2014 (2) TMI 894 - AT - Income Tax

Tribunal Decisions: Transfer Pricing, Depreciation, Export Services, Tax Credits

TNS India Pvt. Ltd. Versus ACIT, Circle 2(3) Hyderabad

TNS India Pvt. Ltd. Versus ACIT, Circle 2(3) Hyderabad - [2014] 32 ITR (Trib) 44 (ITAT [Hyd]) Issues Involved:1. Determination of Arm's Length Price (ALP) for management fees paid.2. Disallowance of deferred revenue expenditure.3. Disallowance under section 43B for service tax credit notes.4. Deduction under section 80HHE.5. Penalty under section 271(1)(c) for disallowance of management fees.Issue-wise Detailed Analysis:1. Determination of Arm's Length Price (ALP) for Management Fees Paid:The primary issue was the determination of ALP for management fees paid by the assessee to its Associated Enterprises (AEs). The Transfer Pricing Officer (TPO) determined the ALP at NIL, asserting that the assessee could not substantiate the services rendered by the AEs. The assessee provided detailed descriptions of services, agreements, financial statements, and the basis of cost allocation. The Tribunal found that the TPO exceeded his jurisdiction by denying the payment outrightly and emphasized that the TPO's role is limited to determining the ALP, not questioning the business decision. The Tribunal directed the Assessing Officer (AO) to verify the pricing methodology as per the agreement and allow the amounts accordingly.2. Disallowance of Deferred Revenue Expenditure:The assessee claimed expenditure on photosets as revenue expenditure, while the AO treated it as capital expenditure, allowing depreciation instead. The Tribunal noted conflicting findings regarding the nature of the expenditure and directed the AO to allow depreciation for the balance period until the asset's life, without delving into the capital vs. revenue expenditure debate.3. Disallowance Under Section 43B for Service Tax Credit Notes:The AO disallowed the outstanding service tax liability shown in the books, which the assessee claimed was discharged or reversed in the later year. The Tribunal accepted the assessee's contention that the service tax not paid/payable cannot be disallowed under section 43B, provided it was not claimed as an expenditure in the Profit & Loss account. The issue was restored to the AO to verify this aspect.4. Deduction Under Section 80HHE:The Tribunal upheld the CIT(A)'s allowance of deduction under section 80HHE, following the ITAT's decision in the assessee's own case for the earlier year. The Tribunal found that the assessee was engaged in the export of data processing services, which qualifies for the deduction under section 80HHE as per the CBDT notification.5. Penalty Under Section 271(1)(c) for Disallowance of Management Fees:The AO levied penalties for disallowance of management fees, which the CIT(A) confirmed. The Tribunal found no reason to uphold the penalties, stating that mere disallowance of an amount due to transfer pricing provisions does not attract penalty under section 271(1)(c). The Tribunal noted that the assessee maintained proper documentation and there was no concealment of income or furnishing of inaccurate particulars. The penalties were canceled.Conclusion:The Tribunal provided a detailed analysis of each issue, emphasizing the need for proper verification and adherence to legal provisions. The appeals were partly allowed for statistical purposes, with specific directions to the AO for further examination and verification. The penalties were canceled, and the deduction under section 80HHE was upheld.