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Income Tax Appellate Tribunal, DELHI BENCH ‘I’, NEW DELHI
Before: SHRI N. K. SAINI & SMT. BEENA A. PILLAI
Date of hearing : 02.08.2016 Date of Pronouncement : 19.09.2016 ORDER
PER BEENA A. PILLAI, JM:
The present appeal has been preferred by the assessee for the Assessment Year 2009-10.
The brief facts of the case are as under: 2.1 The assessee company was incorporated on 14.08.2007 and is engaged in the business of manufacturing and trading of heavy earthmoving equipments & spare parts.
3. The assessee e-filed its return of income on 27.09.2009 declaring a los of Rs.5,83,22,988/-. Since the assessee had undertaken international transactions with its associated enterprises, a reference was made by the 2 I.T.A.No.2614/Del/2014 Assessing Officer to the Transfer Pricing Officer, New Delhi u/s 92CA(1). S.N. Nature of ALP ALP Difference international determined determined transaction by the by the TPO taxpayer 1 Purchase of 27,14,65,928 machinery, Heavy earthmoving 28,06,78,795 7,28,65,474 machine Purchase of spare parts- 8,20,78,341 2 Selling and 3,45,51,729 nil 2,16,47,269 distribution expenses 3 Commission 1,64,62,067 3,91,68,988 2,27,06,921 income Total adjustment 11,72,19,664 u/s 92CA 3.1 Vide order dated 30.01.2013, the Transfer Pricing Officer (TPO) proposed an addition ofRs.11,72,19,664/- and Assessing Officer vide his draft assessment order after considering the above international transaction, proposed to assessee the taxpayer at an income of Rs.5,88,99,80/- by making following additions/disallowances:
S.No. Particulars Amount 1 Addition on account of transfer 11,72,19.6645 pricing adjustment 2. Disallowances u/s 14A 3007 3.2 Aggrieved by the above action of the Ld. TPO, assessee has filed objections before DRP. The DRP upheld
3 I.T.A.No.2614/Del/2014 the additions made by Ld. TPO. The Ld. A.O. passed the final assessment order following the directions of DRP on 28.02.2014 u/s 143(3) read with Section 144C of the Act.
3.3 Aggrieved by the order of Ld. A.O., the assessee is in appeal before us on the following grounds of appeal:
“1. Transfer Pricing - Purchase of Finished Goods and Spare Parts - Rs. 4,21,66,831/- On the facts and in law, the Hon'ble DRP/ Ld. AO/ Ld. TPO erred in rejecting on arbitrary basis, the Comparable Uncontrolled Price ('CUP') data furnished by the Appellant in relation to purchase of finished goods, violating the provisions of Section 92C of the Income Tax Act, 1961 ('the Act') read with Rule 10C of the Income Tax Rules, 1962 ('the Rules').
2. On the facts and in law, the Hon'ble DRP/ Ld. AO/ Ld. TPO erred in reducing the value of the international transactions of purchase of spare parts by Rs.4,21,66,831/-, violating provisions of Section 92C of the Act read with Rule l0C.
On the facts and in law, the Hon'ble DRP/ Ld. AO/ Ld. TPO, erred in rejecting the Transfer Pricing ('TP') Documentation maintained by the Appellant u/s 92D of the Act read with Rule 10D of the Rules and in carrying out a fresh search for comparable companies by using inappropriate and arbitrary criteria, contravening the provisions of Section 92C(3) of the Act.
On the facts and in law, the Hon'ble DRP/ Ld. AO/ Ld. TPO, erred in violating the provisions of Rule 10B(2) by selecting comparables engaged in manufacturing activities even though the Appellant is engaged in distribution activities during the year.
4 I.T.A.No.2614/Del/2014
On the facts and in law, the Hon'ble DRP/ Ld. AO/ Ld. TPO, has erred in incorrectly computing the net profit margin realized by the Appellant from the international transactions with its AEs at (2.33)% instead of correct NPM of 1.66%, thereby contravening the provisions of the Rule 10B( 1)( e).
6. On the facts and in law, the Hon'ble DRP/ Ld. AO/ Ld. TPO, erred in not allowing appropriate adjustments under Rule l0B to account for difference in working capital of the comparable companies vis-a- vis the Appellant.
Transfer Pricing - Selling and Distribution Expenses - Rs.11,87,489/-:
7. On facts and in law, the Ld. AO/ Ld. TPO, erred in making an addition of Rs.11,87,489/- to the total income of the Appellant alleging that the selling and distribution expenses incurred by the Appellant for its own business in India has resulted in creation of marketing intangible in favour of the AE.
8. On the facts, the Hon'ble DRP/ Ld. AO/ Ld. TPO, erred by considering the amount of Rs.69,93,515/- incurred on exhibition of products of the Appellant as expense towards creation of marketing intangible.
9. On the facts, the Hon'ble DRPI Ld. Assessing Officer/ Ld. TPO, erred by considering the amount of Rs.12,38,525/- incurred on advertisement as expense incurred towards creation of marketing intangible.
10. On the facts, the Hon'ble DRPI Ld. Assessing Officer/ Ld. TPO, erred by considering the amount of Rs.3,91,356/-incurred on printing of product brochures, product leaflets, etc. as expense towards creation of marketing intangible.
1l. On the facts, the Hon'ble DRP/ Ld. Assessing Officer/ Ld. TPO, erred by considering amount of 5 I.T.A.No.2614/Del/2014 Rs.55,631/- incurred towards organizing meetings with the distributors and customers of the Appellant in India as expense towards creation of marketing intangible.
12. On the facts and in law, the Hon'ble DRP/ Ld. Assessing Officer/ Ld. TPO, erred by applying the alleged 'Bright Line Test' for measuring the selling and distribution expenses of the Appellant vis-a-vis a routine distributor, based on his conjectures and surmises. l3. On the facts and in law, the Hon'ble DRP/ Ld. Assessing Officer/ Ld. TPO, erred in adding a mark- up on the aforesaid alleged selling and distribution expenses incurred by the Appellant, characterizing the same as borrowing by the AE, on its own conjectures and surmises.
On the facts and in law, the Ld. Assessing Officer/ Ld. TPO erred incorporating the directions of the Hon'ble DRP by incorrectly computing the mark-up of 14.25% on the aforesaid alleged selling and distribution expenses incurred by the Appellant, instead of 9.20%.
Transfer Pricing - Receipt of Commission Income - Rs.1,65,42,819/-
On the facts and in law, the Hon'ble DRP / Ld. Assessing Officer/Ld. TPO erred in specifying an ad- hoc basis for Computing the commission income of the Appellant, ignoring the facts and circumstances of the case.
Corporate Tax - Section 14A - Rs.3,007/-
On facts and in law, the Hon'ble DRP/ Ld. AO erred in disallowing an amount of Rs.3,007/- under Section 14A.
6 I.T.A.No.2614/Del/2014 The grounds of appeal herein above are independent and without prejudice to each other.”
4. At the outset, Ld. A.R. submitted that all the grounds raised in the present appeal are covered by the order of this Tribunal dated 28.06.2016 passed in assessee’s own case in for the Assessment Year 2010-11. He submitted that here is no change in the functions and activities carried on by the assessee in these years.
5. Ground No.1: In respect of ground No.1, this Tribunal has held in para 21 at pages 43 & 44 as under:
“In view of the above, we hold that: (i) the CUP method is the most suitable method in the case of assessee; (ii) that as the assessee is the sale distributor of its AE in India, the assessee has stated that its price should be compared with the sale of goods which are similar and to independent third parties, but in different geographical locations, therefore it shall be the duty of the assessee to provide the sale data 1 of the A E in terms of sale price of assessee in India as well as other geographical locations, which are claimed to be comparable price; (iii) that the Assessee shall also provide quantitative data of purchase in different geographical locations and other terms and conditions attached to those sales including the terms of payment; (iv) Assessee shall be further duty bound to support its TP STUDY report for robust comparability of the international transaction by providing requisite
7 I.T.A.No.2614/Del/2014 information required by Ld. TPD for determining ALP applying CUP as MAM. (v) on the basis of above data provided, the Ld. TPO/ AO shall compute the ALP using this data applying CUP method. If at any stage, the data is found to be not adequate and the terms and conditions of sales are materially different or that no adjustment can be made to the price, then the AD and TPO shall proceed to determine the ALP in accordance with other methods and then determining the most appropriate method. (vi) Needless to say that the appellant assessee may be granted adequate opportunity of producing data, its own comparability analysis and its own revised TP study report on the basis of CUP method. If there is any difference of opinion then the Ld. TPO shall grant adequate opportunity of hearing to the appellant.
In view of this, ground No.1 of appeal of the assessee is set aside to the file of Ld. A. 0./ TPO with the above directions. In the result, ground No. 1 of the appeal is allowed.” 5.1 Respectfully following the same, we are inclined to set aside the issue to the file of the L. A.O., / TPO with the above referred direction. The assessee is directed to provide requisite information required by Ld. TPO for determining 'ALP applying CUP.
Ground No.2: This issue has been dealt by this Tribunal in para 24 at page 45 as under:
“As we have held in ground No. I that for the purchase of heavy earth moving machines and jig fixtures, the CUP method is most appropriate method and thereafter directed for fresh comparability analysis for the same. As the purchase of heavy earth moving machines is now taken out by applying different
8 I.T.A.No.2614/Del/2014 method and now fresh working of PLI is required to be determined of comparable vis a vis assessee. Therefore, we set aside ground No.2 of the appeal back to the file of Ld. TPD for fresh comparability analysis in terms of our directions contained in Ground No.1.” 6.1 Respectfully following the same, we are inclined to set aside the issue to the file of the L. A.O., / TPO with the above referred direction.
Ground No.3 & 4 : This issue has been dealt with by the Tribunal in para 27 page 46 as under:
However, in view of our decision in ground No.1 of appeal, wherein we have held that CUP method needs to be applied and this objection of the assessee relates to comparability analysis under TNMM method, hence, in view of our direction in ground No.1 of appeal, ground No.4 & 5 of the appeal with respect to fresh search for comparable companies by the Ld. TPO as well as comparison of far analysis becomes infructuous. In view of this, ground No.4 & 5 of appeal are dismissed.
7.1 Respectfully following the same we dismiss grounds No.3 & 4.
Ground No.5: This issue is covered vide para 25 at page 45 of the Tribunal order, wherein it was held as under:
Ground No.3 is against the incorrect computation of net profit margin of the appellant also requires to be set aside to the file of Ld. TPO. In the result Ground No. 2 & 3 of appeal are allowed subject to determining the most appropriate method and re-doing comparability analysis based on that.
9 I.T.A.No.2614/Del/2014 8.1 Respectfully following the same, we set aside this issue to the file of the TPO for computation of net profit margin.
Ground No.6: Ld. A.R. submitted that similar and identical adjustment has been allowed by the DRP in Assessment Year 2010-11 and 2011-12 and the Ld. TPO himself has granted in Assessment Year 2012-13. He placed reliance on the following decisions: i) TNT India (P) Ltd. Vs. ACIT ii) The Income –Tax Officer Vs M/s. Nextlinx India Pvt. Ltd. (I.T.A.No. 454/Bang/2011) iii) Nortel Network Vs ACIT (TS 65-ITAT-2014 (Del.). 9.1 In our considered opinion, the assessee is operating under economic circumstances that warrant working capital adjustment to the margins that is earned by the comparable companies vis-a-vis assessee. We, therefore, direct the Ld. A.O. to allow the adjustment to arrive at the correct margin.
Ground No.7-14: This issue has been dealt in para 32-33 at pages 48 to 68 of the Tribunals order. Reliance has been placed on the decision of Hon'ble Delhi High Court in the case of Maruti Suzuki India Ltd. Vs CIT reported in 381 ITR 117 while setting aside the issue of AMP expenses. Respectfully following the same, we set aside the issue to the file of Ld. A.O. for determining the AMP expenses in the light of the ratio laid down by the 10 I.T.A.No.2614/Del/2014 Hon'ble Jurisdictional High Court in the case of Maruti Suzuki India Ltd. (supra) followed by various other judgements.
Ground No.15: This ground has been discussed in page 70 & 71 of the Tribunal order as under:
We have carefully considered the rival contentions and also perused the orders of the Ld. TPO and Ld. DRP. It is apparent that Ld. DRP as adopted ad-hoc increase of 50% on the commission income being difference between the dealers’ standard price and LIPS transferred price. On perusal of the order of the Ld. DRP, we also do not find any reason recorded by Ld. DRP in stating that 50% of the difference between two prices is adequate remuneration. We reject such an arbitrary approach adopted by the Ld. DRP which did not have any support of nay comparability analysis. We also find that despite the directions of Ld. DRP, the Ld. TPO has changed the dealers’ standard price and LIPS transferred price. In view of the above contrary orders of the lower authorities and confusion on the prices, we set aside the issue of the commission income of the assessee back to the file of Ld. TPO with directions to compute the commission income of the assessee in accordance with the provisions of the Act and supporting calculations and margin (if any), with proper comparables. In the result, we set aside the ground No.15 and 16 to the file of Ld. TPO.
11.1 Respectfully following the same, we set aside the issue to the file of Ld. TPO/A.O. with similar direction to compute the commission income in accordance with law
Ground No.16:
11 I.T.A.No.2614/Del/2014 Considering the smallness, no arguments were pressed on this ground and therefore, this ground of appeal is rejected.
13. Accordingly, the grounds raised by the assessee is disposed off as above.
Order pronounced in the open court on 19th Sep., 2016.