2012 (9) TMI 1003 - AT - Income Tax

Deduction u/s. 10A before setting off unabsorbed business losses/depreciation carry forward losses from the earlier years allowed Transfer pricing adjustment - comparability - Held that - We find that the grievance of both the parties are against exclusion of the super profit making comparables and the low profit making comparables from the list of comparables adopted by the TPO. We find that the CIT(A) has not given any reasoning for such exclusion. As far as Infosys is concerned, we find that it satisfies the turnover filter, as its turnover is 6,850 crores as against the assessee s turnover of 8.29 crores. So the said company is rightly excluded from the list of comparables. But however, as regards other comparables with both high margin and low margin companies, we are of the opinion that the CIT(A) ought to give reasoning before excluding the same. As the order of the CIT(A) is silent as regards the reason for their exclusion, we deem it fit and proper to remit the issue back to the file of the CIT(A) for reconsideration

Summary

Issues:
1. Determination of arm's length price of international transaction.
2. Denial of deduction u/s 10A of the Act based on set off of losses.
3. Transfer pricing adjustment and exclusion of comparables.

Issue 1: Determination of Arm's Length Price of International Transaction:
The appeals involved cross appeals by the assessee and the Revenue against the order of the Commissioner of Income-tax. The primary issue raised by the assessee related to the determination of the arm's length price of the international transaction with its associated enterprise. The assessee did not press certain grounds related to natural justice and the procedure of making reference to the TPO u/s 92CA of the Act. The Tribunal directed the AO to allow deduction u/s 10A of the Act before setting off unabsorbed business losses/depreciation carry forward losses from earlier years, citing a decision of the Hon'ble Karnataka High Court.

Issue 2: Denial of Deduction u/s 10A of the Act Based on Set Off of Losses:
The dispute arose from the denial of deduction u/s 10A of the Act by the AO during the assessment proceedings. The AO disallowed the claim as the income arrived at after reducing the loss for the assessment year 2002-03 set off by the assessee was 'Nil'. The CIT(A) confirmed the AO's decision, leading to the assessee's appeal. The Tribunal, after considering the submissions and the decision of the Hon'ble Karnataka High Court, directed the AO to allow the deduction u/s 10A before setting off losses, thereby allowing the ground of appeal.

Issue 3: Transfer Pricing Adjustment and Exclusion of Comparables:
Regarding the transfer pricing adjustment, the TPO quantified the arm's length price and suggested adjustments, which the AO accepted after considering the assessee's objections. The CIT(A) made certain exclusions and adjustments to the comparables identified by the TPO. The Tribunal noted objections raised by both parties against the exclusion of super profit-making companies and comparables with lower margins. It was observed that the CIT(A) did not provide reasoning for the exclusions, leading the Tribunal to remit the issue back to the CIT(A) for reconsideration in light of judicial precedents and for passing a detailed order, ensuring a fair opportunity of hearing for the assessee.

In conclusion, the judgment addressed various issues related to the determination of arm's length price, denial of deduction u/s 10A based on set off of losses, and transfer pricing adjustments with the exclusion of comparables. The Tribunal provided detailed analysis and directions for each issue, ensuring a fair consideration of legal precedents and principles.