad in law.
2. That the reference made by the Ld AO suffers from jurisdictional error as the Ld AO has not recorded 2 Philip Morris Services India SA any reasons in the draft assessment order based on which he reached the conclusion that it was 'necessary or expedient' to refer the matter to the Additional Director of Income Tax, Transfer Pricing Officer-II(1), New Delhi ('Ld TPO') for computation of the Arm's Length Price ('ALP'), as is required under section 92CA(1) of the Income Tax Act, 1961 ('the Act').
3. That on the facts and in circumstances of the case and in law, the Ld. AO erred in assessing the returned income of the appellant of Rs. 1,14,47,127 at Rs. 1,28,46,321 on the directions of Learned Dispute Resolution Panel ("Ld. DRP") under section 144Cof the Act.
4. That on the facts and in the circumstances of the case and in law, the Ld. DRP erred in directing the Ld. AO to determine the arm's length mark up for the Market Support Service segment after including certain comparables ( IDC India Limited and Empire Industries Limited) which were not contemplated/ proposed by the Ld. TPO/ Ld. AO in the draft order passed by the Ld. AO under section 144C(1) of the Act. It is therefore prayed that the directions issued by the Ld. DRP under section 144C of the Act regarding inclusion of such comparables which were not proposed in the draft assessment order should be treated as invalid, bad in law.
5. That without prejudice to Ground No. 4, the comparables included by the Ld. DRP i.e. IDC India Limited and Empire Industries Limited are not comparable to the appellant in terms of functions performed, assets employed and risks assumed; 3 Philip Morris Services India SA Without prejudice to Ground No.4 and 5 6. That the Ld. AO/ TPO grossly erred in making an upward adjustment to the operating margin of the Service Segment of the appellant, by applying arm's length margin arrived by him at OP/TC of 12.25% as against 5% earned by the appellant and in doing so has grossly erred in; 6.1. arbitrarily excluding on frivolous grounds, certain companies selected by the appellant on a scientific basis, even though they are comparable to the appellant in terms of functions performed, assets employed and risks assumed to arrive at the final set of comparable companies to determine the arm's length price. 6.2. denying the benefit of risk adjustment by completely ignoring the business/ commercial reality that since the appellant is remunerated on an arm's length cost plus basis i.e. it is compensated for all its cost plus an agreed mark up, the appellant undertakes minimal business risks as against comparable companies that are full fledged risk taking entities and instead carried out its own risk analysis of the appellant on the basis of conjunctures and surmises. 6.3. denying the benefit of (+/-)5% range mentioned in the proviso to section 92C(2) of the Act while computing the arm's length markup. 6.4. disregarding judicial pronouncements in India in undertaking the TP adjustment.
4 Philip Morris Services India SA 6.5. On the facts and in the circumstances of the case and in law, the Ld. AO erred in initiating penalty proceedings under section 271(1)(c) read with section 274 of the Act. 6.6. not appreciating that none of the conditions set out in section 92C(3) of the Act are satisfied in the present case; 6.7. disregarding the ALP as determined by the appellant in the Transfer Pricing ('TP') documentation maintained by it in terms of section 10D of the Act read with Rule 10D of the Income-tax Rules, 1962 ('Rules') as well as fresh search; 6.8. disregarding multiple year/ prior years' data as used by the appellant in the TP documentation and holding that current year (i.e. FY 2006-07) data for comparable companies should be used despite the fact that the same was not necessarily available to the appellant at the time of preparing its TP documentation That the above grounds of appeal are independent and without prejudice to each other. That the appellant reserves its right to add, alter, amend or withdraw any ground of appeal either before oral the time of hearing of this appeal.”
3. The facts of the case in brief are that the assessee filed the return of income on 29.10.2007. Subsequently, the revised return was filed on 04.03.2009 declaring total income at Rs.1,14,47,127/-. In the revised return the assessee offered 5 Philip Morris Services India SA prior period income and also claimed expenses on account of trade claim and prior period expense. The case was selected for scrutiny. The assessee is a branch office of the Philip Morris Services India S.A. incorporated in Switzerland and was engaged in import and distribution of Marlbore Brand of cigarette in India. It also provided marketing support services to its various group companies. Besides this, it was also involved in the export of tobacco leaves to its group companies. During the course of assessment proceedings, the AO noticed that the assessee was involved in the following international transactions with its Associated Enterprises (AEs): S. No. Nature of transaction Value of transaction
1. Export of Tobacco leaves 2,68,49,013
2. Purchase of Cigarettes 5,63,95,830
3. Provision of representation and 2,86,11,905 logistics/marketing support services
4. Cost reimbursement 1,43,96,888
4. The AO referred the matter to the TPO for examining the aforesaid international transactions at arm’s length price. The TPO vide his order dated 15.10.2010, made an adjustment of Rs.14,74,461/- in the computation of arm’s length price of marketing sales support services. The AO pointed out that the assessee had choosen not to submit its submissions on merit. He, therefore, made the aforesaid addition to the income of the 6 Philip Morris Services India SA assessee. The AO also added prior period expenses of Rs.44,66,420/-. The assessee raised the objection before the DRP wherein the addition of Rs.44,66,420/- on account of prior period expenses was directed to be reduced and on the transfer pricing issues, the DRP observed that though in this year the TPO or the taxpayer had not selected the comparable M/s Empire Industries and IDC India Ltd. but these were to be included since these were selected in earlier year and there was no significant change in the function performed, therefore, the same to be included in the list of comparables.
5. Now the assessee is in appeal. The ld. Counsel for the assessee restricted his arguments to the issues raised in Ground Nos. 4 & 5 and submitted that these issues are covered by the decision of the ITAT in for the assessment year 2006-07 in assessee’s own case vide order dated 26.08.2016. He made the reference to para 2.5 at page nos. 14 to 16 of the order dated 26.08.2016 and stated that the ITAT in the preceding year has directed to include the comparable M/s Agrima Consultants International Ltd. and to exclude the comparable M/s IDC India Ltd. and M/s Empire Industries Ltd. It was contented that since the facts for the year under consideration and the preceding year are similar, therefore, by following the earlier order dated 26.08.2016 of 7 Philip Morris Services India SA this Bench of the ITAT for the preceding year in assessee’s own case, the same course to be adopted. It was stated that if the aforesaid company i.e. M/s Agrima Consultants International Ltd. is included and another two companies i.e. M/s IDC India Ltd. and M/s Empire Industries Ltd. are excluded the average margin of the comparables will be within ±5% range and no adjustment is required to be made on account of arm’s length price.
6. In his rival submissions the ld. DR although supported the order of the DRP/AO but could not controvert the aforesaid contention of the ld. Counsel for the assessee.
We have considered the submissions of both the parties and carefully gone through the material available on the record. It is noticed that similar issue was involved in the earlier year in preferred by the assessee before this Bench of the ITAT which is evident from the findings given in para 2.5 at page no. 6 of the order dated 26.08.2016 which read as under:
“2.5 The issue before us is regarding inappropriate rejection/inclusion of certain companies in the final list of comparables which are as under:
8 Philip Morris Services India SA i) The assessee has disputed rejection of following companies: a) Capital Trust Ltd. b) Agrima Consultants International Ltd. The assessee has also disputed inclusion of following companies being; a) IDC India Ltd. b) Empire Industries Ltd. (Trading & Indenting Segment)”
In the present case, it is clear that the assessee in the year under consideration also disputed the inclusion of the same companies which were involved in the earlier year but asked for inclusion of only one company i.e. M/s Agrima Consultants International Ltd. in the list of the comparable. On the issue as to whether these companies are to be included/excluded, the relevant findings have been given by this bench of the ITAT at pages no. 14 to 16 of the order dated 26.08.2016 which read as under: “4. Agrima Consultant International Ltd.: This company was included by the assessee and excluded by Ld. TPO on the basis that this company is showing a negative economic trend. Ld. A.R. submitted that the turnover of this company is Rs.1.05 crores while the assessee has a turnover of Rs.3.18 crores. Ld. A.R. submitted that from the annual accounts placed at pages 51-55, the company was carrying on with the activities of preparation of feasibility report in respect of cement grinding plant.
9 Philip Morris Services India SA 4.1 Ld. A.R. submitted that this activity carried on by the comparable company is akin to the market support services provided by the assessee and merely because there is negative trend in the economy of the company, cannot be excluded from the lists of comparables. The segment details in respect of the feasibility report must be taken into consideration. The authorities below have not brought on record any functional dissimilarity between this company and that of the assessee. Since the nature of services rendered by this company was similar to that of the assessee, we uphold the inclusion of this comparable to the final list.
IDC (India) Ltd.: This comparable has been selected by Ld. TPO which has been objected by the assessee. Ld. A.R. submitted that this company is functionally not similar with that of the assessee. He submitted that the activities performed by this company is more of the knowledge process and requires extremely skilled personnel for the same. The company is also into research and survey activities including a very high level management consultancy. The assessee has placed reliance upon the decision of Hon'ble Delhi High Court in the case of Rampgreen Solutions Pvt. Ltd. Vs CIT in wherein the Hon'ble Court has held that where the tested party is not a KPO service provider, an entity rendering KPO services cannot be considered as a comparable for the purpose of TP analysis. He also placed reliance upon the decision of this Tribunal in the case of Microsoft Corporation India Pvt. Ltd. VS DCIT in I.T.A. No. 5766/Del/2011 wherein this company has been characterized as an information technology, research and advisory firm. Further, it 10 Philip Morris Services India SA has been held that his company earns its income in the form of research and survey. 5.1 We have perused the above details placed in the Paper Book and the judgements relied upon by the Ld. A.R. It is also observed from the functional profile that this company is in the knowledge process outsourcing unit and cannot be compared with the back office support services carried by the assessee. Respectfully following the ratio laid down by Hon'ble Delhi High Court in the case of Rampgreen Solutions Pvt. Ltd. Vs CIT (supra), we accordingly reject this company from the list of comparables.
Empire Industries Ltd: This company has been included by the TPO which has been objected by the assessee for the reason that it is engaged in the distribution and sale support of highly technical machines and pharmaceuticals. Ld. A.R. submitted that this company is engaged in the trading and indenting of industrial and medical equipments and machine tools, therefore, cannot be recorded as a comparable with that of the assessee. The assessee has placed reliance on the decision of Bangalore Tribunal in the case of Cisco Systems India Pvt. Ltd. Vs DCIT in I.T.A. No. 271/Bang./2014. 6.1 We have perused the annual report of this company place at pages 33-50 of the Paper Book. It is observed that this company earns its primary source of income from manufacturing, trading and indenting activities, therefore, it cannot be a comparable with the market support services carried out by the assessee. We are, therefore, of the considered opinion that this company has to be excluded from the list of comparables.”
11 Philip Morris Services India SA 9. So respectfully following the aforesaid referred to order dated 26.08.2016 in for the assessment year 2006-07 in assessee’s own case, we direct the AO to include M/s Agrima Consultants International Ltd. and exclude M/s IDC India Ltd. and M/s Empire Industries Ltd. from the list of the comparables and then work out the average mean of OP/TC percentage and if it is found that the assessee’s margin is within the range of ±5% then no adjustment is required to be made on account of arm’s length price. As regards to the other grounds, the contention of the ld. Counsel for the assessee was that if Ground Nos. 4 & 5 are decided in favour of the assessee, these may be treated as academic in nature, we order accordingly.
In the result, appeal of the assessee is allowed. (Order Pronounced in the Court on 15/03/2017)