2023 (2) TMI 837 - AT - Income Tax

Tribunal directs reassessment of disallowances & transfer pricing adjustments emphasizing evidence review

M/s. TiVo Tech Private Limited [formerly Veveo (India) Private Ltd.), Versus. The Deputy Commissioner of Income Tax, Circle 7 (1) (1), Bangalore.

The Tribunal partly allowed the appeal by the assessee, directing the AO to re-evaluate the disallowances and transfer pricing adjustments based on ... TP adjustment - SWD segment - Comparable selection - HELD THAT:- Companies whose turnover in the current year is more than Rs.200 Crores should be excluded from the list of comparable companies. R S Software Ltd. - As identical to the case of Barracuda Networks India Private Limited [2022 (5) TMI 322 - ITAT BANGALORE] decided by the Tribunal and respectfully following the same, we hold that if R S Software Ltd. if at all to be considered as comparable the margins for AY 2014-15 & 2015-16 have to be ignored and not to be considered as comparable. Interest on delayed receivables - delay in realisation of receivables as separate international transaction -TPO computed the notional interest by applying the interest rate of 4.985% i.e. 6 months LIBOR + 450 basis points and considering the credit period of 45 days - HELD THAT:- The impugned issue is squarely covered by the decision of the coordinate Bench of the Tribunal in the case of Swiss Re Global Business Solutions India Pvt. Ltd [2022 (1) TMI 1275 - ITAT BANGALORE] and the judgment of AMD (India) Pvt. Ltd [2018 (8) TMI 2094 - KARNATAKA HIGH COURT], we hold that the treatment of interest on deferred receivables is rightly considered as an independent international transaction and benchmarked separately by the revenue authorities. With regard to calculation of interest, respectfully following the above decision we hold that it would be appropriate to take the LIBOR rate + 2%. For this purpose, we place reliance on the judgment of the Bombay High Court in the case of CIT v. Aurionpro Solutions Ltd. [2017 (6) TMI 1087 - BOMBAY HIGH COURT] Disallowance of trade payable and certain other expenses u/s. 37 - AO made an adhoc disallowance of 30% of the actual expenses on trade payables, rent expenses, legal and professional expenses and forex losses - disallowances were made on the ground that the Assessee failed to furnish details with respect to the aforesaid expenditures - details were furnished before the AO under the rectification application - HELD THAT:- DRP has given a direction to consider the confirmations produced by the assessee and that the details listed above as submitted by the assessee have not been considered while deciding the disallowance. We therefore remit the issue back to the AO to take into consideration the details/confirmations submitted by the assessee to decide the allowability in accordance with law after giving reasonable opportunity of being heard to the assessee. Issues Involved:1. TP adjustment made with respect to interest on outstanding trade receivables.2. Disallowance of trade payables, legal and professional charges, repairs and maintenance expenses, foreign exchange loss, and recruitment and reimbursement expenses u/s. 37 of the Act.3. Levy of interest u/s. 234B and 234C of the Act and Advance tax paid not considered.Issue-wise Detailed Analysis:1. TP Adjustment - SWD Segment:The assessee challenged the TP adjustment made by the TPO regarding interest on delayed receivables and the selection of comparables. The TPO had not applied an upper turnover filter, leading to the inclusion of high turnover companies. The Tribunal referenced the decision in Autodesk India (P) Ltd. v. DCIT, which established that high turnover companies should be excluded when comparing with low turnover companies. Consequently, companies like Infosys Ltd., Larsen & Toubro Infotech Ltd., Persistent Systems Ltd., Aspire Systems (India) Pvt Ltd., Thirdware Solution Ltd., Cybage Software Pvt Ltd., and Nihilent Ltd. were excluded.Regarding R S Software (India) Ltd., the Tribunal noted significant fluctuations in its profit margins over the years, suggesting peculiar economic circumstances. Following the precedent in Barracuda Networks India Private Limited v. CIT, it was held that if R S Software Ltd. is considered comparable, its margins for FY 2014-15 and 2015-16 should be ignored.For interest on delayed receivables, the Tribunal upheld the treatment of such interest as an independent international transaction, requiring separate benchmarking. The interest rate was adjusted to LIBOR + 2%, following the judgment in CIT v. Aurionpro Solutions Ltd.2. Disallowance of Expenses u/s. 37 of the Act:The AO disallowed 30% of various expenses due to insufficient evidence provided by the assessee. The DRP directed the AO to reconsider these disallowances if the assessee provided the necessary documentation. The Tribunal remitted the issue back to the AO to verify the details submitted by the assessee, including:- Trade payables: The assessee provided confirmations and details of trade payables amounting to Rs. 2,84,00,052/-.- Rent expenses: The DRP directed no disallowance as the assessee furnished proof of TDS payment.- Legal and professional charges: The assessee submitted party-wise details, Form 16A, and TDS payment proofs.- Repairs and maintenance: The DRP failed to adjudicate, so the issue was remitted back.- Recruitment expenses: The assessee provided details of TDS deducted and payments made to LinkedIn Ireland.- Reimbursement expenses: The assessee explained the nature of Bravo Rewards and provided TDS details.- Forex loss: The assessee furnished accrual/invoice-wise details of forex loss amounting to Rs. 47,12,278/-.The Tribunal directed the AO to consider the additional details filed through the rectification petition and decide the allowability in accordance with the law.3. Levy of Interest u/s. 234B and 234C and Advance Tax:The Tribunal noted that the levy of interest u/s. 234B and 234C is consequential. The AO was directed to verify the advance tax paid by the assessee and give due credit. The initiation of penalty was also deemed consequential.Conclusion:The appeal by the assessee was partly allowed, with directions to the AO to re-evaluate the disallowances and TP adjustments based on the detailed submissions and precedents provided. The Tribunal emphasized the need for a fair and thorough review of the evidence submitted by the assessee.