DCIT 7(3), MUMBAI vs. UCB INDIA LTD, MUMBAI

Order u/s.254(1)of the Income-tax Act,1961(Act) लेखा सद� राजे� के अनुसार PER RAJENDRA, AM- Challenging the directions of the Dispute Resolution Panel(DRP)- III,Mumbai,dated 25.11. 2013,the Assessing Officer(AO)has filed the present appeal.The assessee has filed the cross-appeal for the year under appeal. Assessee-company,engaged in the business of manufacturing and trading of pharmaceutical products, filed its return of income on 30.9.2007,declaring total income of Rs.18.47 crores. During the assessment proceedings,the AO found that the assessee had entered into International Transactions(IT.s)with its Associated Enterprises(AE).So,he made a reference to the Transfer Pricing Officer (TPO) to determine the Arm’s Length Price(ALP) of such transactions. After receiving the order of the TPO the AO issued a draft order to the assessee who challenged the same before the DRP.In pursuance of the directions of the DRP,the AO passed an order u/s.143 (3)r.w.s.144C(5) of the Act on 27. 12. 2013. ITA/1218/Mum/2014:

1218/M/14 &1422/M/14-UCB IndiaP.Ltd.

4.During the course of hearing before us,the Deparmental Representative(DR) argued that the TPO had decided the issue after collecting data of MLL,that the benchmarking done by him was based on a valid comparable,that there was no justification for rejecting the method adopted by him. The Authorised Representative(AR) contended that commercial arrangement for services availed could not be questioned while benchmarking international transaction,that TP adjustment could only be made by adopting one of the five methods,that bundled approach under TNMM can be used for benchmark - ing,that while deciding the appeal for AY.s.2002-03 and 2003-04(ITA/428-429/ Mum/2007)the Tribunal had rejected the CUP and considered segmental TNMM as the most appropriate method,that the DRP had rejected the CUP and considered Segmental TNMM as the MAM for the AY.s 06-07,08-09 and 09- 10,that the TPO had not made any adjustment while deciding the subsequent AY.s 2010-11 to 2012-13. 5.We have heard the rival submissions and perused the material before us.We find that the assessee manufactures FDF.s Nootropil for use in the treatment of Central Nervous System Disorders,that it is manufactured from the API Piracetam which is purchased by the assessee only from its AE, that the AE does not sell Piracetam to any other entity in India, that the assessee benchmark -ed its IT.s by following TNMM for computation of ALP, that the Profit Level Indicator(PLI) used by the assessee was operating profit to operating income, that 15 companies were identified as comparables,that the assessee’s PLI was 16.53%, that the arithmetic mean of the comparables was 6.31%,that the updated PLI of the comparables for the relevant period was found to be at 4. 64%, that the TPO held that the TNMM used by the assessee was not a corect method,that it only evaluated the effect of IT.s on profits, that the TPO collected information from MLL,that MLL had imported API i.e.Piracetam from a Chinese manufacturer at average price of 423.53 per Kg as against assessee’s 4 1218/M/14 &1422/M/14-UCB IndiaP.Ltd. import price of 1,334.59 /kg.Accordingly, the TPO computed the difference and proposed an adjustment of Rs.2.58 crores, that the assessee objected that adoption of external CUP,that the DRP directed to delete the adjustment proposed by the TPO.Whether MLL was similar to the assessee as per the FAR analysis was not proved by him.The quality,potency and other parameters of purchase from MLL has not been commented upon.The assessee had given details of sale price of the API.s(same item)sold to Pakistan.But,the TPO decided to ignore the same for the reasons best known to him. Provisions of Rule 10 B of the Rules indicates that a comparison of price of a controlled transaction could be made with a price of a comparable uncontrolled transaction.As per the settled principles governing cup the comparable should be perfect or realistic and if not it should allow reasonable and accurate adjustment.If the method is unable to achieve the said goal,it has to be rejected. In the case of Aztec Software And Technology(107 ITD 141),the Tribunal has dealt the issue of use of CUP method as under: 116. Meaning of Arm's Length Price is given in Clause (ii) of Section 92F as under: 92F (ii)"Arm's Length Price" means a price which is applied or proposed to be applied in a transaction between persons other than associated enterprises in uncontrolled conditions; 117. Thus whatever methodology is chosen for the purpose of determination of arm's length price under section 92C, these criteria, as specified in the Act and the Rules have to form a basis of judging the comparability. Thus there should be a proper analysis of such transactions with respect to, the functions performed, the assets employed and the risk assumed by the respective parties with reference to the transaction in question. This can be termed as functional, asset, risk analysis i.e. FAR analysis. All the three ingredients of FAR have direct bearing on the pricing of products / services. The provision also provides scope for carrying out adjustments in cases where there are some differences or variations to make two transactions commercially comparable, for the purpose of benchmarking. In other words, an uncontrolled transaction selected for benchmarking should be adjusted by employing certain techniques like FAR analysis, to be selected on its peculiar factual matrix, for the purpose of enabling comparison of the same with a controlled international transaction so that the differences or variations are ironed out or minimized. The underlying principle being that only likes can be compared with like. The adjustments are suggested to achieve the object of testing and trying to see if both the parties or / and the transactions are similar or nearly similar. At times even after adjustments, the transaction/s or parties sought to be compared may not be identical or there might not be a possibility of adjustment. This is a very subjective exercise and fact based.

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which are likely to affect the price or cost charge etc in the open market then reasonable and accurate evaluation is to be done and adjustment made. Reliability of uncontrolled transaction would depend upon the degree of comparability. The uncontrolled transaction may not be taken "as comparable" if there are such material differences as can not be adjusted. If data found satisfy above requirements then further proceedings to find the most appropriate method, best suited to the facts and circumstances of a particular international transaction is to be selected. In other words, most appropriate method would be the method which provides most reasonable results having regard to the data available for determining arm's length price. If there are more than one ALPs determined on the application of most appropriate method then arithmetical mean of such prices or price at option of the assessee within 5% variation is to be adopted (Proviso to section 92C(2) ). XXXXXXXXXXXXXXXXX “166. Regarding application of CUP method, OECD reports in para 303 of International Transfer Pricing, 2006 published by Price Water House Coopers, proper adjustment of data has been emphasized as under: The OECD report states that, if it can be used, 'the CUP method is preferable over all other methods'. In practice, this method is often very difficult to apply as it is unusual for multinationals to have the details on appropriately comparable transactions. In response to this, the OECD report suggests that multinationals and tax authorities should take a more adaptable approach to the use of this method, possibly working with data prepared for CUP purposes supplemented by other appropriate methods. The extent of the OECD's support for the CUP method can be seen from the comment that 'every effort should be made to adjust the data so that it may be used appropriately in a CUP method'.

expenses and also to reason out as to why the same was not to be treated as capital in nature.The assessee contended that in the earlier years the AO had disallowed expenditure on e-connectivity by treating the same as acquisition for computer software and therefore, capital in nature, that the said expenditure were neither in nature of expenses for acquisition of software nor was it a capital expenditure. 7.Aggrieved by the order of the AO/TPO the assessee filed objections before the DRP.During the course of hearing before the DRP following additional evidences were produced i)Screen shots of system/modules to which access was provided by the AE to the assessee (pg-121-125 of the PB)ii)Incident Log providing list of company received by the employee of the assessee (PB126-136);(iii) certificate from the auditor,verifying the allocation Key and cost allocated to the assessee(pg.137- 143PB).The DRP sent those evidences to the TPO for examination.During the remand proceedings the assessee made further submissions before him. The assessee filed rebuttal before the DRP after receiving a copy of the Remand Report.The DRP after considering the material available with it, held that the assessee had entered into an agreement with its AE for provisions of various services, that it availed the services to support its Pharma-business in India,that the TPO questioned the need for such services, that the services broadly categorised as e-connectivity charges were necessary for the efficiency of the assessee’s business in India, that it could have arranged for such services directly from third parties,that it chose to centralise the acquisition of the concerned services by the AE,that the cost of such acquisition was allocated to all the entities of the ground based on uses of such services made by each of them,that the pricing of intra group services were fixed as per the OCED guidelines, that the operating margin earned by the assessee was at arm’s length, that the cost allocated to it by its AE would also come within the category of 1218/M/14 &1422/M/14-UCB IndiaP.Ltd. being arm’s length.The DRP directed the AO to delete the TP adjustment of 7.3 crores. 8.Before us,the DR supported the order of the TPO.The AR contended that all the material was made available to the TPO,that there was no doubt about availing of services of the AE,that allocation was on scientific basis. 9.We find that the assessee had entered into agreement with its AE for e- connectivity,dt. 1.1.2004,to received SAP services, e-connectivity services and people soft services,that in the TP study the cost incurred by the AE in providing services by the AE.s to the assessee on the basis of number of users, that the Operating margin of the assessee from all other transaction was higher than of the comparables, that the assessee claimed that transaction was at Arm’s Length because of the cost allocation methodology adopted by AE, that the TPO made an adjustment of Rs.4.73 crores by determining the ALP as Nil, that he held that the assessee did not furnish copy of the agreement or any proof of requesting for such services,that he further held that assessee did not demonstrate as to how the cost benefited it, that it did not provide any proof of any exact number of users and their allocation, that the DRP called for a remand report from the TPO after admitting additional evidence,that DRP directed the TPO/AO to delete the proposed adjustment.We are of the opinion that TPO is not empowered to determine the ALP of an IT at NIL,that in the case under consideration he had made adjustment without adopting any of the prescribed methods.It is a fact that the assessee had satisfied all the necessary tests for the purpose of availing services from its AE.In these circumstances,we hold that the approach of the assessee in benchmarking the transaction under the head availing e-connectivity services under combined transaction approach was at arm’s length.Considering the above,we confirm the order of the DRP and decide ground No.2 against the AO.

ITA/1422/Mum/2009:

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10.Solitary ground of appeal raised by the assessee deals with treating the expenditure incurred for e-connectivity as capital expenditure.During the assessment proceedings,the AO held that the assessee had acquired computer software as transpired from the agreement,that it was a capital expenditure.The DRP held that identical issue was decided in the earlier years against the assessee,that the expenditure incurred by the assessee was capital in nature.Accordingly,the AO held that the expenses have been incurred for acquisition of software and same should be capitalised in the books of account he allowed depreciation @ 60% and treated the expenses as being incurred for acquisition of software.The DRP,while dealing with the objections upheld the order of the TPO. 11.Before us, the AR contended that the expenditure incurred by the assessee enabled the profit-making structure to work more efficiently leaving the source of profit-making structure untouched,that the expenditure was a revenue expend -iture,that fine tuning business operations to enable the management to run its business effectively,efficiently and profitably, leaving the fixed assets untouch - ed would be an expenditure in the nature of revenue even though the advantages might last for an indefinite period. He relied upon the cases of R R Kabel Ltd. (54 SOT 74)Amway India Enterprises (140 TTJ 476) GE Capital Services Ltd (300 ITR 420). 12.We find that the assessee had been incurred e-connectivity charges of Rs. 4. 73 crores, being allocated to it by its parent company annually for providing the e-connectivity and system services i.e. SAP services,e-connectivity services and People Soft services, that the AO held that the said expenditure was incurred for acquisition of software, he futher held that the assessee was not in the business of software and that it was acquiring of the connectivity and information system service to support its pharmaceutical business,that it was a capital expenditure, that he allowed depreciation at the rate of 60% on the said expenditure holding the same as being incurred for acquisition of software, that the DRP following 10 1218/M/14 &1422/M/14-UCB IndiaP.Ltd. the order for the AY.by 2008-09 upheld the finding of the AO that the expenses were being incurred for acquisition of software. Here,we would like to refer to the Para 1.1 of the contract which deals with the scope of contract and reads as under: “UCB shall exit the station performed development work on software or new functionalities which shall be offered to UCB company..” A perusal of the above clause of the agreement makes it clear that the assessee had not get any owner’s right to any software,server, processes or connections, that the assessee would merely receive services related to the software,that it would costs/charges for uses of the leased line separately, that the parent company would provide the services to the assessee as any other party would provide.We find that the allocation of expenses by the parent company has not been challenged by the AO,that the AO and the DRP had not been able to prove that the expenses were not in nature of periodic charges(annual charges) and were one-time costs.It is also a fact that in case of failure to pay the costs it would not be able to have the benefit of the services. cumulatively,all these facts prove that the assessee had neither acquired any enduring benefit nor did any capital asset came into existence.Here,we would like to refer to the case of Asahi Safety Glass Ltd (346 ITR 329) believed by the Honorable Delhi High Court and same reads as under: “It is now somewhat trite to say that the test of enduring benefit is not a certain or a conclusive test which the Courts can apply almost by rote. What is required to be seen is the real intent and purpose of the expenditure and whether the expenditure results in creation of fixed capital for the assessee. It is important to bear in mind that what is required to be seen is not whether the advantage obtained lasts forever but whether the expense incurred does away with a recurring expense(s) defrayed towards running a business as against an expense undertaken for the benefit of the business as a whole. In other words, the expenditure which is incurred, which enables the profit- making structure to work more efficiently leaving the source of the profit-making structure untouched, would be an expense in the nature of revenue expenditure. Fine tuning business operations to enable the management to run its business effectively, efficiently and profitably, leaving the fixed assets untouched would be an expenditure in the nature of revenue expenditure even though the advantage may last for an indefinite period. Test of enduring benefit or advantage would thus collapse in such like cases. It would be only truer in cases which deal with technology and software 1218/M/14 &1422/M/14-UCB IndiaP.Ltd. application, which do not in any manner supplant the source of income or add to the fixed capital of the assessee. The Tribunal, which is decidedly the final fact-finding authority has after noticing the material on record observed that the expenditure was incurred under various sub- heads, which included licence fee, annual technical support fee, professional charges, data entry operator charges, training charges and travelling expenses. The final figure was a consolidation of expenses incurred under these sub-heads. The Tribunal rightly came to the conclusion that none of these resulted in either creation of a new asset or brought forth a new source of income for the assessee. The Tribunal classified the said expenses as being recurring in nature to upgrade and/or to run the system. In the background of the aforementioned findings, it cannot be said that the expenses brought about an enduring benefit to the assessee. The AO was perhaps swayed by the fact that in the succeeding financial year, i.e., 1997-98 (asst. yr. 1998- 99), the amount spent was large. First of all, the extent of the expenditure cannot be a decisive factor in determining its nature. …. the rationale supplied by the AO in support of its order which found resonance in submissions of the counsel for the Revenue is, flawed and, hence it would have to be rejected. What the assessee acquired through AA was an application software which enabled it to execute tasks in the field of accounting, purchases and inventory maintenance. The fact that the application software would have to be updated from time to time based on the requirements of the assessee in the context of the advancement of its business and/or its diversification, if any, the changes brought about due to statutory amendments by law or by professional bodies like the ICAI, which are given the responsibility of conceiving and formulating the Accounting Standards from time to time, and perhaps also, by reason of the fact that expenses may have to be incurred on account of corruption of the software due to unintended or intended ingress into the system—ought not give a colour to the expenditure incurred as one expended on capital account. Given the fact that there are myriad factors which may call for expenses to be incurred in the field of software applications, it cannot be said that either the extent of the expense or the expense being incurred in close proximity, in the subsequent years, would be conclusively determinative of its nature. The AO has erred precisely for these very reasons……. The contention raised by the counsel for the Revenue that in the books of accounts, the assessee had not written off the expense in issue, while in the succeeding assessment year only a part of the expense had been written off and, therefore, the assessee’s own understanding of the nature of the expense involved was that it was expended on capital account is only to be stated to be rejected. The reason being that the treatment of a particular expense or, a provision in the books of accounts can never be conclusively determinative of the nature of the expense. An assessee cannot be denied a claim for deduction which is otherwise tenable in law on the ground that the assessee had treated it differently in its books.” Cases relied upon by the AR also support the stand taken by the assessee. So, we are of the opinion that the expenditure incurred by the assessee on e- connectivity is incurred for day-to-day running of its business without creating any asset and therefore same is allowable as revenue expenditure. Effective ground of appeal, raised by the assessee is decided in its favour.

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