TaxTMI 
TaxTMI 
2020 (9) TMI 1286
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....e Act) read with Income-tax Rules, 1962 ('the Rules'). 2. The Hon'ble DRP/ learned AO / learned TPO erred in making an addition of Rs.67,437,268/ (Catalogue Manufacturing including Custom Synthesis / research services segment - Rs. 64,497,705/- and Information Technology ('IT') enabled services - Rs. 2,939,563/-) to the total income of the Appellant on account of adjustment in the arm's length price ('ALP') of the international transactions with its Associated Enterprises ('AE'). 3. Without prejudice to the above, the action of the Assessing Officer in passing draft assessment order which in substance is final assessment order is contrary to section 144C(1) of the Act and hence, liable to be quashed. 4. The Hon'ble DRP / learned AO/ learned TPO erred in not considering the multiple year financial data of comparable companies while determining the ALP of the international transactions of the Appellant. 5. The Hon'ble DRP/ learned AO/ learned TPO erred in using data as at the time of assessment proceedings, instead of that available as on the date of preparing the Transfer Pricing ("TP") documentation....
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....vely to its AEs. 6.5. Without prejudice, the Hon'ble DRP/ learned. AO/ learned TPO erred in. not considering the Cash Profit Margin as an appropriate Profit Level Indicator ('PLI') for the custom synthesis / research services having accepted the same in case of catalogue manufacturing operations to eliminate the impact of high depreciation cost in case of Appellant. 6.6. Without prejudice to the ground that appellant is entitled for adjustment of under-utilisation of capacity, the learned authorities below ought to have granted adjustment towards abnormal costs, in respect of manufacturing and alleged R & D segment. 6.7. The Learned TPO / DRP have erred in law and on facts in not applying export filter in manufacturing segment although said filter was applied in the case of alleged R&D segment and ITES segment. 6.8. The Hon'ble DRP erred in law and on facts in upholding the rejection of certain comparables selected by the appellant while carrying out its TP study in respect of manufacturing segment. 6.9. The Hon'ble DRP erred in law and on facts in upholding the selection of certain comparables finally selected by TPO....
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.... its margin from ITES segment 7.1.7. The learned TPO erred in law and on facts in applying RPT filter at 25% instead of 15%. 7.1.8. The Hon'ble DRP/ learned, AO/ learned TPO erred in not appreciating the difference in the risk profile of the Appellant vis-a-vis the comparables and thereby not allowing the benefit of appropriate adjustment towards the risk differential, when the comparables selected are full-fledged entrepreneurial companies. 8. That the appellant ought to have been allowed the benefit of proviso to section 92C(2) in respect of each segment of the appellant. 9. Without prejudice to the above, the learned TPO erred in law and on facts in making adjustment u/s 92CA in respect of non-AE transactions also instead of restricting it to AE transactions alone in respect of alleged R&D segment or manufacturing, if integrated with R&D. 10. The Hon'ble DRP ought to have held that the observations of the learned TPO that the appellant didn't raise any objection to the comparables selected by the TPO are perverse and hence, liable to be quashed. 11. Corporate Tax - Disallowance of Stock write-off on account of phy....
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....the facts and in the circumstances of the case the Dispute Resolution Panel erred in directing the AO to allow the claim of the assessee under the head 'Breakage leakage & Damage' without appreciating the fact that the assessee company is making huge claim under the head every year without any substantiation. 4. On the facts and in the circumstances of the case, the DRP erred in directing the AO to allow the claim of the assessee under the head "Expired Inventory" without appreciating the fact that the assessee company is making huge claim under the head every year without any substantiation. 5. On the facts and in the circumstances of the case, the DRP erred in directing the TPO to adopt Profit before Depreciation Interest and Taxes (PBDIT) on cost instead of Profit before Interest and taxes (PBIT) on cost without appreciating that Depreciation is not an operating expenditure. 6. On the facts and in the circumstances of the case, the DRP erred in deleting the comparable Clingine International Ltd, despite it being mainly focusing on clinical trials and research works and rightly selected by the TPO as a comparable to the assessee company. 7. On ....
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....ng materials 5,08,26,238 Q/C testing charges from chemicals 27,191 Management Fees 9,87,760 Customer Support services (ITES) 2,45,50,074 Payment of interest on loan 1,65,68,520 Reimbursement of SAP & IP Costs 5,19,00,175 7. Ld.TPO observed that, assessee had following segmental details recorded in TP documentation: Segment details Operative Revenue OP/OC Manufacturing (EOU unit) 11,03,57,902/- (-)52.2% Trading 215,84,97,500/- 7.93% R &D 1,22,10,111/- (-)79.49% ITES 2,45,50,073/- 12.72% 8. Ld.TPO did not object to margin computed by assessee under trading segment. Since taxpayers margin was not less than margin computed by Ld.TPO, the transaction was treated to be at arms length. 9. In respect of other 3 segments, Ld.TPO recomputed the margins. ITES segment: 10. Ld.TPO noted that, assessee followed TNMM as most appropriate method by using OP/OC as PLI. Ld.TPO noted that assessee used 8 comparables with average margin of 14.34%. Not agreeing with comparables selected by assessee, Ld.TPO finalised following set of 8 comparables with a....
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....dingly, called upon assessee in respect of 5 comparables selected under this segment. After considering the objections raised by assessee Ld.TPO, finalised following comparables with average margin of 10.45% with PLI OP/OC under TNMM. SI No Company Name OP / OC 1 Vimta Labs Ltd. 10.98% 2 Clinigene International 18.97% 2 Research Support Intl. Pvt. 5.85% 4 Cyber Media Research Ltd. 10.78% 5 Max Neeman Medical Intl. Ltd. 5.67% ARITHMETIC MEAN MARGIN 10.45% He thus proposed adjustment of Rs.5,32,74,095/-. 16. Ld.TPO thus proposed total adjustment of Rs.21,46,80,201/- to the arms length price. 17. Ld.AO while passing the draft assessment order observed that assessee has disclosed total turnover of Rs.20236,00,99,176/- and has shown net profit of Rs.4,46,00,706/- and gross profit of Rs.68,37,07,135/-. Ld.AO, thus worked out GP rate at 28.97%. And the net profit at 1.89%. Ld.AO noted that, in immediately preceding assessment year net profit declared by assessee was at 8.97% and that there was a fall in the net profit rate for the current year. Ld.AO, thereafter on examination of profit and loss account o....
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....ed that in order to offset higher cost on account of depreciation, it would be in the interest of Justice if PLI is charged from PBIT on cost, as against, adopted by Ld.TPO to PBDT. DRP thus directed Ld.TPO to compare margins by adopting the PLI to PBDT. 24. Assessee had also challenged exclusion of certain comparales, amongst which DRP rejected. R&D segment: 25. DRP noted that, Ld.TPO did not provide any adjustment for underutilisation of capacity and depreciation adjustment. DRP observed that assessee transfers both the process as well as intangible developed by it to the person for whom work is done. It was therefore of the opinion that the transfer should include all cost incurred by assessee. And that, assessee did not separately benchmark R&D function, though admittedly, it could perform independently of manufacturing activity. For R&D segment DRP rejected capacity underutilisation and depreciation adjustment. Assessee also challenged exclusion of certain comparales, amongst which DRP directed Ld.AO to verify RPT of Clinigene International Ltd., and observed that in the event RPT is more than 25% the comparable needs to be rejected. And in respect of Cyber Media R....
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....2008-09 by order dated 27/07/2015. He placed reliance on copy of order placed at page 1421 of paper book volume 3. 34. On the contrary, Ld.CIT DR placed reliance on observations of Ld.TPO. 35. We note that Ld. AO has rejected the entire claim of assessee under the head quality rejects, breakage leakage and damage, stock to Genosys physical differences in error in receipt of stock. 36. In respect of expired inventory Ld. AO noted that assessee debited a sum of Rs.80,75,287/- as shelflife expiry, due to oxidation, chemical break down, drying or moistening, microbial growth etc. Ld.AO was of the opinion that, assessee manufactured chemicals on need basis and on demand and it is not possible that company will manufacture more than that is required thereby leading to transpiration loss. Ld.AO accordingly, on assumption basis, disallowed 50% of the claim and added back to the income of assessee. 37. We note that all these disallowances have been addressed by coordinate bench of this Tribunal in assessee's own case in preceding assessment years. This tribunal while considering the disallowances has referred to various statistics to consider the reasonability of such claim. ....
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....nce and spirit of transaction is more important than the form and as income from production has been booked the cost of consumables also needs to be allowed to assessee. In the present facts also the DRP accepted assessee's contentions without verifying the same. 44. Accordingly, respectfully following the view taken by this Tribunal in assessee's own case for preceding assessment years, we direct Ld.AO to verify contentions of assessee and if found correct no disallowance shall be made. Quality rejects: 45. We note that, Ld.AO denied claim on assumption that, as assessee is in the business of high-quality organic and inorganic chemicals for a long time it should be meeting the quality standards which are usually known beforehand and also the process goes through different levels of checks before entering the market. 46. We note that in preceding years assessee had filed charged highlighting the ratio of on sales and on cost of goods sold quality rejection. Assessee is directed to provide such details for year under consideration. Ld.AO is directed to verify the same and allow the claim of assessee in accordance with observations of this Tribunal in assessee's own ca....
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....ced before us decision of Hon'ble High Court of Hydrabad, wherein, view taken by Hon'ble Hydrabad Tribunal, in case of BA Continuum India (P.) Ltd vs ACIT (supra) stands upheld in ITTA No.440/2014 by order dated 16/07/2014. Further Ld.AR submitted that, for assessment year 2011-12, assessing officer accepted depreciation to be and operating expense for purpose of computing margin. 54. We do not find any in infirmity in such observations of DRP as it is in consonance with the Transfer Pricing regulations for computing arm's length margin of international transaction. Accordingly these grounds raised by revenue stands dismissed. 55. Ground No.6-7 are in respect of exclusion of 2 comparables by DRP. 56. The outset Ld. CIT DR placed reliance on orders passed by learnt TPO. 57. Ld.AR submitted that assessee challenged exclusion of certain comparables, under R&D segment, amongst which DRP directed Ld.AO to verify RPT of Clinigene International Ltd., and observed that in the event RPT is more than 25% the comparable needs to be rejected. He submitted that related party transaction of this comparable admittedly is 32% of transaction with related parties as against gross revenue....
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....position to fully utilise the equipments purchased because of which an adjustment is warranted. He placed reliance on decision of coordinate bench of this Tribunal in case of M/s SKF Technologies India Pvt.Ltd vs DCIT in IT(TP)A No.341/Bang/2014 for assessment year 2004-05 by order dated 15/02/2019 in support of his contention. 68. On the contrary Ld. CIT DR placed reliance on the observations of DRP. She submitted that assessee transfers entire process as well as intangible developed by it under R&D segment, shows that the cost price should include price of such facilities created. And therefore there is no requirement to provide capacity utilisation to assessee. 69. We have perused submissions advanced by both sides in light of records placed before us 70. During the year under consideration, assessee has entered into international transaction with its AE in manufacturing segment and R&D segment. Under manufacturing segment admittedly assessee has utilisation of 28% and under R&D segment assessee has utilisation of 20%. This position has not been disputed by Ld.TPO. Assessee wide submission dated 08/01/2013 and 03/01/2013 placed at page 540 and 568 of paper book volume 1....
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....reafter, he restricted the reduction in operating costs of the assessee due to capacity utilization, to some Administrative costs and other expenses. As against the assessee's actual deduction of Rs. 6,65,79,916 for such selective items of administrative and other expenses, the TPO adjusted such costs to Rs. 6,30,30,739 by applying the factor of 29/54 (29%, being, the assessee's capacity utilization and 54%, being, the average capacity utilization of comparables chosen by him). Similarly, he reduced the amount of Depreciation claimed by the assessee at Rs. 1,19,60,921 to Rs. 64,23,458 by applying the same factor of 29/54. After allowing this capacity utilization adjustment, he determined OP/TC of the assessee at a loss of (-) 7.78%. Total cost of the assessee was taken at Rs. 36.88 crore. By applying the arithmetic mean of the profit rate of comparable companies chosen by him at 11.92%, he proposed a transfer pricing adjustment of Rs. 7,26,60,103/-, for which addition was made by the AO. The ld. CIT(A) accepted the assessee's contention about not making any TP adjustment in relation to non-AE transactions. The Revenue is not aggrieved to that extent. As regards adjustme....
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.... which,- (i) the net profit margin realised by the enterprise from an international transaction entered into with an associated enterprise is computed in relation to costs incurred or sales effected or assets employed or to be employed by the enterprise or having regard to any other relevant base ; (ii) the net profit margin realised by the enterprise or by an unrelated enterprise from a comparable uncontrolled transaction or a number of such transactions is computed having regard to the same base ; (ii) the net profit margin referred to in sub-clause (ii) arising in comparable uncontrolled transactions is adjusted to take into account the differences, if any, form where between the international transaction and the comparable uncontrolled transactions, or between the enterprises entering into such transactions, which could materially affect the amount of net profit margin in the open market ; (iv) the net profit margin realised by the enterprise and referred to in sub-clause (i) is established to be the same as the net profit margin referred to in sub-clause (iii) ; (v) the net profit margin thus established is then taken into account t....
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....gin of comparables. That is the way for bringing both the transactions, namely, the international transaction and the comparable uncontrolled transactions, on the same platform for making a meaningful and effective comparison. The above analysis overtly transpires that the law provides for adjusting the profit margin of comparables on account of the material differences between the international transaction of the assessee and comparable uncontrolled transactions. It is not the other way around to adjust the profit margin of the assessee. In other words, the net operating profit margin realized by the assessee from its international transaction is to be computed as such, without adjusting it on account of differences with the comparable uncontrolled transactions. The adjustment, if any, is required to be made only in the profit margins of the comparables. 9.4 Reverting to the facts of the instant case, we find that the authorities below have adjusted the operating costs of the assessee in allowing the capacity adjustment. As against that, the correct course of action provided under the law is to adjust the operating costs of the comparable and their resultant operating pro....
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....as capacity utilization of 50% as against the capacity utilization of 25% by the assessee. The above percentages show that the assessee has incurred full fixed costs with 25% of the utilization of its capacity, as against A incurring full fixed costs with 50% of its capacity utilization. This divulges that the assessee has incurred relatively more fixed costs and A has incurred lower costs. In order to make an effective comparison, there arises a need to obliterate the effect of this difference in capacity utilizations. It can be done by proportionately scaling up the fixed costs incurred by A so as to make it fully comparable with the assessee. This we can do by increasing the fixed costs of A to Rs. 200 (Rs. 100 into 50/25) as against the actually incurred fixed costs by it at Rs. 100. When we compute operating profit of A by substituting the fixed costs at Rs. 200 with the actually incurred at Rs. 100, it would mean that the fixed costs incurred by the assessee and A are at the same capacity utilization. There can be converse situation as well. Suppose the fixed costs incurred by a comparable (say, B) are Rs. 100 and it has capacity utilization of 25% as against the capacity uti....
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....cs Ltd., have been selected by learnt TPO/DRP in respect of manufacturing segment without applying export earning filter of less than 25% that was adopted to ITES and R&D segment. The Ld.AR submitted that, these companies do not have export sales as compared to assessee and that they primarily cater only to domestic market. 77. Ld. CIT DR submitted that this aspect has not been examined by the authorities below as assessee primarily did not adopt this filter. He also referred to the order passed under 92CA for assessment year 2010-11, wherein assessee is not adopting export filter for manufacturing segment. 78. We have perused submissions advanced by both sides in light of records placed before us. 79. We note that, Ld.TPO selected 12 comparables for manufacturing segment is by applying the same filters adopted by assessee with certain modifications. Now at this stage before this Tribunal in assessee is alleging that companies with export income less than 25% needs to be excluded. Further we note from the records placed before us that assessee manufactures its products for its group entities on need basis. No ground has been raised before DRP in respect of this issue. Asse....
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....ot as same as that of assessee. 85. On perusal of orders passed by authorities below, we note that this aspect has not been verified by DRP/AO/TPO. 86. Accordingly we remand this comparable to Ld. AO/TPO to verify contentions alleged by assessee in respect of this comparable. In the event the claim alleged by assessee is found to be correct, this comparable deserves to be excluded. Accordingly this ground raised by assessee stands allowed for statistical purposes. 87. Ground 7 is in respect of ITES segment wherein assessee seeks exclusion of certain comparables alleged in ground 7.13. It has been submitted that, in respect of other grounds assessee do not press the issues raised. 88. Gr.7.1.3: Assessee seeking exclusion of following for comparables for having functional dissimilarities: Infosys BPO Ltd Accentia technologies Ltd Cosmic Global Ltd e-Eclerx services Ltd 89. It has been submitted by the Ld.AR that, all these comparables have been considered by coordinate bench of this Tribunal in case of e-4-e Business Solutions India Ltd reported in (2015) 67 Taxmann.com 60 as under: Accentia Technologies Ltd. The....
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.... (ii) We have considered the rival submissions as well as relevant material on record. The first objection has been raised by the learned AR of the assessee on account of extraordinary event of acquisition/purchase of business by Accentia Technologies Ltd., whereby M/s. Oak Technologies Inc, USA has been acquired by this company during the year under consideration. Though the extraordinary event of merger or acquisition, if influenced the business as well as the revenue of a company then said company is not considered as a good comparable for the purpose of determination of the ALP however, in this case, it is not clear from the Annual Report whether the business of M/s. Oak Technologies Inc has been acquired and merged with the said company during the year under consideration. It appears that Accentia Technologies Ltd., has purchased up to 96% of the share holding of M/s. Oak Technologies. If it is only a transaction of purchase of shares of the said company then it may be a case of purchase of ongoing business and may not be a case of merging the same with the business of Accentia Technologies Ltd. In the absence of the relevant fact that the business of the said company has b....
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....his company cannot be considered as functionally comparable with the assessee. In support of his contention, he has relied upon the decision of the Special Bench of the Mumbai Tribunal in the case of Maersk Global Centres (India) (P.) Ltd. v. Asstt. CIT [2014] 43 taxmann.com 100/147 ITD 83. (i) On the other hand, learned Departmental Representative has submitted that this company is undisputedly in the business of ITeS and therefore, the nomenclature that of KPO will not make it functionally different from the assessee. He has relied upon the orders of the authorities below. (ii) We have considered the rival submissions as well as relevant material on record. We find that the company Eclerx Services Ltd. is engaged in diversified activity of providing services including analytic services and data process solutions to its global clients. The service provided by Eclerx Services Ltd., is in various areas including capital market and therefore, the services are in the nature of consultancy and end to end support through trade centre including trade confirmation, settlement, transaction, maintenance and analytic and reporting. Thus it is apparent from the nature of the....
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....o mainly engaged in providing high-end services involving specialized knowledge and domain expertise in the field and the same cannot be compared with the assessee company which is mainly engaged in providing low-end services to the group concerns. 83. For the reasons given above, we are of the view that if the functions actually performed by the assessee company for its AEs are compared with the functional profile of M/s eClerx Services Pvt. Ltd. and Mold-Tec Technologies Ltd., it is difficult to find out any relatively equal degree of comparability and the said entities cannot be taken as comparables for the purpose of determining ALP of the transactions of the assessee company with its AEs. We, therefore, direct that these two entities be excluded from the list of 10 comparables finally taken by the AO/TPO as per the direction of the DRP. Thus it is clear that the Special Bench found that this company is not comparable with BPO company which are engaged only in low end services of data processing. Accordingly, we direct the AO/TPO to exclude Eclerx Services Ltd. from the list of comparables for the purposes of determining ALP. 11.3 Infosys BPO Ltd. ....
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....formation provided in the Annual Report reads as under: "Amalgamation of PAN Financial Services India Private Limited The Board of Directors in their meeting held on October 6. 2008. approved, subject to the approval of the Honorable High Courts of Karnataka and Chennai, a Scheme of amalgamation ("the Scheme") to amalgamate PAN Financial Services India Private Limited ("PAN Financial"), a wholly owned subsidiary of the Company engaged in providing business process management of services, with the Company with effect from April 1. 2008 ("effective date"). The approval of the High Court was received on April 6, 2009 and filed with the respective Registrar of Companies of Karnataka and Tamilnadu on April 6, 2009 and March 10, 2009 respectively. Accordingly on the scheme becoming effective, the financial statement of PAN Financial has been merged with the company." It is clear that there was extraordinary event of amalgamation during the year under consideration. Therefore, in view of the extraordinary development of amalgamation of another company, this company cannot be considered as a good comparable for the assessment year under consideration. Apart from ....
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..... Thus, learned AR of the assessee has submitted that this company cannot be considered as functionally comparable with the assessee for the purpose of determining the ALP. In support of his contention, he has relied upon the decision of the co-ordinate bench of this Tribunal in the case of Lam Research (India) (P.) Ltd. v. Dy. CIT in ITA No. 1437/Bang/2014 dated 30/4/2015. (i) On the other hand, learned Departmental Representative has submitted that the comparability of this company has been examined by the TPO as well as by the DRP. The TPO has rejected the objections raised by the assessee in respect of this company by holding that the translation service are in the nature of ITeS and therefore, it qualifies all the filters applied by the TPO. He has relied upon the orders of the authorities below. (ii) We have considered the rival submissions as well as the relevant material on record. There is no dispute that this company is in the business of providing service of medical transcription and consultancy services, translations services and accounts BPO. The segmental revenue from the operations are given in schedule 8 to the Profit & Loss account which reveals t....
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....rations are at Rs. 7.37 crore divided into three segments, namely, Medical transcription and consultancy services at Rs. 9.90 lacs, Translation charges at Rs. 6.99 crore and Accounts BPO at Rs. 27.76 lac. The Id. AR has made out a case that outsourcing activity carried out by this company constitutes 57% of total expenses. The reason for which we are not agreeable with the Id. AR is that we have to examine the revenue of this case only from Accounts BPO segment and not on the entity level, being also from Medical transcription and Translation charges. When we are examining the results of this company from the Accounts BPO segment alone, there is no need to examine the position under other segments. The entire outsourcing is confined to Translation charges paid at Rs. 3.00 crore, which is strictly in the realm of the Translation segment, revenues from which are to the tune of Rs. 6.99 crore. If this segment of Translation is not under consideration for deciding as to whether this case is comparable or not, we cannot take recourse to the figures which are relevant for segments other than accounts BPO. Thus it is held that this case cannot be excluded on the strength of outsourcing ac....
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....herefore remand these comparables back to Ld.AO/TPO to ascertain financial results by extrapolating from the annual accounts. Also in respect of Lee& Nee Software, Ld.AO/TPO is directed to ascertain functions performed being whether ITES or software development company. In the event it is found to be having ITES segment, the same may be considered for purpose of comparability with assessee. Accordingly these grounds raised by assessee stands allowed for statistical purposes. 96. Insofar as ground No. 7.1.6 and 7.1.7 is concerned Ld. A.R. has not advanced any arguments and accordingly no finding has been recorded herein. Accordingly these grounds are dismissed. Accordingly Ground No.7 stands allowed as indicated hereinabove. 97. Ground No.9 is in respect of adjustment proposed by Ld.TPO/AO on entity level u/s.92.CA of the Act. 98. Referring to Form 3CEB, Ld.AR submitted that Ld.AO made addition u/s.92CA which includes non AE transaction. He submitted bifurcation of revenue earned as under: Particulars Amount in Rs. % AE 62,92,374/- 51.53% Non-AE 59,17,111/- 48.47% 99. He also submitted that, adjustment under section 92CA cannot exceed ....