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Income Tax Appellate Tribunal, DELHI BENCH “I-1” NEW DELHI
Before: SHRI S.V. MEHROTRA : & SHRI KULDIP SINGH :
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH “I-1” NEW DELHI BEFORE SHRI S.V. MEHROTRA : ACCOUNTANT MEMBER AND SHRI KULDIP SINGH : JUDICIAL MEMBER Asstt. Yr: 2009-10 AND & 1239/Del/2015 Asstt. Yrs: 2010-11 & 2011-12 DHV Global Engineering Vs. DCIT International Taxation, Center BV Noida. 14 Block-1, SDF, Noida, Special Economic Zone, Noida. PAN: AACCD 0804 G ( Appellant ) (Respondent) Appellant by : Shri Ajay Vohra Sr. Adv. Shri Neeraj Jain Adv. Ms. Deepika Agarwal Respondent by : Shri Amrendra Kumar CIT(DR) Date of hearing : 18/01/2016. Date of order : 24/02/2016. O R D E R PER S.V. MEHROTRA, A.M:
The captioned appeals, preferred by the assessee, are directed against separate assessment orders of the AO u/s 143(3) read with section 144C of the Income-tax Act, 1961, relating to AYs 2009-10, 2010-11 & 2011-12.
2 ITA 2300/Del/2014- 1238 & 1239/Del/2015 2. Brief facts of the case are that the assessee company is a branch office of DHV Global Engineering Centre BV (DHV BV) originally incorporated in Netherland. The assessee company has also registered cum membership certificate renewed upto 31.05.2010 issued by Joint Development Commissioner, NSEZ Noida recognizing the assessee as unit in SEZ. The assessee focuses on carrying out distant engineering activities in the nature of I.T. enabled services (lTeS) and performs the following activities for its Associated enterprise DHV BV -engineering of civil, roads and structural objects, mapping activities which can be:
GIS activities and editing and conversion of various data formats, application development and other IT enabled services as required from time to time by DHV.
Further, as per the Master Services Agreement, the assessee was to provide following services to its AEs:
“DHV India shall render services in the field of: - Engineering (calculation and drafting) of civil, roads and structural objects. - Mapping activities which can be: GIS activities and editing and conversion of various data formats. - Application development. - Other IT-enabled services as required from time to time by DHV BV.
3 ITA 2300/Del/2014- 1238 & 1239/Del/2015 4. During the year under consideration the assessee had entered into following international transactions:
S. No. Nature of transaction Amount Method 01 Provision of IT enabled 6,24,90,811 TNMM business process services
The ALP of international transaction was determined by applying TNM method and the PLI was taken at OP/TC. The PLI of the company was arrived at 16.60% of cost, whereas the weighted average of comparables was 18.56%. Ld. TPO, however, determined the arithmetical mean of PLI by considering various comparables at 37.72% and, accordingly, adjustment of Rs. 1,28,63,457/- was directed to be made.
Ld. DRP confirmed the TPO’s finding.
Ld. Sr. counsel Shri Ajay Vohra pointed out that assessee is a captive BPO and ld. TPO has also treated the assessee as BPO and, accordingly, selected the comparables. However, ld. DRP observed that the assessee provided high end engineering services and GIS services and, therefore, was KPO. Ld. counsel pointed out that assessee did not get an opportunity to rebut the findings of ld. DRP and in order to arrive at the correct functional profile of assessee, it is necessary that full facts are to be taken into consideration. He pointed out that in subsequent year ld. DRP has treated the assessee as BPO, though there was no change in nature of work. He pointed
4 ITA 2300/Del/2014- 1238 & 1239/Del/2015 out that assessee was doing only draftsman work by preparing drawings etc. and, therefore, was low end captive BPO. He submitted that assessee be allowed to file additional evidence in terms of Rule 29 of the ITAT Rules, 1963, in the form of project planning and time utilization sheets regularly shared with partner on a weekly basis and lay out of the work to be carried out by the applicant, assigned by the project manager as predefined packages alongwith emails. The assessee’s application for admission of additional evidence is reproduced hereunder:
“Re: Application for admission of additional evidence in terms of Rule 29 of the Income-tax (Appellate Tribunal) Rules. 1963. DHV-Global Engineering Center BV ("the applicant" or "GEC") is engaged in the business of providing Information Technology Enabled Services ("IT enabled services) to DHV Global Engineering Center B.V., Netherlands ("DHV BV" or "the associated enterprise"). The applicant was set up for the purpose of carrying out low level engineering work for the projects executed in Netherland and other parts of the world. The work done by the applicant includes producing drawings and making calculations based on the predefined formula as per the instructions and under supervision of Expatriate project manager deputed by the associated enterprise for execution of a project. For that purpose, the applicant employed draftsmen to carry out calculations and produce digital maps for the projects to be executed at site. Project Managers employed by the associated enterprise, acts as a design team leader, who have commitment for certain resources hours for defined period of time. For individual projects, a communication and escalation matrix is drawn by 5 ITA 2300/Del/2014- 1238 & 1239/Del/2015 the Project Manager, which acts as a ready reckoner for communication and escalation. Team manager of GEC and Expatriate Project Manager communicates at biweekly predefined time schedule to evaluate the progress of relationship, utilization of resources, training needs and workload forecast. The staff of the applicant are trained by project managers from overseas and training sessions are carried out either in house or by exchange of staff. During the year, GEC carried out the detailing of the part of the projects, assigned by project manager as a predefined package. The project manager overseas would make a package of the work to be executed by the applicant and send work breakdown structure for all stages of design process via emails/ftp transfers. The employees of the applicant, who are mostly draftsman would follow instructions and carry out the assigned tasks as explained in the predefined package. The appellant seeks to place on record the following by way of additional evidence for substantiating the aforesaid services:
1. 1. Project planning and time utilization sheets regularly shared with partner on a weekly basis are enclosed as Annexure 1.
2. Layout of the work to be carried out by the applicant, assigned by the project manager as predefined packages along with emails are enclosed as Annexure 2. PRAYER: It would be appreciated that this is the first appeal before the Hon'ble Tribunal against the impugned assessment order. The DRP arbitrarily held that the applicant is engaged in the business of providing high end engineering services and accordingly, characterized it as a KPO service provider. The applicant in order to rebut the findings of the DRP/TPO, arbitrarily arrived at and to support the arm's length price of international transaction of IT enabled services undertaken with the associated enterprise, has collected the aforesaid additional evidence, which is now placed before the Hon'ble
6 ITA 2300/Del/2014- 1238 & 1239/Del/2015 Bench by way of additional evidence. The DRP in the assessment year 2012-13, too, correctly appreciating the functional profile, held that the applicant is a low end IT enabled service provider (DRP Directions enclosed as Annexure 3). The aforesaid papers and documents placed by way of the present application of additional evidence are material for correctly appreciating the functional profile of the applicant and are relevant for deciding the issue involved in the present appeal. Your Honour's kind attention is invited to the decision of the jurisdictional Delhi High Court in the case of CIT VS. Text Hundred India Pvt. Ltd.: 239 CTR 263. In that case, their Lordships held that Rule 29, permitting the Tribunal to admit additional evidence is made to enable the Tribunal to admit any additional evidence which would be necessary to do substantial justice in the matter. Their Lordships further observed that the various procedures, including that relating to filing of additional evidence, is handmade for justice and justice should not be allowed to be choked only because of some inadvertent error or omission on the part of one of the parties to lead evidence. The relevant observations of the Court are reproduced hereunder: "13. The aforesaid case law clearly lays down a neat principle of law that discretion lies with the Tribunal to admit additional evidence in the interest of justice once the Tribunal affirms the opinion that doing so would be necessary for proper adjudication of the matter. This can be done even when application is filed by one of the parties to the appeal and it need not to be a suo motto action of the Tribunal. The aforesaid rule is made enabling the Tribunal to admit the additional evidence in its discretion if the Tribunal holds the view that such additional evidence would be necessary to do substantial justice in the matter. It is well settled that the procedure is handmade of justice and justice should not be allowed to be choked only because of some inadvertent error or omission on 7 ITA 2300/Del/2014- 1238 & 1239/Del/2015 the part of one of the parties to lead evidence at the appropriate stage. Once it is found that the party intending to lead evidence before the Tribunal for the first time was prevented by sufficient cause to lead such an evidence and that this evidence would have material bearing on the issue which needs to be decided by the Tribunal and ends of justice demand admission of such an evidence, the Tribunal can pass an order to that effect”. (emphasis supplied) Reliance is also placed in that regard on the following decisions: - CIT v. Hewlett Packard India: 314 ITR 55 (Del HC) - CIT v. Chandra Kant Sahu Bhai: 202 Taxman 262 (Del HC) - CIT v. Betterways Finance: ITA 995 of 2009 (Del HC) - Jatia Investment Co v. CIT: 206 ITR 718 (Cal HC) - Electra (Jaipur) Ltd v. IAC: 26 ITD 236 (Del. ITAT) - Y. W. C. A. of India vs IAC: 29 ITD 620 (Del IT AT) Your Honour's attention is also invited to the decision of Mumbai Bench of the Tribunal in the case of UCB India Pvt. Ltd. vs. ACIT, Circle 7(3), Mumbai, 1211T0131, wherein it is held as under: "In all fairness, the assessee should not be pinned down to his submissions in the first round of Transfer Pricing proceedings. It should be appreciated that Transfer Pricing regulations are relatively new provisions and the case does require special consideration. The assessee is free to support his case in any manner it deems fit by filing any additional evidence or document before the AO. Further information may be gathered from the parent company, if possible. Fresh methods may be adopted to prove ALP. Our intention is that, the assessee should not be shut out in the second round of proceedings, on the ground that, certain documents were not filed in the first round or certain method was not adopted original/y." (emphasis supplied)
8 ITA 2300/Del/2014- 1238 & 1239/Del/2015 In view of the aforesaid, it is submitted that the additional evidence placed by the applicant may kindly be admitted and taken into account for disposing the present appeal. In view of the aforesaid and in the interest of justice, it is respectfully prayed that the aforesaid additional evidence may kindly be admitted by exercising the discretion conferred on the Hon'ble Tribunal under Rule 29 of the Income Tax (Appellate Tribunal) Rules, 1963. The applicant trusts that its request shall be acceded to. An opportunity of being heard is prayed for.”
For the sake of brevity annexures are not being reproduced.
Ld. CIT(DR) submitted that assessee has not given any reasons as to why earlier it could not submit all these details. He further referred to page 18 of the assessment order and pointed out that as regards discussion on argument against not understanding the business, it has been observed as under:
“No discussion has been given about the non application of ITeS segment or how it is functionally different from the others in the TP report of. the assessee. Further the assessee has also undertaken the search by using the keywords ITES/BPO/data processing/IT services and consultancy and the TPO also took the same keywords while fresh search. Hence the assessees contention is not accepted.”
Ld. counsel in the rejoinder referred to page 17 of the assessment order and pointed out that AO himself has noted as under:
9 ITA 2300/Del/2014- 1238 & 1239/Del/2015 “The tax payer has applied the filter reject companies that have no operation/no sales. However, the filter is not sufficient. The correct filter would be companies having sales less than five crores. Here, the assessees submission that the company comes up as a startup company is not, accepted as a startup company is an early stage of development concentrating on product development and build up of capitalization. Nearly all start up operates at loss or have no revenue at all. Being newly founded does not itself make a company start up. Further, the assessee is in its fifth, year of operation. From the annual report of the company and TP study it is fairly evident that DHV GEO is not a startup company but is a part of DHV Group, global provider of ITeS engineering services. DHV-GEC focuses primarily on carrying out distant engineering activities in the nature of IT- enabled services for DHV B V. Hence, the assessees contention is not acceptable.”
Ld. counsel submitted that for proper appreciation of nature of assessee’s business, it is necessary that the additional evidence be admitted and the matter restored to ld. TPO to examine the issue afresh.
We have considered the rival submissions and have perused the record of the case. As far as ld. DR’s plea regarding non-production of these documents before ld. TPO is concerned, we find that in the petition filed by assessee, it has referred to the decision of Hon’ble Delhi High Court in the case of CIT Vs. Text Hundred India Pvt. Ltd. 239 CTR 263, wherein it has been, inter alia, held that justice should not be allowed to be choked only because of some inadvertent error or omission on the part of one of the parties to lead evidence. Further, in the case of UCB India Pvt. Ltd. Vs. ACIT Circle 7(3), Mumbai 121 ITD 131, Tribunal took note of the fact that 10 ITA 2300/Del/2014- 1238 & 1239/Del/2015 the transfer pricing regulations are relatively new provisions and, therefore, if certain documents were not filed in the first round or certain method was not adopted originally, then the assessee should not be shut out in the second round of proceedings from producing those documents. Therefore, in order to impart substantial justice to assessee, we admit the additional evidence filed by assessee and restore the matter to the file of ld. TPO for de novo consideration after examining the additional evidence.
In the result, assessee’s appeals stand allowed for statistical purposes.
Order pronouncement in open court on 24/02/2016.