TaxTMI 
TaxTMI 
2020 (3) TMI 111
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....sentatives, the receipt of contract revenues and the bearing of migration costs by the assessee be benchmarked separately though being interrelated and not aggregated as done by the TPO. 2. "On the facts and in the circumstances of the case and in law, the Id, CIT(A) erred in holding that the Authorised Representatives in UK and USA can be taken as tested party as they are performing Less complex functions and their comparables too are based in the same geographical area subject to the same accounting standards and holding that the TPO was not right in selecting the assesses as the tested party for benchmarking the international transactions. 3. "On the facts and in the circumstances of the case and in law, the Id. CIT(A) erred in holding that the contracting migration costs should not be considered for the calculation of the operating margin of the assessee though they are in the nature of operational costs. 4. "On the facts and in the circumstances of the case and in law, the Id. CIT(A) erred in holding that the international transaction entered into by the assesses with its Authorised Representatives were at arms length and thereby giving a relief of Rs. 13,61,665,000/- to....
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....enting consideration paid for acquisition of business contracts. 10. "On the facts and in the circumstances of the case and in law, the Id, CIT(A) failed to appreciate that a running business has been acquired on a lump sum payment and the acquisition of the capital asset is of the business as a whole, and the capital asset does not have the characteristics of intangible assets as listed in clause (b) of Explanation 3 to section 32(1) of the IT Act. 11. "On the facts and in the circumstances of the case and in law, the Id. CIT(A) erred in directing the Assessing Officer to allow deduction u/s.10A on the various additions / disallowances made to the profits of the business in terms of the provisions of section 30 to 43D of the Income tax Act, 1961 without appreciating that the assessee is not entitled to deduction u/s.10A in view of the change in shareholding of the assessee company in the previous year 2002-03. 12. "On the facts and in the circumstances of the case and in law, the Ld.CIT(A) erred in directing the Assessing Officer to allow deduction u/s10A to the assesse in respect of the profits of its eligible units viz.Mumbai unit 1, Pune Unit 1, Pune Unit 2 and Nashik Uni....
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....preferred an appeal before the Ld.CIT(A). Before the Ld.CIT(A), the assessee has challenged additions made by the Ld. AO towards TPA, in respect of receipt of contract revenue and other services. The assesse has also challenged additions made by the Ld. AO towards notional interest charged on export receivables for belated realization of proceeds from AE's and also, additions made by the Ld. AO towards disallowances of depreciation on intangibles and adhoc disallowances of administrative expenses. The Ld.CIT(A) for the reasons stated in his appellate order, dated 30/12/2011 has deleted additions made by the Ld. AO towards TPA, in respect of payment of marketing and management fees and receipt on account of contract revenue ect. The Ld.CIT(A) has also, deleted additions made by the Ld. AO towards interest on export receivables, on the ground that, as per the working of debt collection period submitted by the assessee after netting of creditors, the same works out to 4 days, which is well within the terms of transactions and accordingly, no adjustment is required towards interest on export receivables. The Ld. CIT(A) has also deleted additions made by the Ld. AO towards deductions c....
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....e AE's as tested party, but also accepted the foreign comparables proposed by the assesee. The TPO cannot aggregate the international transactions for benchmarking. The Tribunal, further held that the transactions of the assessee with its AE do not form a single composite transactions and the terms of each transactions have been agreed separately by the assesee with its AE's. Thus, the Ld. TPO approach of aggregating the international transactions is not appropriate. The relevant findings of the Tribunal are as under:- "8. We have considered rival submissions and perused materials on record. As could be seen from the order of the Transfer Pricing Officer, primarily relying upon his decision in assessment year 2004-05, he has held that the assessee has to be treated as tested party and all international transactions have to be aggregated for bench marking purpose. However, it is observed, while deciding identical issue in assessee's own case for the assessment year 2004-05, the Tribunal has upheld learned Commissioner (Appeals)'s decision in treating the AEs as the tested party on the following observations: - "15. While deleting the addition made by TPO disregarding the....
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....e since the FAR profile of WNS India is different in both the transactions and hence, aggregating these international transactions and considering WNS India as the tested party is wholly misplaced and contrary to the TP regulations. In view of these factual position, the Hon'ble CIT(A) has correctly upheld the benchmarking approach adopted by the assessee. 22. For this purpose reliance may be placed on decision of the Hon'ble High Court of Punjab & Haryana in the case of Knorr- Bremse India Pvt. Ltd., ITA No.172 & 182 of 2013) wherein the Hon'ble Court has upheld the principle that only closely linked transactions which are components of single composite transaction can constitute a transaction. 23. In view of the above, we observe that the aforesaid transactions do not form a single composite transaction and the terms of each transactions have been agreed separately by the assessee with its AEs. Thus, the learned TPO's approach of aggregating the international transactions is not appropriate and the learned DR's claim of following the learned TPO's claim is not acceptable. Furthermore, detailed findings given by CIT(A) are as per material on record, w....
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....e Ld. TPO should bring on record, the benefit derived by the assessee by extended credit period to the AE's. Simply, because there is extended credit period for the AE's, no adjustment could be made, in respect of notional interest, when the assesee has explained the reasons for delay in realization of receivables from AE's. 10. The Ld. DR, on the other hand, strongly supporting order of the Ld.AO/TPO submitted that the issue, whether export receivables is a international transaction or not has been settled by the Hon'ble Delhi High Court, in the case of M/s Mckinsey Knowledge Center India Pvt.Ltd. vs. PCIT ( 2018) taxmann.com 237, where it was held that if, there is any delay in the realization of a trading debt arising from the sales of goods or services rendered in the course of carrying on the business, it is liable to be visited with TPA on account of interest income short charged/uncharged. The Ld. DR, further submitted that while delivering the judgment, the Hon'ble Court has taken note of sub clause (c) of clause (i) of Explanation to section 92B of the Act, inserted by the Finance Act, 2012 w.e.f. 01/04/2012. Further, the SLP filed against the judgment before Hon'ble Supr....
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....vestigated on case to case basis. The Hon'ble Court, further held that when, the assesee is already factored the receivables in the working capital and thereby on its pricing/profitability vis-à-vis that of its comparables, any further adjustment only on the basis of the outstanding receivables would have distorted the picture and re-characterized the transactions, this was clearly impermissible in law. Therefore, he submitted even after making say ,the law is very clear, in respect of receivables from AE's, as per which each transactions has to be examined, in light of facts brought out by the assessee to bring it within the ambit of international transactions. He, further submitted that the ITAT has considered all these aspects for earlier years and held that while characterizing the export receivables from AE's for benchmarking, the Ld. AO ought to have considered payables to AE's to ascertain is there any benefit has been provided to the AE's on account of extended credit facility. Therefore, there is no merit in the arguments of the Ld. DR that the Ld. AO was right in benchmarking interest on export receivables for delayed realization from AE's. 12. We have heard bot....
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....d by the eligible units in view of erstwhile provisions of section 10A(9) of the Act. The Ld. AR for the assessee submitted that this issue is also covered in favour of the assessee by the decision of ITAT, Mumbai 'K' bench in assessee own case for AY 2005-06 & 2008-09, where it has been held that omission of sub-section (9) of section 10A of the Act, by Finance Act, 2003 would effectively mean that the provision never existed in the statute. 15. The ld. DR, on the other hand, fairly accepted that the issue is covered in favour of the assessee by the decision of Tribunal for earlier years. 16. We have heard both the parties, perused the material available on record and gone through orders of the authorities below. We find that the Tribunal has considered an identical issue for AY 2005-06 & 2008-09 and after considering the amendment made by the Finance Act, 2003, provisions of section 10A of the Act, held that omission of sub-section (9) of section 10A by the Finance Act, 2003 would effectively meant that the provision never existed in the statute and consequently, the assessee is entitled for deduction towards profit derived from eligible units u/s 10A of the I.T.Act, 1961. The ....
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....e submitted that this issue is also covered in favour of the assessee by the decision of ITAT, Mumbai, 'K' bench in assessee own case for AY 2005-06 & 2008-09. 19. We have heard both the parties, perused the material available on record. We find that the Tribunal has considered an identical issue for AY 2008-09, where under identical set of facts, it has bench held that the assessee has acquired contractual rights, which no doubt is a valuable commercial right and hence,it comes within the meaning of intangible assets, as per section 32(1)(ii) r.w. Explanation 3(b) of the Act and hence, the assessee is entitled for depreciation on said intangibles at the rate applicable to intangible assets. The relevant findings of the Tribunal are as under:- "40. We have considered rival submissions and perused materials on record. Insofar as factual aspect of the issue is concerned, there is no dispute that by virtue of acquisition of M/s. Town and Country Assistance Ltd., various contracts executed by the said concern with third party clients were assigned to the assessee. It is also a fact that such acquisition took place by virtue of an agreement executed on 13 th January 2004. It is also ....