TaxTMI 
TaxTMI 
2023 (9) TMI 96
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....y the assessee in TPSR? 2. Whether on the facts and circumstances of the case the learned CIT(A) has erred in accepting the assessee's contention that the comparables engaged in 'the distribution function can be used with FAR analysis of assessee's in Marketing Support Services, also? 3. When as per the agreement the assessee is entitled to retain only 3.5% of its sales to third party, whether the CIT(A) was correct in holding that the revenue transaction is not a tainted transaction and allowing the assessee to consider PLI at OP/OR level instead of OP/OC? 4. Whether on the facts and circumstances of the case the learned CIT(A) has erred in concluding that Dynacons Technologies, Integra Telecommunications and JMD Telefilms are functionally comparable to MSC India?" 2. The assessee in Cross Objection Appeal No. 53/PUN/2022 has raised the following grounds of appeal : "1. On the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in dismissing the following grounds of appeal (Ground 2.2, 2.3, 2.4, 2.7, 2.8, 2.9 and 2.11) of the respondent raised before the Ld. CIT(A) considering them academic: 2.2. Disregar....
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....s applied TNMM Method to benchmark the transactions. Accordingly, assessee selected the companies comparable to its functions. However, in the transfer pricing order, TPO held that the main activity of the assessee is marketing activity and assessee is getting remunerated for marketing functions with a fixed mark-up. Accordingly, the TPO carried out the search and arrived at following comparables : "9.1.8. Considering the above, the final set of comparables engaged in MSS activity are as follows : Sr. No Company Name Combined weighted average OP/OC 1 D D B Mudra Pvt. Ltd. -1.35% 2 Publicis Communications Pvt. Ltd. 2.08% 3 I C R A Management Consulting Services Ltd. 3.73% 4 Pressman Avertising Ltd 10.94% 5 Concept Public Relations India Ltd 11.45% 6 Kestone Integrated Mktg. Services Pvt. Ltd. 11.92% 7 Paradigmplus Marketing Communications Pvt. Ltd. 12.72% 8 Majestic Research Services & Solutions Ltd. 18.83% 9 Fcbulka Advertising Pvt. Ltd. 37.41% 10 Platinum Advertising Pvt. Ltd. 46.51% 11 Cheil India Pvt. Ltd. 61.88% Date place Range Adjusted Weight....
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....nd circumstances of the case the learned CIT(A) has erred in accepting the assessee's contention that the comparables engaged in the distribution function can be used with FAR analysis of assessee's in Marketing Support Services, also? 3. When as per the agreement the assessee is entitled to retain only 3.5% of its sales to third party, whether the CIT(A) was correct in holding that the revenue transaction is not a tainted transaction and allowing the assessee to consider PLI at OP/OR level instead of OP/OC? 4. Whether on the facts and circumstances of the case the learned CIT(A) has erred in concluding that Dynacons Technologies, Integra Telecommunications and JMD Telefilms are functionally comparable to MSC India? 5. It is observed that this appeal is time barred by 68 days and the ld. AR raised no objection regarding condonation of delay. Having heard the submissions of the parties, the delay is condoned and the case is heard on merits. 6. The issue for adjudication in this appeal is broadly whether the assessee is in distribution support services or is doing marketing support services as held by the TPO. The ld. TPO has given his find....
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.... • The AE has discretion to accept or reject the order. • If accepted, the delivery of product is the responsibility of AE. Company will deliver product directly to end customer and Company will provide assessee, notification of such delivery. • Customer makes payment to assessee. • Assessee retains 3.5% of revenue from the receipts from customers and remaining amount is passed on to company i.e. AE. • The copy of agreement with customer is done in a format approved by Company. Further Company has right to call for periodic report regarding activities of assessee and verify its books which assessee has to comply, (Clause 3.8 and 3.9 of the agreement) Thus as can be seen from the above discussion, the main activity of the assessee is marketing activity. Otherwise ownership of the product is with AE, the power to determine whether to accept/ reject order and pricing is with AE. So assessee is getting remunerated for marketing function only with a fixed mark up." 7. Thus, the TPO held that the main activity of the assessee is the marketing activity. Otherwise ownership of the product is with the AE, the ....
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....e of them are into trading or computer hardware and software. They are into trading activity who will purchase different products from various companies, will have inventory of those products and will sell in retail market. However functions performed by assessee are different. Assessee is mainly into marketing of products. The ownership and inventory of products is with AE. The orders are placed by assessee to AE and finally delivery is also given by AE. Thus role of assessee is marketing of products and support services. Thus the comparables selected by assessee cannot be considered as comparables due to different functional profile. Thus herewith it is held that activity of assessee is marketing support activity." 8. The ld. CIT(A) on the other hand, allowed the appeal of the assessee holding the activities of the assessee to be distribution support services while relying on the assessee's own case for A.Y. 2013-14 where the predecessor CIT(A) has accepted the software distribution functions of the assessee. It was held that since there is no change in the facts for the year under consideration as compared with the facts of A.Y. 2013-14 relief was provided to the assess....
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....mmercially reasonable manner, including but not limited to, participating in trade shows and exhibitions and performing marketing presentations. Reseller shall, at its own expense, have the right to prepare localized Product descriptions and promotional materials as it considers appropriate for the successful marketing of the Products in the Territory. Reseller shall and hereby does assign to Company or its designee any and all copyrights and/or other proprietary rights in such Product descriptions, promotional materials, and other related localized materials effective upon the date of creation thereof by Reseller. 3.3 End-User Agreements. Reseller shall cause each customer to which any of the Products are delivered to agree to an End-User Agreement in a form which has been approved by Company which is attached hereto as Exhibit A. Reseller shall provide Company with copies of each End-User Agreement in accordance with those policies communicated by Company to Reseller from time to time. 3.4 Sub-reseller Agreements. Reseller shall have the right to appoint Sub-reseller(s). Reseller shall cause each Sub-reseller (if any) to execute a Sub-reseller Agreement....
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.... such information as requested by Company. Reseller shall provide such information to Company as and when requested. Reseller shall also immediately report to Company all claimed or suspected Product defects. Section 4 - Obligations of Company 4.1 Marketing Materials. Company shall, at no cost, provide Reseller with a reasonable quantity of marketing and promotional materials to assist Reseller in its marketing activities hereunder. 4.2 Technical Support. Company shall provide Reseller with reasonable technical assistance with respect to the Products in the Territory. 4.3 Performance of Maintenance Contracts. The Parties acknowledge and agree that Company shall be responsible for providing Enhancements, as that term is defined in the Company's standard end-user agreement, and unless otherwise agreed, that Reseller shall be responsible for the performance of technical support services under the maintenance contracts sold by Reseller hereunder; provided that Reseller may, from time to time, request Company to assist with the performance of such services, on such terms as agreed between the Parties. Section 5 - Purchase Orders and Deliv....
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.... general and administrative expenses, and all other costs not explicitly excluded from Costs. "Net Revenue" shall mean and include total gross revenues recognized by Reseller from selling the Products, related maintenance contracts, training and support services to third parties, computed under U.S. Generally Accepted Accounting Principles ("US GAAP"), less any credits, discounts, allowances, returns, refunds, and deferred revenue items which were previously recognized for transfer pricing purposes, with respect to such Products and excluding any consumption tax or similar taxes applied to such Products. For purposes of calculating the Operating income under this Agreement, "Costs" shall mean all direct and indirect costs incurred by Reseller in connection with marketing and selling the Products, maintenance contracts and support services to third parties in the Territory (excluding the Purchase Price specified in Section 6.1), computed under US GAAP. For the avoidance of doubt, "Costs" relate only to the marketing and support activities performed by Reseller hereunder, and exclude stock based compensation, foreign exchange gains/losses, interest income/expense, a....
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....ssee is only getting 3.5% of the revenue from the receipts of the customers for the marketing function that it is doing. We, therefore, set aside the findings of ld. CIT(A) and restore the order of ld. TPO. The grounds of appeal of Revenue are allowed. The appeal of Revenue in ITA No.375/PUN/2022 is allowed. 11. Now, we shall adjudicate Cross Objection by the assessee and the grounds of objections are as follows: "1. On the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in dismissing the following grounds of appeal (Ground 2.2, 2.3, 2.4, 2.7, 2.8 and 2.10) of the respondent raised before the Ld. CIT(A) considering them academic: 2.2. Disregarding the benchmarking analysis adopted as part of TP Study Report 2.3 Selection/ rejection of filters and failing to provide the accept reject matrix and search process 2.4 Correct profitability if the Respondent is to be compared to marketing support service providers 2.7 Not giving due consideration to the pricing arrangement for the selection of comparables 2.8 Selection of functionally non comparable companies for the purpose of determining the ALP ....
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.... an item of operating revenue. This ground, is therefore, allowed." 14. Respectfully following the decision cited hereinabove, we hold thatforex gain is operating in nature and accordingly, ground of objection No.2 is allowed. 8. Thus, ITAT Pune in ITA No.375/PUN/2022 held that the assessee's main activity is marketing activity and accordingly upheld the order of the TPO qua the nature of the activity of the assessee. 9. Respectfully following the decision of ITAT Pune in ITA No.375/PUN/2022 (supra), we uphold the order of the TPO qua nature of the activity. We hereby hold that assessee's main activity is marketing activity. Therefore, comparable engaged in Distribution Activity, as selected by the assessee in TPSR, are not comparable to the functions performed by the assessee. Accordingly, Ground No's.1 to 3 raised by the Revenue are Allowed. Rebuttal of AR's submission: 10. In this case Ld.AR vehemently argued that the ITAT's order in assessee's own case for A.Y. 2015-16 have failed to appreciate the functions of the assessee properly and hence the said ITAT order shall not be followed. We specifically asked the Ld.AR whether the activities under taken by....