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 - arm's length price - functional differences due to high import content - remand to Transfer Pricing Officer for verification - elimination of differences under Rule 10B sub rule 3 - UPS as integral part of computer system - depreciation at 60% on computer related UPSTransfer pricing adjustment - arm's length price - functional differences due to high import content - remand to Transfer Pricing Officer for verification - elimination of differences under Rule 10B sub rule 3 - Upward transfer pricing adjustment in respect of import of CKD/SKD units and comparability of selected comparables - HELD THAT: - The Tribunal examined the assessee's evidence showing high imported content in the first year of operations, submission of comparative annexures and authorities (Skoda Auto India and Demag Cranes) establishing that where imported content materially affects costs and profits, adjustments or enquiries are permissible. The Tribunal observed that the TPO/AO/DRP had not verified the documentary material tendered by the assessee nor considered whether differences would materially affect price, cost or profit in the open market as envisaged by Sub Rule 3 of Rule 10B. In view of these considerations and the principle that functional differences arising from business model or exceptional first year import content may require adjustment, the Tribunal set aside the transfer pricing determination and directed remand to the TPO for fresh adjudication and verification to eliminate any material differences. [Paras 3]Matter remitted to the file of the TPO/AO/DRP for fresh consideration to verify and, if warranted, eliminate differences arising from high import content; appeal allowed for statistical purposes on this ground.UPS as integral part of computer system - depreciation at 60% on computer related UPS - Rate of depreciation admissible on UPS claimed as part of server/computer infrastructure - HELD THAT: - The Tribunal found that the UPS in question was designed for computer use, formed part of the assessee's IT/server infrastructure and was not a stand alone item. Relying on the authoritative decision of the Delhi High Court in CIT vs. BSES Rajdhani Powers Ltd., the Tribunal held that such UPS units qualify as integral to computer systems and are eligible for depreciation at the higher rate applicable to computers. [Paras 4]Assessee entitled to depreciation at 60% on the UPS; appeal allowed on this ground.Final Conclusion: Appeal allowed in part: transfer pricing adjustment set aside and remitted to the TPO/AO/DRP for fresh verification and adjudication on the effect of high import content; depreciation claim on UPS allowed at 60%. 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.