2017 (7) TMI 355 - AT - Income Tax

Tribunal decision: ALP for commission remitted, 10B deductions upheld, 14A disallowance affirmed, Revenue appeal dismissed.

M/s. Intimate Fashions India Pvt. Ltd. Versus Dy. Commissioner of Income Tax, Company Circle -II (3), Chennai, And Vice-Versa

The Tribunal remitted the issue of Arm's Length Price (ALP) for commission back to the Assessing Officer for fresh examination, upheld the exclusion of ... Disallowance of the commission payment - there is no evidence produced and only statements were provided on availing services through E-mail correspondence - Held that:- We find strength in the arguments of Ld. AR and the commission is paid for the purpose of business wholly and exclusively based on the turnover. We found similar disputed issue was considered in assessee own case by the co-ordinate bench of this Tribunal for the assessment year 2001-02 where the Tribunal has remitted the disputed issue to be re-examined by the Assessing Officer. We respectfully following the co-ordinate bench decision and in the interest of justice, we remit the disputed issue to the file of the Assessing Officer to decide the matter afresh based on the available supporting material and evidence Claim of deduction u/s. 10B - exclusion of foreign currency from export turnover and 30% telecommunication expenses from the export turnover - Held that:- For calculation of deduction under section 10B of the Act, by excluding from export turnover, freight, telecommunication charges and expenses incurred in foreign exchange, we are of the opinion that such amounts will have to be excluded from total turnover also as held by the Special Bench of the Tribunal in the case of Sak Soft Ltd.,(2009 (3) TMI 243 - ITAT MADRAS-D ). Assessing Officer is directed to rework the deduction Disallowance u/s. 14A r.w.r. 8D - Held that:- We found that the Assessing Officer has applied the provisions of section 14A r.w.r. 8D and the DRP has considered these facts and directed the Assessing Officer to re-work the computation of disallowance and Accordingly remitted to Assessing Officer. We find the provisions of section 14A r.w.s. 8D are mandatorily applicable w.e.f. 24.03.2008 and accordingly, we are not inclined to interfere with the order of DRP and upheld the action of DRP and dismiss the assessee ground. Further, direct the AO to adopt correct profit for assessing the income and levy of interest u/s. 234B & C is consequential and shall be calculated on assessed income. Accordingly, the assessee appeal is partly allowed for statistical purpose. Issues Involved:1. Arm's Length Price (ALP) of commission paid to Associate Enterprise (AE).2. Exclusion of foreign currency expenditure and telecommunication expenses from export turnover for deduction under Section 10B.3. Disallowance under Section 14A read with Rule 8D.4. Downward adjustment of purchase price from AE.Detailed Analysis:1. Arm's Length Price (ALP) of Commission Paid to AE:The Tribunal examined whether the commission paid by the assessee to its AE was justified. The TPO had determined the ALP of the commission as Nil, arguing that the assessee failed to demonstrate the services received from the AE beyond email correspondence. The Tribunal found merit in the assessee's argument that the commission was paid for business purposes and that the TPO did not dispute the documents but only the nature of services. The Tribunal referred to a similar case from the assessee's own history and remitted the issue back to the Assessing Officer for a fresh examination, allowing the assessee to substantiate its claim.2. Exclusion of Foreign Currency Expenditure and Telecommunication Expenses from Export Turnover for Deduction under Section 10B:The Tribunal addressed the issue of whether foreign currency expenditure and telecommunication expenses should be excluded from the export turnover for the purpose of Section 10B deduction. The DRP had directed the AO to exclude these expenses from both export turnover and total turnover, relying on the Special Bench decision in ITO vs. Sak Soft Ltd. The Tribunal upheld this direction, noting that similar issues had been decided in favor of the assessee in previous years. The AO was directed to rework the deduction accordingly.3. Disallowance under Section 14A read with Rule 8D:The Tribunal reviewed the disallowance made by the AO under Section 14A read with Rule 8D, amounting to Rs. 3,10,519/-. The DRP had directed the AO to rework the computation of disallowance, which the Tribunal upheld. The Tribunal emphasized that the provisions of Section 14A read with Rule 8D are mandatorily applicable from 24.03.2008. Consequently, the Tribunal did not interfere with the DRP's order and upheld the action, directing the AO to adopt the correct profit for assessing the income and calculate interest under Sections 234B and 234C accordingly.4. Downward Adjustment of Purchase Price from AE:The Tribunal examined the downward adjustment of Rs. 29,46,518/- made by the TPO on the purchase price from the AE. The DRP had deleted this adjustment, relying on the Tribunal's decision in the assessee's own case for previous assessment years. The Tribunal found that the TPO's approach of considering only a few items for ALP adjustment without considering the total volume of transactions was flawed. The Tribunal upheld the DRP's order, emphasizing that a global view should be taken with reference to international transactions and dismissed the Revenue's ground.Conclusion:The Tribunal's decision addressed multiple issues concerning the determination of ALP for commission payments, exclusion of certain expenses from export turnover for Section 10B deductions, and disallowance under Section 14A. The Tribunal remitted the issue of ALP for commission back to the AO for fresh examination, upheld the DRP's directions on Section 10B deductions, and affirmed the reworking of disallowance under Section 14A. The Tribunal also dismissed the Revenue's appeal on the downward adjustment of purchase price from the AE. The assessee's appeal was partly allowed for statistical purposes, and the Revenue's appeal was dismissed.