2013 (1) TMI 794 - AT - Income Tax

Determination of Arm s length Price - Held that - assessee adopted transaction net margin method (TNMM)to determine the ALP - TPO however rejected the assessee s objections and selected 26 external companies as comparables - In the case of software services rendered by the appellant to its AE the functions performed by the appellant were the same as those performed by unrelated parties (Non-AEs) - internal TNMM was selected as the most appropriate method - internal comparables are more appropriate and are to be given precedence over external comparables - The computation of arm s length price in case of TNMM is done as per Rule 10B(1)(e) - assessee had also filed detailed functional similarity as well as the methodology of apportionment of expenses - TPO to adopt the internal TNMM instead of external TNMM - TPO to verify the cost allocation and the PLI and margin computation of software services rendered by the assessee to its AE - Remanded back for statistical purposes Deduction u/s 10A - computed the business loss - Held that - deduction under section 10A is undertaking specific and should be computed without considering the losses of other industrial units which is a non-STP unit - Decided in favor of assessee

Issues Involved:
1. Transfer Pricing Issue
2. Deduction under Section 10A of the Act
3. Levy of Interest under Section 234D of the Act

Detailed Analysis:

I) Transfer Pricing Issue
The primary issue raised by the assessee pertains to the rejection of internal comparables selected by the appellant and the rejection of the transfer pricing analysis of the appellant by the lower authorities. The assessee, engaged in software development services and IT-enabled services, adopted the Transaction Net Margin Method (TNMM) to justify the price charged in international transactions with its Associated Enterprises (AE). The assessee compared the net margin earned from services rendered to its AE with the net margin earned from services rendered to non-AE (Internal TNMM).

The Transfer Pricing Officer (TPO) issued a show-cause notice proposing to redetermine the arm's length price for the software development services, raising doubts about the apportionment of salary and other expenses between AE and non-AE segments, functional similarity, and billing models. The TPO rejected the internal TNMM applied by the assessee and adopted external TNMM, selecting 26 external companies as comparables and determining the transfer pricing adjustment at Rs. 1,79,47,930.

The Dispute Resolution Panel (DRP) upheld the TPO's adjustments, and the Assessing Officer incorporated these adjustments while determining the total income. The assessee filed detailed objections with the DRP, which were rejected. The assessee argued that internal comparables should be given precedence over external comparables, citing Rule 10B(1)(e) and various judicial precedents supporting the preference for internal comparables.

The Tribunal observed that the internal comparables are more appropriate and should be given precedence over external comparables, directing the Assessing Officer/TPO to adopt the internal TNMM instead of external TNMM. The issue was restored to the file of the Assessing Officer/TPO to verify the cost allocation and the PLI and margin computation between the software services rendered by the assessee to its AE vis-`a-vis the non-AE and to determine if the international transaction with the AE is within the arm's length range profit under the TP regulation.

II) Deduction under Section 10A of the Act
The assessee claimed a deduction of Rs. 61,39,512 under Section 10A of the Act, which the Assessing Officer held should be allowed from the total income computed after setting off the loss of other units, resulting in a 10A deduction considered as NIL. The assessee argued that the deduction under Section 10A is undertaking specific and should be computed without considering the losses of other units, citing the judgment of the Hon'ble High Court of Karnataka in ACIT v Yokogawa.

The Tribunal, following the judgment of the Hon'ble jurisdictional High Court, held that Section 10A is allowable without setting off the losses of other units. The income of the 10A unit has to be excluded before arriving at the gross total income of the assessee, and the loss of non-10A units cannot be set off against the income of the 10A unit under Section 72. Therefore, the deduction under Section 10A should be allowed prior to setting off the losses of other industrial units.

III) Levy of Interest under Section 234D of the Act
The levy of interest under Section 234D of the Act is mandatory and consequential in nature. The Tribunal dismissed the ground challenging the levy of interest under Section 234D.

Conclusion
The appeal was partly allowed, with the Tribunal directing the adoption of internal TNMM for transfer pricing and allowing the deduction under Section 10A prior to setting off losses of other units. The challenge to the levy of interest under Section 234D was dismissed.

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