2012 (1) TMI 343 - AT - Income Tax

Assessee Granted Conditional Stay with Payment Terms for Disputed Demand

PTC Software (India) (P.) Ltd. Versus Assistant Commissioner of Income-tax, Circle-4, Pune

The Stay Application filed by the assessee was allowed conditionally, with payment terms outlined for the disputed demand and an early hearing scheduled ... Denied benefit of the provisions of the proviso to section 92C(2) - Held that:- This is not in accordance with the pronounced decisions of various Benches including that of Pune. In effect, the demand relatable to this issue becomes clearly irrecoverable demand. We have also considered assessee's readiness to pay some tax and on considering assessee's capacity to pay and the requirements of Government of India, we are of the opinion that the assessee must pay 50% of the clear disputed demand (after excluding the demand related to the 5% plus or minus and also excluding the statutory interest segment thereof) which may be somewhere around ₹ 2 crores. Thus, the assessee is required to pay sum of ₹ 1 crore now for becoming entitled to the stay of demand conditionally. Considering the difficulties narrated by the learned counsel to pay the said demand in one go, we direct the assessee to pay the same in five equal monthly instalments. The first instalment should be paid at the end of this month i.e. January, 2012. We also consider the assessee's request for early hearing and the same is acceded to. Thus the case is posted for hearing on 23rd February, 2012 as pronounced in the open Court. Issues:Transfer pricing analysis for IT and IT enabled services, application of RPT Filter, rejection of comparable companies, risk adjustment, addition proposed by TPO, confirmation of addition by AO and DRP, disputed tax demand, benefit of proviso to section 92C(2) denied, calculation of tax demand, request for stay of demand, payment terms for disputed demand, early hearing of appeal.Transfer Pricing Analysis for IT and IT Enabled Services:The assessee, a captive service provider, charged for IT and IT enabled services on a cost plus basis. The transfer pricing analysis was based on Rule 10B(4) of the Income-tax Rules, 1962, using multiple year average financial data of comparable companies. The TPO rejected certain comparables and arrived at arm's length OP/TC percentages for both services. The assessee selected TNMM as the most appropriate method and operating profit as a proportion of total cost as the profit level indicator.Application of RPT Filter and Rejection of Comparable Companies:The TPO disregarded the assessee's use of prior years' data of comparables and applied the financial data for FY 2006-07. The TPO also rejected submissions regarding the RPT Filter and comparability of selected companies. Furthermore, the TPO did not provide the benefit of risk adjustment for differences in the risk profile of the assessee and comparables, leading to a proposed addition of Rs. 103,840,122.Confirmation of Addition by AO and DRP:The Assessing Officer confirmed the addition proposed by the TPO, resulting in a total income adjustment of Rs. 103,840,122. The DRP upheld the draft order of the AO, leading to a final assessment with the increased income.Disputed Tax Demand and Benefit of Proviso to Section 92C(2) Denied:The disputed tax demand of Rs. 5,43,92,973 included statutory interest. The benefit of the proviso to section 92C(2) was denied, impacting the tax liability significantly.Calculation of Tax Demand and Request for Stay of Demand:The assessee disputed the tax demand and sought deletion based on the proviso to section 92C(2). The counsel argued for a reduced demand after granting the proviso's benefits, estimating the adjusted tax demand and interest. The request for stay of demand was made, with differing payment proposals from the assessee and the Revenue.Payment Terms for Disputed Demand and Early Hearing of Appeal:The Tribunal found the denial of the proviso's benefits unjustified and considered the disputed demand irrecoverable. The assessee was directed to pay Rs. 1 crore in five monthly instalments for conditional stay of demand. An early hearing was granted, and the case was scheduled for further proceedings.Conclusion:The Stay Application filed by the assessee was allowed conditionally, with payment terms outlined for the disputed demand and an early hearing scheduled for the appeal.