2015 (7) TMI 492 - AT - Income Tax

Tribunal decision on Cost Plus Method for ALP, comparables, adjustments to turnover, and depreciation issue remanded.

The Tribunal upheld the use of the Cost Plus Method (CPM) for determining the arm's length price (ALP) and the selection of comparables based on product ... Transfer pricing adjustment - CIT(A) in confirming the order of the Assessing Officer (AO) as regards most appropriate method for computation of arm’s length price (ALP) and the comparables selected by the AO on the basis of product comparability as against the functional comparability adopted by the assessee - Held that:- As far as the revenue’s appeal against the deletion of Vimta Labs Ltd., from the list of comparables is concerned, though the learned Departmental Representative has relied upon the order of the AO, we find that the TPO has, in the remand report (which is reproduced at 14.2.1 of the order of the CIT(A)) has stated that Vimta Labs Ltd., was into contracting, research and technical activity and therefore is functionally dissimilar to the assessee. Since the TPO himself has agreed that the said company is not comparable to the assessee-company, we do not see any reason to interfere with the order of the CIT(A) on this issue and the revenue’s ground of appeal on this issue is rejected. As regards the basis comparability adopted by the TPO i.e. the product comparability as against the functional comparability adopted by the assessee is concerned, it is stated by the learned counsel for the assessee that the very same issue had arisen in the case of related party to the assessee i.e. M/s.GE BE Pvt. Ltd. wherein issue is decided in favour of assessee. Depreciation on plant and machinery purchased from Elpro International Ltd. - Held that:- This issue had first arisen in the assessment year 1998-99 and had come up to the Tribunal for adjudication and the Tribunal had set aside the issue to the AO for verification of the claim of the assessee. It is submitted by the learned counsel for the assessee that the AO had made disallowance of depreciation in the orders passed u/s 143(3) r.w.s. 254 for the assessment years 1998-99 and 1999-2000 and the appeals against the same are pending before the CIT(A). He submitted that all the details were furnished before the CIT(A) for the assessment years 1998-99 and 1999- 2000 and therefore this issue is to be remanded back to the file of the CIT(A) to give effect to the orders of the CIT(A) for the assessment years 1998-99 and 1999-2000 as this is a subsequent year and the orders for the assessment years 1998- 99 would have consequential effect for the relevant assessment year also. We, therefore, remand this issue to the file of the CIT(A) with a direction to give consequential effect to the order of his predecessor for assessment year 1998-99 onwards. Issues Involved:1. Determination of the most appropriate method for computation of arm's length price (ALP) and selection of comparables.2. Adjustments to export turnover and profits in computing the deduction under section 10A of the Income-tax Act, 1961.3. Depreciation on plant and machinery purchased from M/s. Elpro International Ltd.Detailed Analysis:1. Determination of the Most Appropriate Method for Computation of ALP and Selection of Comparables:The primary issue was the method for determining the ALP for international transactions between the assessee and its Associated Enterprises (AEs). The assessee, a contract manufacturer of medical equipment, initially adopted the Cost Plus Method (CPM) and selected comparables from various industries. The Assessing Officer (AO) and Transfer Pricing Officer (TPO) disagreed, emphasizing product comparability over functional comparability and proposed using companies manufacturing similar medical equipment as comparables. The Tribunal upheld the AO/TPO's approach, emphasizing that product similarity is crucial and that CPM is the most direct method for determining ALP, especially for contract manufacturers. The Tribunal also noted that adjustments for advertising and marketing expenses should be based on actual expenditure by comparables, in line with Rule 10C(2) of the Income-tax Rules.2. Adjustments to Export Turnover and Profits in Computing the Deduction under Section 10A:The AO made three adjustments to the export turnover and profits for computing the deduction under section 10A:- Non-receipt of Export Turnover: The AO excluded Rs. 58,87,090 from the export turnover as the assessee could not substantiate that the foreign currency was brought into India within the stipulated time. The CIT(A) reversed this decision, accepting the bank certificate provided by the assessee and noting that the sale proceeds were realized within the extended time. The Tribunal upheld the CIT(A)'s decision, referencing the Karnataka High Court's judgment in CIT vs. Tyco Electronics Corpn. India (P) Ltd.- Telecommunication Expenses: The AO excluded Rs. 68,41,559 incurred for telecommunication expenses from the export turnover but not from the total turnover. The CIT(A) directed that these expenses should be excluded from both export and total turnover, following the Special Bench decision in Sak Soft Ltd. and the jurisdictional High Court's decision in CIT vs. Tata Elxsi. The Tribunal upheld this view.- Profit from Trading Activity: The AO excluded Rs. 27,25,570 from the profits eligible for deduction under section 10A, considering it as trading income. The CIT(A) upheld this exclusion based on a previous Tribunal decision for a group company. However, the Tribunal reversed this decision, following the Special Bench decision in Maral Overseas Ltd. vs. ACIT, which allowed such profits to be included in the eligible profits for deduction under section 10B.3. Depreciation on Plant and Machinery Purchased from M/s. Elpro International Ltd.:The AO disallowed depreciation on a portion of the plant and machinery purchased from M/s. Elpro International Ltd., which included gratuity fund amounts. The Tribunal noted that this issue had been remanded to the AO for verification in earlier years, and the appeals for those years were pending before the CIT(A). The Tribunal remanded the issue back to the CIT(A) for the current year, directing that the decision should follow the outcome of the earlier years' appeals.Conclusion:- The Tribunal upheld the use of CPM as the most appropriate method for determining ALP and the selection of comparables based on product similarity.- Adjustments to export turnover for telecommunication expenses should be made to both export and total turnover. Profits from trading activities should be included in the eligible profits for deduction under section 10A.- The issue of depreciation on plant and machinery was remanded to the CIT(A) for a decision consistent with the earlier years' appeals.Result:- The revenue's appeal was dismissed.- The assessee's appeal for the assessment year 2004-05 was partly allowed.- The assessee's appeal for the assessment year 2005-06 was partly allowed.