2014 (11) TMI 431 - AT - Income Tax

Tribunal remits transfer pricing issue for reconsideration, grants higher depreciation rate.

The Tribunal remitted the transfer pricing adjustment issue back to the Transfer Pricing Officer for reconsideration, emphasizing the need to assess ... Transfer pricing adjustment - International transaction of purchase of concrete pump units – Held that:- The assessee has submitted the details in respect of materials, components or parts purchased by the assessee from its AE during the financial year 2007-08 and corresponding particulars of transactions is given in ‘Annexure-1’ - the TPO has no occasion to verify this all documentary evidence - the assessee has produced all these documentary evidence and the documentary evidence shows that if the TPO consider that the assessee has to incur the higher costs on account of higher import duty - where there is imported content of raw material and if the price variation is due to imported raw materials, if it is the first year of operation it will have impact for deciding the arms length price but in that situation imported contents of raw materials which has substantially come down in succeeding year has to be considered while deciding the transfer pricing arms length price and matter was restored to the AO - the issue should be set aside to the file of TPO with the direction to eliminate the difference, if any – Decided in favour of assessee. Depreciation on computer peripherals on the UPS @ 60% – Held that:- The UPS system is designed special for computers for both low and high users and it forms part of entire information technology infrastructure of the company - The UPS is entitled for depreciation @ 60% as decided in CIT vs. BSES Rajdhani Powers Ltd. [2010 (8) TMI 58 - DELHI HIGH COURT] - assessee company is eligible for depreciation @ 60% on UPS – Decided in favour of assessee. Issues Involved:1. Upward transfer pricing adjustment under section 92 of the Income-tax Act, 1961.2. Depreciation rate applicable to server UPS systems.3. Initiation of penalty proceedings under Section 271(1)(c) of the Income-tax Act.Detailed Analysis:Issue 1: Upward Transfer Pricing AdjustmentThe primary issue concerns the upward transfer pricing adjustment of Rs. 2,45,35,296/- made by the Assessing Officer (AO) in accordance with the directions of the Dispute Resolution Panel (DRP) under section 144C(5) of the Income-tax Act, 1961. The adjustment pertains to the international transaction involving the purchase of concrete pump units in Completely Knocked Down (CKD) or Semi-Knocked Down (SKD) form from the assessee's associated enterprise (AE) in Germany.The assessee, engaged in manufacturing and trading concrete pumps, benchmarked its international transaction using the Resale Price Method. The Transfer Pricing Officer (TPO) rejected this analysis and performed separate benchmarking analyses for the trading and manufacturing segments, leading to the adjustment. The TPO compared the margins of comparable companies, finding the assessee's margin to be -4% in the manufacturing segment against an average margin of 12.04% for comparable companies. The TPO accepted the gross profit margin of 12.04% for determining the Arm's Length Cost, resulting in the adjustment.The assessee argued that being the first year of operations, the high material costs were due to imports from Germany, including freight, handling charges, and customs duty. The company had to compete with established market players, leading to a dictated selling price and resulting in a loss at the gross margin level. The assessee provided detailed comparative analyses and cited decisions from ITAT, Pune Bench, in similar cases, arguing for the consideration of high costs due to initial operations and import content.The Tribunal acknowledged the assessee's submission and found that the TPO had not verified the documentary evidence provided. Referring to the decision in the case of Skoda Auto India (P.) Ltd., the Tribunal noted that adjustments are permissible for high import content due to extraordinary circumstances. It remitted the matter back to the TPO for fresh adjudication, directing the TPO/AO/DRP to consider whether the differences materially affect the price or cost charged.Issue 2: Depreciation Rate for Server UPS SystemsThe second issue involves the depreciation rate applicable to server UPS systems. The assessee claimed depreciation at 60%, considering the UPS as part of the computer system. The AO and DRP, however, treated the UPS as part of plant and machinery, allowing depreciation at only 15%.The Tribunal, after hearing the arguments, found that the UPS system is integral to the company's information technology infrastructure and should be eligible for depreciation at 60%. This decision was supported by the precedent set by the Delhi High Court in the case of CIT vs. BSES Rajdhani Powers Ltd., where UPS systems were considered part of computer systems for depreciation purposes.Issue 3: Initiation of Penalty ProceedingsThe third issue concerns the initiation of penalty proceedings under Section 271(1)(c) of the Income-tax Act. The Tribunal did not provide a detailed analysis or conclusion on this matter within the provided text, focusing instead on the primary issues of transfer pricing adjustment and depreciation rates.ConclusionThe Tribunal allowed the appeal on the first ground for statistical purposes, remitting the matter back to the TPO for fresh consideration of the transfer pricing adjustment. On the second ground, the Tribunal allowed the appeal, granting the higher depreciation rate of 60% for the UPS systems. The order was pronounced in the open court on 08.08.2014.