2025 (10) TMI 937 - AT - Income Tax

Transfer pricing adjustment deleted; TNMM using 6.32% median from 13 comparables accepted; deny AO/TPO's ALP denial

ITAT held that the taxpayer's use of TNMM with a 6.32% median from 13 comparables was acceptable and rejected the TPO/AO's denial of ALP on grounds of ... TP Adjustment - international transactions entered into by the assessee regarding the consultancy services provided by the AE to the assessee - HELD THAT:- The assessee benchmarked its international transactions by adopting the TNMM as the most appropriate method having 13 comparable with median margin of 6.32% and claimed the international transaction is at ALP. TPO did not question all these details of the margin of the assessee and comparables but has rejected the TP analysis of the assessee on the ground that the assessee failed to produce the evidence of the services actually rendered by the AE. It is pertinent to note that the TPO has not denied the existence of Master Space Agreement between the assessee and the AE under which the AE was to provide the service to the clients of the assessee in USA comprising 24/7 support service and onsite services in implementation of the software development projects undertaken by the assessee. The major client of the assessee in US from whom the revenue is generated is M/s. Advance America, a NBFC. Once the services provided to the clients is a continous process from earlier year and not first time project undertaken by the assessee and the same project is continued for the year under consideration, then the providing of service by the AE in respect of the execution of the projects of software development services to the US client through its AE for the onsite service as well as 24/7 support service is part and parcel of the agreement between the assessee and its clients as well as the Master Agreement with its AEs. Therefore, the determination of ALP at Nil by the Assessing Officer is highly arbitrary and unjustified and beyond the jurisdiction of the TPO. The claim of deduction towards the payment to the AE if it is not against the actual rendering of services can be questioned only by the AO. We find that the payment made by the assessee to the AE against the invoices raised by the AE and under the agreement between the assessee and the AE for the services rendered by the AE in respect of the execution of assessee's projects of providing software development service, support service and onsite service to the client in the USA cannot be denied only on the ground that the assessee failed to produce the work order to the AE a 100% subsidiary of the assessee. Hence, the adjustment made by the Assessing Officer/TPO is not justified and the same is deleted. Disallowance made on account of delayed payment of employees contribution to PF & ESI - assessee has submitted that the assessee itself has made a Suo motto disallowance on account of delayed payment of employees' contribution to PF & ESI, however, the AO/CPC has made a double disallowance on this account - HELD THAT:- We direct the AO to verify the fact and this claim of the assessee of Suo motto disallowance of belated payment of employees contribution to PF & ESI and accordingly, delete the addition, if it is found to be double disallowance. ISSUES PRESENTED AND CONSIDERED 1. Whether the final assessment framed under the dispute resolution provisions is barred by limitation under section 153, or is valid under the time-limit provisions applicable to DRP/144C proceedings. 2. Whether an upward transfer-pricing adjustment treating consideration for consultancy/onsite services from a 100% subsidiary as Nil (resulting in an upward addition of the full payment) is sustainable where the assessee produced master service agreement, invoices, monthly timesheets, and prior year acceptance of similar transactions; and whether the TPO/DRP correctly rejected TNMM and/or applied the 'other' method without proper basis. 3. Whether additions on account of employee provident fund/ESI contributions represent an impermissible double disallowance where the assessee claims it made a suo motu disallowance and payments were made within statutorily prescribed time limits under PF/ESI laws and s.36(1)(va)/s.43B interplay. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Limitation: Validity of assessment under section 153 v. 144C time-limits Legal framework: The assessment completion time limits under section 153 and the separate timeliness regime for assessments resulting from Transfer Pricing/DRP proceedings under section 144C/144C(3)/144C(13) determine whether an assessment is time-barred. Precedent Treatment: The parties acknowledged an ongoing Supreme Court adjudication on the point; the Tribunal noted recent divergent findings in the Supreme Court and that the matter has been referred for constitution of a larger Bench. Interpretation and reasoning: The Tribunal declined to decide the substantive limitation point in view of the pending higher-court resolution. Recognising the current lack of final authoritative position, the Tribunal kept the issue open and directed the Assessing Officer to give effect to the final outcome of the Special Writ Petition pending before the Supreme Court. Ratio vs. Obiter: Procedural direction (obiter in the sense of not resolving the substantive legal question) - the Tribunal did not lay down a binding ratio on which provision governs timeliness; it refrained from adjudication pending superior court decision. Conclusion: The limitation objection is left open; the Assessing Officer is directed to implement the final outcome of the Supreme Court proceedings when available. Issue 2 - Transfer-pricing adjustment on consultancy/onsite services paid to 100% subsidiary Legal framework: Arms-length pricing under section 92C and the TPO's jurisdiction under section 92CA/92CA(3) to determine ALP; appropriateness of methods (TNMM, CUP, Other Methods) and evidentiary requirements for establishing receipt of services. Precedent Treatment: The Tribunal relied on its own consistent past decisions (cited reasoning from prior years of the assessee's case) establishing that where (i) a continuing contractual arrangement exists, (ii) invoices and contemporaneous timesheets are produced showing man-hours, and (iii) prior years' ALP acceptance occurred, the revenue authority cannot arbitrarily benchmark the transaction to Nil for lack of separate 'work orders.' The Tribunal also referenced established principles that the TPO/Assessing Officer cannot sit as a commercial judge to re-assess the business decision to avail services. Interpretation and reasoning: The Tribunal found as fact that (a) a Master Service Agreement was in force under which the subsidiary provided onsite and 24/7 support services to the assessee's US clients; (b) invoices and monthly timesheets were produced evidencing manpower and hours; (c) the assessee invoiced its clients for onsite and offsite manhours (showing pass-through of services); and (d) identical transactions were accepted at ALP in immediately preceding assessment year(s). The TPO's sole basis for treating ALP at Nil was the absence of distinct work orders for ongoing continuous services; the Tribunal held that in an ongoing arrangement the absence of separate work orders is not determinative and cannot justify treating consideration as Nil. The Tribunal noted the TPO did not dispute the operating margin comparables or TNMM computations, instead denying existence/need of services - a factual conclusion unsupported given the contemporaneous documents and consistent prior treatment. The Tribunal observed that questioning the commercial justification for payment (when documentary evidence of services is produced) exceeds the TPO's permissible role in TP proceedings. Ratio vs. Obiter: Ratio - Where continuous services are provided under a standing Master Service Agreement and contemporaneous invoices/timesheets and prior year acceptance exist, the TPO/DRP cannot arbitrarily benchmark the transaction to Nil solely for want of separate work orders; payment supported by documentary evidence and consistency with prior accepted ALP is to be respected. Obiter - commentary on the limits of res judicata and procedural nuances of method selection. Conclusion: The Tribunal deleted the TPO/DRP's upward TP adjustment (i.e., rejected ALP at Nil) and directed the Assessing Officer to accept the value of managerial/consultancy services as claimed by the assessee. Issue 3 - Disallowance/double disallowance of PF/ESI contributions and s.36(1)(va)/s.43B implications Legal framework: Deductibility of employer contributions to statutory funds (PF/ESI) and timing rules under s.43B and s.36(1)(va) (allowability if paid within due dates prescribed under corresponding statutory enactments); accounting for any suo motu disallowance to avoid double disallowance. Precedent Treatment: The Tribunal treated the matter as a factual verification exercise to be examined by the Assessing Officer in the light of documentary proof of timing/payment and any earlier disallowance by the assessee or by CPC/AO. Interpretation and reasoning: The Tribunal accepted the assessee's contention that a portion of the disallowed amount was purportedly already accounted for by the assessee as suo motu disallowance and that separate heads of disallowance may have overlapped. The Department conceded that factual verification is required. Given the factual character (payments, dates, and prior disallowance entries), the Tribunal declined to decide on the merits and instead directed the Assessing Officer to verify records and delete any addition shown to be a double disallowance. Ratio vs. Obiter: Ratio - Where an assessee demonstrates that an addition arises from double counting/double disallowance, the Assessing Officer must verify and correct; the Tribunal will remit factual verification to the AO rather than decide on contested factual matrices. Obiter - references to interplay of s.36(1)(va) and s.43B as context for assessing allowability. Conclusion: The Tribunal directed the Assessing Officer to verify the facts regarding PF/ESI disallowance and to delete the addition if established as double disallowance; matter remitted for factual adjudication.