2012 (7) TMI 580 - AT - Income Tax

Tribunal upholds assessee's appeal, rejects Revenue's transfer pricing adjustments

The Tribunal dismissed all appeals by the Revenue, upholding the Commissioner (Appeals)' decisions in favor of the assessee. The Tribunal supported the ... Condonation of delay - delay of 243 days - reasons stated for the delay in filing the cross objections are that, on professional advice from the present Counsel, these cross objections were filed – Held that:- Assessee has not demonstrated that it had a reasonable cause for filing the cross objections with a delay of 243 days - cross objections preferred by the assessee are dismissed Computation of Arms Length price - international transactions - adjustment to the international transactions – TPO had rejected the methodology adopted by the assessee on the ground that there is no comparability as the set of skills that an employee requires vary from function to function – Held that:- Rates charged by the assessee company are identical to the rates charged by the third parties in the same line of business for the same job and the assessee has proved the same with evidence - TPO has not brought out any material on record to prove that the per hour rate charged by the assessee company is lower than that charged by the third parties in the same line of business - Assessing Officer has not given any reason that TNM is the best method and the CUP method is not appropriate - adjustment has been made by the Assessing Officer himself. No reference was made to the TPO - dismiss the adjustment made by the TPO / Assessing Officer – Revenue’s appeal dismissed. Issues Involved:1. Condonation of delay in filing cross objections.2. Transfer Pricing Adjustment under section 92CA for assessment year 2003-04.3. Applicability of CUP method versus TNM method in determining Arms Length Price.4. Additional ground of depreciation rate for assessment year 2004-05.5. Transfer Pricing Adjustment for assessment years 2005-06, 2006-07, and 2007-08.Condonation of Delay in Filing Cross Objections:The Tribunal deliberated on the issue of condonation of delay in filing cross objections by the assessee. The delay of 243 days was not adequately justified by the assessee, leading to the dismissal of the cross objections. The Tribunal emphasized the need for a reasonable cause for such delays and rejected the argument based on advice from a new Counsel without supporting evidence.Transfer Pricing Adjustment for Assessment Year 2003-04:The case involved a transfer pricing adjustment under section 92CA for the assessment year 2003-04. The Tribunal reviewed the Addl. CIT's determination of the arm's length price, which resulted in an addition of Rs. 2,47,09,042 to the total income of the assessee. The Commissioner (Appeals) had previously deleted this addition, leading to the Revenue's appeal. The Tribunal upheld the findings of the Commissioner (Appeals) and dismissed the Revenue's grounds for appeal.Applicability of CUP Method vs. TNM Method:The dispute centered on the appropriate method for determining the Arms Length Price between the CUP method and TNM method. The Tribunal considered the arguments presented by both parties regarding the comparability of rates charged for software development services. The Tribunal upheld the findings of the first appellate authority, supporting the application of the CUP method by the assessee. It emphasized the importance of comparable market rates and the lack of evidence to reject the CUP method in favor of the TNM method.Additional Ground of Depreciation Rate for Assessment Year 2004-05:For the assessment year 2004-05, an additional ground regarding the rate of depreciation was raised. However, this issue was not further addressed as the Tribunal had already upheld the assessee's contentions on other grounds, rendering the discussion on depreciation rate academic.Transfer Pricing Adjustment for Assessment Years 2005-06, 2006-07, and 2007-08:In the assessment years 2005-06, 2006-07, and 2007-08, transfer pricing adjustments were made by the Assessing Officer without reference to the TPO. The Tribunal dismissed these adjustments, supporting the assessee's contention that the Assessing Officer did not have the authority to make such adjustments. As the Tribunal had already upheld the assessee's position on merit, it did not delve into this issue further.Overall, the Tribunal dismissed all appeals preferred by the Revenue, maintaining the decisions made by the Commissioner (Appeals) and upholding the findings in favor of the assessee on various grounds related to transfer pricing adjustments and methodological considerations.