2015 (11) TMI 184 - AT - Income Tax

Tribunal Remands Transfer Pricing Adjustment, Upholds Depreciation Claim, and Dismisses Interest Levy

The Tribunal remanded the transfer pricing adjustment for advertisement marketing and sale promotion (AMP) expenses back to the AO for reconsideration. It ... Transfer pricing adjustment - addition on account of AMP expenses - Held that:- AO has made the addition on account of transfer pricing in relation to expenses incurred by assessee in outbound business segment by comparing the expenses incurred by comparables in the inbound segment. We understand that two segments are materially different and require different level of expenditure for promotion of these business segments. Therefore we are of the firm view that this matter should be reconsidered by AO who would decide the issue afresh in accordance with law. - Decided in favour of assessee for statistical purposes. Addition u/s 40(a)(ia) - payment to overseas representatives without deduction of tax at source - Held that:- Hon’ble Tribunal vide its order dated 19th December 2014 had decided the issue in favour of assessee after analysis of the agreement with overseas representatives and had arrived at a conclusion that the nature of services provided by these agents were not in the nature of managerial technical or consultancy services. In the present years the agreements entered into with agents were not on record and therefore without examination of these agreements the decision as to whether the services do not fall in managerial technical or consultancy category can not be arrived at. Therefore in view of substantial justice we are of the view that the AO should examine agreements to determine the nature of services provided by agents and if the nature of services as mentioned in the agreements is similar as in the years 2007-08 and 2008-09 and the services are not in the nature of managerial technical or consultancy services then he should allow the same as the Hon’ble Delhi High Court has upheld the decision of Hon’ble Tribunal for assessment year 2007-08 and 2008-09. - Decided in favour of assessee for statistical purposes. Disallowance of advertisement & publicity charges paid to non-resident entities without tax deduction at source - Held that:- The issue of advertisement and publicity charges will also be examined by AO afresh keeping in view the terms and conditions of the agreement of Advertisement and AO will examine the nature of services rendered by such payees. Therefore the issue of advertisement of publicly expenses is restored to A.O for re-adjudication. As regards amount paid representing AMC for computer software we find that the payment is clearly for provision of technical services and therefore the payments were liable for tax deduction at source, in view of the judgment of Hon’ble Delhi High Court in the case of Havells India [2012 (5) TMI 449 - DELHI HIGH COURT ] and therefore the addition to the extent of ₹ 19,39,692/- is confirmed. In view of the above ground No. 4 in assessment year 2010-11 is partly allowed for statistical purposes and is partly dismissed. Excess depreciation on computer peripherals - Held that:- Computer accessories and peripherals such as, printers, scanners and server etc. form an integral part of the computer system. In fact, the computer accessories and peripherals cannot be used without the computer. Consequently, as they are the part of the computer system, they are entitled to depreciation at the higher rate of 60%. See Rajdhani BSES [2010 (8) TMI 58 - DELHI HIGH COURT] - Decided in favour of assessee. Issues Involved:1. Transfer pricing adjustment for advertisement marketing and sale promotion (AMP) expenses.2. Disallowance of overseas representation charges and reimbursement of expenses due to non-deduction of tax at source (TDS).3. Excess claim of depreciation on computer peripherals.4. Non-deduction of tax at source on tour expenses.5. Payment to overseas representatives without deduction of tax at source.6. Disallowance of advertisement and publicity expenses paid to non-resident entities without deduction of tax.7. Levy of interest under Section 234B.8. Initiation of penalty proceedings under Section 271(1)(c).9. Full credit for tax deduction at source (TDS).Detailed Analysis:1. Transfer Pricing Adjustment for AMP Expenses:The assessee challenged the addition on account of transfer pricing adjustment for AMP expenses. The Tribunal found that the AO had made the addition by comparing expenses incurred in the outbound business segment with those in the inbound segment. The Tribunal agreed that these segments are materially different and require different levels of expenditure. Therefore, the issue was remanded back to the AO for reconsideration in accordance with the law, particularly in light of the case law of Sony Ericsson Mobile Communications India Pvt. Ltd. vs. CIT.2. Disallowance of Overseas Representation Charges and Reimbursement of Expenses:The Tribunal noted that similar issues had been decided in favor of the assessee in earlier years (2007-08 and 2008-09), where it was concluded that the payments were not for managerial, technical, or consultancy services, and thus, no TDS was required. However, the agreements for the current years were not on record. The Tribunal directed the AO to examine the agreements to determine the nature of services provided by the agents. If the services are similar to those in earlier years, the AO should allow the expenses; otherwise, the AO should deal with the matter as per the law.3. Excess Claim of Depreciation on Computer Peripherals:The Tribunal dismissed the revenue's appeal regarding the deletion of addition made for excess claim of depreciation on computer peripherals. It was noted that similar issues had been decided against the revenue in earlier years and upheld by the Hon'ble Delhi High Court.4. Non-Deduction of Tax at Source on Tour Expenses:The Tribunal upheld the DRP's decision to delete the addition made by the AO for non-deduction of tax at source on tour expenses. The DRP had concluded that the payments were made to entities outside India, and no business connection or permanent establishment (PE) was established in India. This decision was consistent with earlier Tribunal orders and upheld by the Hon'ble Delhi High Court.5. Payment to Overseas Representatives Without Deduction of Tax:The Tribunal found that the agreements with overseas representatives were not on record. Therefore, the issue was remanded to the AO to examine the agreements and determine the nature of services. If the services are not managerial, technical, or consultancy, the AO should allow the expenses.6. Disallowance of Advertisement and Publicity Expenses:For the assessment year 2010-11, the AO had disallowed an amount for advertisement and publicity charges paid to non-resident entities without TDS. The Tribunal directed the AO to re-examine the nature of services rendered under the agreements. However, the disallowance for AMC for computer software was upheld as it was deemed to be for technical services requiring TDS.7. Levy of Interest Under Section 234B:The Tribunal dismissed the grounds related to the levy of interest under Section 234B as they were consequential.8. Initiation of Penalty Proceedings Under Section 271(1)(c):The Tribunal dismissed the grounds related to the initiation of penalty proceedings under Section 271(1)(c) as premature.9. Full Credit for Tax Deduction at Source (TDS):For the assessment year 2010-11, the Tribunal directed the AO to allow full credit for TDS after examining the records.Conclusion:- The appeals of the assessee for the assessment year 2009-10 were allowed for statistical purposes.- The appeals of the assessee for the assessment year 2010-11 were partly allowed for statistical purposes and partly dismissed.- The revenue's appeals for both assessment years were dismissed.