DEPUTY COMMISSIONER OF INCOME-TAX,, PUNE vs. M/S. TETRA PAK INDIA PVT. LTD.,, PUNE

आदेश / ORDER

PER VIKAS AWASTHY, JM :

The assessee in ITA No. 635/PUN/2016 has assailed the assessment order dated 29-01-2016 passed u/s. 143(3) r.w.s. 144C(13) of the Income Tax Act, 1961 (hereinafter referred to as “the Act”) for the assessment year 2011-12. The Revenue in ITA No. 665/PUN/2016 has filed cross appeal against the aforesaid assessment order.

ITA No. 521/PUN/2017 by the assessee is directed against the assessment order dated 30-01-2017 passed u/s. 143(3) r.w.s. 144C(13) of the Act for the assessment year 2012-13.

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Since, the issues involved in all these appeals are similar, these appeals are taken up together for adjudication and are being disposed of vide this common order.

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2.1 To benchmark international transactions the assessee applied Transactional Net Margin Method (TNMM) as the most appropriate method. The Profit Level Indicator (Operating Profit/Sales) of the assessee and comparables for Packaging solutions segment and Processing solutions segment was computed by assessee as under : Particulars Operating Average margin of operating margin the assessee of comparables International transactions pertaining to 11.35% 6.49% the packaging solutions segment International transactions pertaining to 16.85% 7.94% the processing solutions segment

The assessee followed aggregation approach to benchmark its international transactions. However, the Assessing Officer bifurcated international transactions into various segments viz. Straws segment, Capital Equipment segment, Packaging Material segment and Import of Packaging Material segment.

2.2 The Transfer Pricing Officer (TPO) accepted TNMM applied by assessee in respect of substantial international transactions entered into by the assessee. However, in respect of small portion of packaging material segment, the TPO held CUP to be most appropriate method. The TPO thus, made following upward adjustment. Trading Segment Packaging Material Traded Rs.3,96,69,788/-. Import of Straws Rs.3,53,24,572/-. Import of Capital Equipment Rs.12,80,72,077/-. Rs.20,30,66,437/-. (A) Manufacturing Segment Rs.14,99,10,572/-. (B) Total Rs.35,29,77,009/-. (C) = (A+B)

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Thereafter, the Assessing Officer passed draft assessment order making additions/disallowances on following counts : i. Adjustment on International Transactions Rs.35,29,77,009/-. ii. Provision for warranty expenses Rs.8,43,35,166/-. iii. Bad debts written off Rs.71,38,611/-. iv. Disallowance u/s. 40a(i) Rs.9,44,43,764/-.

Aggrieved by the additions/disallowances made in draft assessment order, the assessee filed objections before Dispute Resolution Panel (DRP). The DRP vide directions dated 17-12-2015 deleted the adjustments made by TPO and accepted assessee’s aggregation method for determination of ALP of international transactions. In so far as the other additions/disallowances made by Assessing Officer the same were upheld by the DRP. Based on the directions of DRP the Assessing Officer passed assessment order dated 29-01-2016 against which, both, the assessee and the Revenue are in appeal.

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/DRP erred in not allowing the above claim of bad debts u/s.36(1)(vii) r.w.s 36(2) of the Income Tax Act, 1961. 2.2 The learned Assessing Officer/ DRP erred in not appreciating that the bad debts written off during the year under assessment satisfied all the conditions prescribed u/s.36(1)(vii) r.w.s. 36(2) of the Income Tax Act 1961. 3.1 The learned Assessing Officer/DRP erred in disallowing Rs.9,44,43,764/- u/s.40(a)(i) based on order u/s.201 passed by the Deputy Director of Income Tax - (IT) - II, Pune wherein the Dy. DIT held that the Appellant Company was required to deduct tax on the basis of Explanations 5 and 6 to Section9(1)(vi) which were introduced by Finance Act, 2012 w.r.e.f. 01.06.1976. The learned Assessing Officer/ DRP erred in not appreciating that an amendment which is introduced with retrospective effect cannot be the basis for disallowance u/s.40(a)(i). The details of Rs.9,44,43,764/- comprise of the following:

Sr. Particulars Amount No. Rs. i. Software License and IT Support 7,51,02,411/- Services ii. Software Licenses 15,34,941/- iii. Payment for Training 72,72,116/- iv. Services- Consultancy 6,71,833/- v. Repairs and Maintenance, 98,62,173/- testing and Technical Consultation Total 9,44,43,764/-

3.2.1 The learned Assessing Officer / DRP erred in holding that the assessee should have deducted TDS u/s.195 on the amount of Rs.7,51,02,411/- paid to AB Tetra Pak Sweden on account of Provisions of IT Support Services on the ground that the said payment made by the assessee company was in the nature of royalties and hence, chargeable to tax in India. 3.2.2 The learned Assessing Officer / DRP erred in not appreciating that the amount of Rs.7,51,02,411/- comprising of the following payments made to AB Tetra Pak Sweden was not covered under Royalties and I or fees for technical services of the DTAA between India and Sweden and that the Appellant Company was not required to withhold tax u/s. 195 on above amounts –

Sr. Nature of Payment Amount (Rs.) No. 1 Payments made for right to 1,12,77,313/- access third party software 2 Payments made for right to use 1,34,81,469/- internally developed software 3 Lease Line Charges 1,77,02,023/- 4 Support services 83,87,425/- 5 Support services for ISP 2,42,54,182/- Total 7,51,02,411/-

3.2.3 The learned Assessing Officer /DRP ought to have appreciated that the payments made to AB Tetra Pak Sweden were on account of

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reimbursement of software license fees and IT support services and since there was no income earned by the said entity, no TDS was required to be deducted on such reimbursement of expenditure. 3.2.4 The learned Assessing Officer / DRP erred in holding that payment for leaseline charges / internet connectivity charges of Rs.1,77,02,023/- (i.e. Rs.1,45,18,198/- and Rs.31,83,825/-) is taxable as "Royalty" under the DTAA as well as per Regular provisions of the Income Tax Act, 1961. He erred in not appreciating that: (a) the payment of lease line charges / internet connectivity charges of Rs.1,77,02,023/- to AB Tetra Pak Sweden was in the nature of reimbursement of expenses and no tax was deductible at source. (b) the payment of lease line charges / internet connectivity charges of Rs.1,77,02,023/- to AB Tetra Pak Sweden was not covered under clause "Royalty and / or Fees for Technical services" of the ADTA between India and Sweden and hence the Appellant Company was not required to withhold tax u/s.195 on above amounts; (c) the payment of lease line charges / internet connectivity charges of Rs.1,77,02,023/- to AB Tetra Pak Sweden were not covered under the definition of 'royalty' in Section 9(1)(vi) of the Act and hence, the assessee company was not required to deduct any TDS on the said payments. 3.2.5 The learned Assessing Officer / DRP erred in not appreciating that the payment of Rs.1,12,77,313/- for right to access third party software application and Rs.1,34,81,469/- for right to access internally developed software application cannot be regarded as "Use of copyright in the software" and hence the said remittances represented business Profits or Commercial Income for AB Tetra Pak Sweden and not "Royalty" under India and Sweden tax treaty and hence, the assessee company was not required to deduct TDS on the said payments. 3.2.6 The learned Assessing Officer / DRP erred in not appreciating that the payment of support service charges to AB Tetra Pak Sweden was in the nature of reimbursement of expenses and no tax was deductible at source. He erred in not appreciating that the above payment was not covered under clause "Royalty and / or Fees for Technical services" of the ADTA between India and Sweden and hence the Appellant Company was not required to withhold tax u/s.195 on above amounts; 3.3 The learned Assessing Officer / DRP erred in not appreciating that the payment of Rs.15,34,941/- for Software Licences was not covered under Royalties and /or Fees of Technical Services of the DTAA between India and Sweden /Saudi Arabia /Singapore and hence the Appellant Company was not required to withhold tax u/s.195 on above amounts. 3.4.1 The learned Assessing Officer / DRP erred in holding that the assessee company should have deducted TDS on payment of Rs.72,72,116/- for training and Rs.6,71,833/- paid for Individual Career Continuation Program without appreciating that the said amount was not taxable in India and accordingly, the assessee was not required to deduct any TDS on the said payments.

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3.4.2 The learned Assessing Officer / DRP erred in not appreciating that in most of the remittances no Technical Knowledge, plan or design is given and hence the amount remitted is not covered under Article "fees for technical services"/"fees for included services" under the respective DTAA's. 3.4.3 The learned Assessing Officer / DRP erred in not appreciating that the remittances towards training were in the nature of reimbursement or alternately charged under cost allocation agreement and that no tax was deductible at source thereon. 3.4.4 Without prejudice to above, the learned Assessing Officer / DRP erred in not appreciating that the remittance of Rs.72,72,116/-included various reimbursements of air fare, hotel and other actual expenses which were grouped under this head and that the said reimbursements had to be excluded for the purpose of working of the tax deductible at source. 3.5 The learned Assessing Officer / DRP erred in not appreciating that the payment of Rs.98,62,173/- for repairs and maintenance, testing and technical consultation was not covered under "Fees for Technical services" of the ADTA and hence the Appellant Company was not required to withhold tax u/s.195 on above amounts. 3.6 The learned Assessing Officer/ DRP erred in not appreciating that the Appellant Company had already made the payment before the retrospective amendments were introduced and thus, it was impossible for the assessee to deduct TDS on such payments and therefore, the assessee submits that no disallowance should be made u/s.40(a). 3.7 The learned Assessing Officer/DRP erred in not appreciating that disallowance of payments to non-residents without TDS violates deduction neutrality non-discrimination clause in DTAA as there is no similar bar for residents as per Merilyn Shipping 136 ITD 23 (SB). 3.8 Without prejudice to above, the learned Assessing Officer /DRP erred in not restricting the addition u/s.40(a)(i) to Rs.5,08,44,199/- (being the difference between Rs.9,44,43,764/- less Rs.4,35,99,565/- being the relief granted by the learned CIT – IT/TP - Pune in the appeal order against the Order u/s.201). 4. The Appellant Company craves leave to add to, alter, amend, modify and / or delete any or all of the above Grounds of Appeal.”

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traded packaging material, import of straws and import of capital equipment were treated as functionally different segments of International transactions of the assessee. 3. Whether the Transaction Net Margin Method adopted by the assessee is the most appropriate method envisaged under 92C (2) of the Income Tax Act, 1961 read with Rule 10C of the Income Tax Rules, 1962 for benchmarking the transaction related to export packaging material to its AE when the transaction could have been benchmarked by using Comparable Uncontrolled Price Method as the most appropriate method.”

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5.1 In respect of ground No. 3 in the appeal by Department, the ld. AR submitted that the TPO has accepted TNMM as the most appropriate method in respect of majority of international transactions. It is only small segment of packaging solutions that the TPO rejected TNMM and applied CUP to benchmark the transactions. The TPO granted ad hoc adjustment of 5% for marketing function and 5% for royalty component without specifying the basis for quantifying 5% ad hoc adjustment. The ld. AR further submitted that the Pune Bench of Tribunal in the case of Amphenol Interconnect India (P.) Ltd. Vs. Deputy Commissioner of Income Tax reported as 53 taxmann.com 83 and in the case of Intervet India (P.) Ltd. Vs. Deputy Commissioner of Income Tax reported as 70 taxmann.com 163 have held that CUP method cannot be applied for small segment of transaction where TNMM has been accepted by TPO for majority of transactions.

6.1 In respect of ground No. 2 relating to disallowance of bad debts written off Rs.71,38,611/- the ld. AR submitted that similar disallowance

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was made in assessment year 2010-11 in assessee’s own case. The Tribunal deleted the disallowance by following decision of Hon’ble Apex Court in the case of T.R.F. Ltd. Vs. Commissioner of Income Tax reported as 323 ITR 397.

6.2 In respect of ground No. 3 relating to disallowance of Rs.9,44,43,764/- u/s. 40(a)(i) of the Act, the ld. AR reiterated the submissions made in exhaustive grounds of appeal. The ld. AR submitted that separate proceedings u/s. 201 were initiated against the assessee. The assessee has filed appeal u/s. 201 before the Commissioner of Income Tax (Appeals) which is still pending for final disposal. The ld. AR prayed that the directions may be given to Assessing Officer to decide the issue following the order of Commissioner of Income Tax (Appeals).

Findings : ITA No. 635/PUN/2016 (A.Y. 2011-12)

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deleted the disallowance in appeal by assessee in ITA No. 1587/PUN/2014 for assessment year 2004-05 decided on 24-08-2017 by observing as under :

“21. Regarding Ground No.2 relating to allowing of warranty provisions it is the submission of the Ld. Counsel for the assessee that the said issue now stands covered in assessee’s own case in favour of the assessee by the order of the Tribunal vide ITA No.1545/PUN/2014 order dated 23-12- 2016. Bringing our attention to Para No.9 of the order of Tribunal (Supra) the allowability of warranty provision was said to have been decided in favour of the assessee in the said paragraph. 22. After hearing both the sides and on perusing the facts of the present case, we now find the decision of the Tribunal given in Para No.9 held the assessee and the issue has to be decided in favour of the assessee. For the sake of completeness of the order, we proceed to extract the same as under : “9. We have heard the rival contentions and perused the record. The issue arising in the present appeal is against the claim of deduction on account of provision made for warranty. The assessee was engaged in the manufacture and sale of processing equipments and filling machines for both dairy and bread processing industries. The machineries which were being manufactured by the assessee were heavy packaging machineries and for the supply of same, the assessee was entering into agreement with the prospective buyers. The copy of one such agreement is placed on record by the assessee at pages 70 to 79 of the Paper Book. As per warranty clause 7 of the agreement, it is provided that the equipment is sold subject to express warranty, wherein the seller warrants that the equipments shall be free from material defects in workmanship, materials and design for period of 12 months from the date of commencement of use or period or 18 months from the delivery, whichever is shorter. It was undertaken by the assessee to repair or replace free of charge to the purchaser any part of equipment which contains a defect or actual refund to the purchaser the portion of price attributable to the defective part. The replacement or repair price were also subject to some warranty for the remainder of original warranty period or six months from the date of repair or installation of replacement part, whichever is shorter. It was agreed that the purchaser had to bear the cost and risk of transport of defective part to the seller, who in turn, had to repair or replace the same on the same terms as the equipment was supplied. As per clause 7.4, the seller i.e. the assessee had no liability for any defect in the equipment because of ordinary wear and tear, misuse or abuse and other conditions. In view of undertaking given by the assessee by way of warranty on the equipment sold by it to the prospective purchasers, the assessee was maintaining a systematic method, wherein the provision was made on account of warranty. In case any part of the warranty was utilized, then the same was so debited or / and the balance on expiry of period of warranty was written back. This method was regularly and systematically followed by the assessee. The CIT(A) has referred to the factual aspects of the case and pointed out that the machinery

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sold by the assessee was in the range of Rs.4-6 crores and there were limited buyers of said machinery. In view of said facts and circumstances, where the assessee was engaged in the manufacture of specialized machinery for packaging and the assessee had warranty clause against supply of the said machinery, then the recognition of application of warranty by way of making the provision in the books of account is accepted accounting practice and such a liability recognized by the assessee is Contingent Liability. Following the ratio laid down by the Hon’ble Supreme Court in Rotork Controls India P. Ltd. Vs. CIT (supra), we hold that the value of Contingent Liability by way of recognizing the warranty liabilities, by making a provision and also following systematic method of its write back and / or utilization is an accepted accounting method adopted by the assessee and the provision made by the assessee is to be allowed as deduction in the hands of assessee. It may be clarified herein that the CIT(A) had rejected the claim of assessee in assessment year 2008-09 observing that the assessee had made provision to the extent of Rs.32.74 crores, whereas none of the provisions made in the earlier years were much utilized. The learned Authorized Representative for the assessee in this regard has clarified that inadvertently, the same was created at Rs.32.74 crores but Rs.31.07 crores was written back and the deduction by way of provision of warranty was claimed only at Rs.1.67 crores. The Assessing Officer had also disallowed sum of Rs.1.67 crores only. In view thereof, we find no merit in the observations of CIT(A) in denying the claim of assessee. Applying the ratio laid down by the Hon’ble Supreme Court in Rotork Controls India P. Ltd. Vs. CIT (supra), the assessee having fulfilled the conditions laid down by the Apex Court, we find merit in the claim of assessee and accordingly, we direct the Assessing Officer to allow the deduction on account of provision for warranty made at Rs.1.67 crores. The grounds of appeal raised by the assessee are thus, allowed.”

Following the aforementioned order of the Tribunal, the Tribunal deleted similar disallowance in respect of provision for warranty in the appeal by assessee in ITA No. 412/PUN/2015 for assessment year 2010-11. No material has been placed on record by Revenue to show any change in facts and circumstances in the assessment year under appeal,

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following the order of Tribunal in assessee’s own case in the earlier assessment years, disallowance in respect of provision for warranty is deleted. Thus, ground No. 1 raised in appeal by assessee is allowed.

“18. On hearing both the parties on this issue, we find that the DRP has not appreciated the fact that the assessee complied with the condition of writing off of the debts in the books of account of the assessee as irrecoverable. They made an elaborate discussion distinguishing the Supreme Court judgment in the case of T.R.F. Ltd Vs. CIT (supra.). In our view, the decision of DRP is required to be reversed on this issue considering the binding of judgments of Hon'ble Supreme Court (supra) read with Section 36(1)(vii) of the Act. Accordingly, Grounds No. 2.1 & 2.2 raised by the assessee are allowed.”

No distinguishable facts have been brought to our notice by Revenue in assessment year under appeal. It is not the case of Revenue that the assessee has not written off bad debts in the books of account. Thus, in view of the law laid down by the Hon’ble Apex Court in the case of TRF Ltd. Vs. Commissioner of Income Tax (supra) and the facts of case, ground No. 2 raised in the appeal by assessee is allowed.

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ITA No. 665/PUN/2016

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of packaging solutions the TPO disputed TNMM and applied CUP for benchmarking international transactions. Further, the TPO granted ad hoc adjustment of 5% for marketing functions and another ad hoc adjustment of 5% for royalty component without specifying the basis for granting such adjustments. Once, the TPO has accepted TNMM as the most appropriate method for benchmarking substantial section of international transactions, the TPO cannot dispute application of the most appropriate method in respect of marginal segment of same transaction. The Co-ordinate Bench of Tribunal in the case of Intervet India (P.) Ltd. Vs. Deputy Commissioner of Income Tax (supra) rejected such approach of TPO in applying CUP for determining ALP on small segment of transaction. The relevant extract of the findings of order of Tribunal reads as under : “9. De hors, the differences discussed above, a perusal of the documents on record show that more than 80% (83.55%) of exports which have been benchmarked by the assessee under TNMM has been accepted by the authorities below. Where substantial part of the exports made to AEs have been accepted by the TPO and the reason has been given by the assessee for the price difference in respect of one product, we find no valid reason for adopting CUP method as the most appropriate method for benchmarking the transactions. The assessee has discharged its onus by giving the detailed reasons for difference in price. Thereafter, the onus is on the TPO to show that the method adopted by the assessee for benchmarking the transactions with AEs is not the most appropriate method. 10. In the case of Amphenol Interconnect India Pvt. Ltd. Vs. DCIT (supra) similar issue had come up before the Co-ordinate Bench of the Tribunal. In the said case the assessee had entered into an international transaction for purchase of raw material and export of finished goods. In the TP study report the assessee had applied TNMM as the most appropriate method for computing the ALP of international transactions. The TPO did not accept the contention of the assessee and applied CUP method. The assessee contended that the difference in the price is on account of volume, geographical locations, time difference, risk factor, functional difference etc. The Tribunal after considering the facts of the case observed as under: “3.3 Considering the above differences, CUP method was claimed to be not the most appropriate method to determine ALP. The suitable adjustments were not possible for the above differences and therefore, the TPO was not justified in adopting CUP for exports of `1.40 Crs. to the AEs specially when in respect of some of the products, the assessee has charged higher price to the AEs as compared to the prices charged to Third Parties. This fact was clarified by the assessee to the TPO by the details as mentioned on page 161 of the

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Paper Book. Considering the above fact, we find that in respect of some of the instances, the assessee has charged higher prices to the AEs as compared to Third Parties. This fact itself indicates that the pricing of the products is influenced by economic circumstances and underlying transactional differences. The assessee has charged higher amount of `16,18,244/- to the AEs in respect of the same products which were also sold to third parties as referred on page 198 of the Paper Book. Considering the above differences, the CUP method was not the most appropriate method since suitable adjustments were not possible to be made for the various differences. The TPO has applied CUP only on the basis of product similarity without appreciating the various other differences as discussed above.”

The Tribunal further held : “4.1 …………According to us, as general proposition, there is no dispute to the fact that the CUP method is a more direct method and hence, it should be preferred over TNMM method when comparable transactions are available. However, it is to be appreciated that in the instant case, where there are various differences like geographical differences, volume differences, different market conditions, etc. etc. in the transactions entered by the assessee with its AEs and the third parties. It is not possible to make suitable adjustments in respect of such differences, hence, CUP method is not the most appropriate method in the instant case. In the course of the hearing, the learned CIT DR submitted that the TPO has rightly adopted CUP for the products in respect of which comparable transactions were available. While raising this contention, the learned CIT DR has not controverted the various differences between the transactions entered into by the assessee with its AEs and third parties. Considering the various differences as discussed above between the two transactions, CUP method is not applicable to the facts of the present case. The learned CIT DR had also stated that the onus is on the assessee to demonstrate that the method selected by it, was most appropriate. There is no dispute regarding this proposition as well. However, once, the TPO has tried to select a different method, the onus is on the TPO to demonstrate that the other method is the most appropriate method. This principle has been laid down by Special Bench in the case of Aztec Software Ltd. [107 ITD 141 (Bang)(SB)].”

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Amphenol Interconnect India Private Limited, we accept ground no. 2 raised in the appeal.”

Thus, in view of the facts of the case and the decisions discussed above, we uphold the findings of DRP/Assessing Officer on this issue and dismiss ground No. 3 raised in appeal by Revenue.

ITA No. 521/PUN/2017 (A.Y. 2012-13)

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3 of appeal by the assessee for assessment year 2011-12 would mutatis mutandis apply to ground No. 7 raised in present appeal. Accordingly, ground No. 7 raised in appeal is allowed for statistical purpose.

Order pronounced on Friday, the 23rd day of March, 2018.

Sd/- Sd/- (अननऱ चतुवेदी / Anil Chaturvedi) (ववकास अवस्थी / Vikas Awasthy) ऱेखा सदस्य / ACCOUNTANT MEMBER न्यानयक सदस्य / JUDICIAL MEMBER ऩुणे / Pune; ददनाांक / Dated : 23rd March, 2018 RK आदेश की प्रनतलऱवऩ अग्रेवर्त / Copy of the Order forwarded to : अऩीऱाथी / The Appellant. 1. प्रत्यथी / The Respondent. 2. 3. The Dispute Resolution Panel, Pune 4. The Pr. Commissioner of Income Tax, Pune ववभागीय प्रनतननधध, आयकर अऩीऱीय अधधकरण, “ए” बेंच, 5. ऩुणे / DR, ITAT, “A” Bench, Pune. गार्ड फ़ाइऱ / Guard File. 6. //सत्यावऩत प्रनत // True Copy// आदेशानुसार / BY ORDER,

ननजी सधचव / Private Secretary, आयकर अऩीऱीय अधधकरण, ऩुणे / ITAT, Pune