2016 (5) TMI 1321 - AT - Income Tax

TPA - ALP determination - Held that - TPO is empowered to substitute the arm s length price on the basis of material or information furnished by the assessee or collected by him. In case, such an authority has been delegated to the TPO and in exercise of such authority, certain information is collected by the TPO, which in turn, is confronted to the assessee and thereon applied to determine the arm s length price of international transaction, the said exercise of the jurisdiction by the TPO cannot possibly be questioned.Accordingly, we find no merit in the claim of assessee in this regard and upholding the action of TPO, the grounds of appeal raised by the assessee are dismissed. Disallowance of stock written off in Domestic Tariff Area unit - Held that - The assessee has furnished additional evidence along with letter dated 29.12.2012, wherein the assessee has submitted the evidence in relation to stock written off in the case of materials with Excise Registers and in the case of finished goods trading with quarterly excise returns. The assessee claimed that it had written off its stock, however, evidence in this regard has been filed by way of additional evidence before us. We are of the view that the said evidence going to the root of the issue, needs to be admitted and after admitting the same, we deem it fit to restore this issue back to the file of Assessing Officer, who shall verify the claim of assessee in this regard and decide the issue in accordance with law. Computation of deduction under section 10B - Held that - Applying the ratio laid down by the Hon ble Bombay High Court in CIT Vs. Black & Veatch Consulting Pvt. Ltd. (2012 (4) TMI 450 - BOMBAY HIGH COURT) we hold that the deduction under section 10B of the Act is to be computed before adjusting brought forward unabsorbed losses/depreciation. The learned Authorized Representative for the assessee had not raised any other issue except pointing out that the issues stands covered by the order of Tribunal. In view thereof, we direct the Assessing Officer to recompute the deduction under section 10B of the Act without setting of brought forward and unabsorbed depreciation of earlier years.

Issues Involved:
1. Conducting an unjustified fresh search for identifying additional comparable companies and using non-contemporaneous data.
2. Consideration of companies as comparable which were not available in the public domain at the time of complying with the regulations.
3. Use of single year data.
4. Disallowance of stock written-off in Domestic Tariff Area (DTA) unit.
5. Claim of deduction under section 10B of the Act from the total income and not at source level.
6. Set-off of brought forward unabsorbed depreciation before claiming deduction under section 10B of the Act.
7. Erroneous levy of interest under section 234B of the Act.

Detailed Analysis:

1. Conducting an Unjustified Fresh Search for Identifying Additional Comparable Companies and Using Non-Contemporaneous Data:
The Tribunal examined the assessee's grievance that the TPO conducted a fresh search for additional comparable companies and relied on data not available at the time of complying with transfer pricing regulations. The Tribunal found no merit in the claim, stating that the TPO is empowered to use any data available in the public domain, even if it was published later, as long as it pertains to the relevant financial year. The Tribunal upheld the TPO's action, emphasizing that the TPO's exercise of power to determine the arm's length price based on the latest available data is justified.

2. Consideration of Companies as Comparable Which Were Not Available in Public Domain at the Time of Complying with the Regulations:
The Tribunal addressed the assessee's objection to the inclusion of DEKI Electronics Ltd. and Tibrewala Electronics Ltd. as comparables, whose data was not available in the public domain at the time of documentation. The Tribunal held that the data, although published later, was relevant for the financial year in question and could be used by the TPO. The Tribunal rejected the assessee's argument, stating that the TPO is justified in using such data after confronting it to the assessee.

3. Use of Single Year Data:
The Tribunal deliberated on the use of single year data versus multiple years' data for computing the Profit Level Indicator (PLI) of comparables. It referred to Rule 10B(4) of the Income Tax Rules, which mandates the use of data for the financial year in which the international transaction took place. The Tribunal found no fault with the TPO's use of single year data, rejecting the assessee's contention that multiple years' data should be used. The Tribunal emphasized that the variation in PLI by itself does not justify invoking the proviso to Rule 10B(4).

4. Disallowance of Stock Written-off in Domestic Tariff Area (DTA) Unit:
The Tribunal considered the assessee's claim for the deduction of stock written-off amounting to ?1,387,520. The Tribunal admitted additional evidence provided by the assessee and remanded the issue back to the Assessing Officer for verification. The Tribunal directed the Assessing Officer to verify the claim and decide the issue in accordance with the law, providing the assessee with a reasonable opportunity of hearing.

5. Claim of Deduction under Section 10B of the Act from the Total Income and Not at Source Level:
The Tribunal examined the assessee's claim for deduction under section 10B of the Act from the total income instead of at the source level. It referred to the decision in the assessee's own case for the assessment year 2005-06, where it was held that the deduction under section 10B should be computed before adjusting brought forward unabsorbed losses/depreciation. The Tribunal followed the same reasoning and directed the Assessing Officer to recompute the deduction under section 10B without setting off brought forward unabsorbed depreciation.

6. Set-off of Brought Forward Unabsorbed Depreciation Before Claiming Deduction under Section 10B of the Act:
The Tribunal reiterated its decision from the assessee's earlier case, holding that the deduction under section 10B should be computed before adjusting brought forward unabsorbed losses/depreciation. The Tribunal directed the Assessing Officer to recompute the deduction accordingly, allowing the assessee's ground of appeal.

7. Erroneous Levy of Interest under Section 234B of the Act:
The Tribunal noted that the issue of levy of interest under section 234B is consequential to the adjustments made. Since the primary issues were being remanded or decided, the Tribunal dismissed this ground as premature, stating that the levy of interest would depend on the final computation of income.

Conclusion:
The appeal was partly allowed. The Tribunal upheld the TPO's actions regarding the use of fresh search data and single year data, dismissed the assessee's objections on these grounds, and remanded the issue of stock write-off for verification. The Tribunal also directed the recomputation of deduction under section 10B without setting off brought forward unabsorbed depreciation. The levy of interest under section 234B was deemed consequential and dismissed as premature.

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