2016 (7) TMI 1281 - AT - Income Tax

Transfer pricing adjustment - working capital adjustment by TPO - Held that - Since the TPO has not complied with the directions given by the DRP therefore, we set aside this issue to the record of the TPO/A.O. for giving the proper working capital adjustment without any restriction as held by the co-ordinate bench of this Tribunal in the case of Citrix R & D India Pvt. Ltd. 2016 (2) TMI 1050 - ITAT BANGALORE wherein it was held that the TPO cannot restrict the working capital adjustment artificially from the actual computation. Non-allowance of capacity utilisation adjustment - Held that - he assessee has bench marked its international transactions in manufacturing segment by considering the composite transaction of sale as well as royalty paid to the AE. The TPO has separated the royalty from manufacturing transaction segment and treated the ALP at Nil. We have already set aside the issue of ALP of royalty to the record of the TPO/A.O. As regards the issue raised in the manufacturing segment for non-grant of working capital adjustment abnormal expenditure and non-allowance of capacity utilisation, we find that it is the first year of the assessee s manufacturing activity then the issue of capacity utilisation adjustment is required to be examined by considering the level of capacity utilisation of the assessee as well as the comparable. Accordingly, we set aside this matter of TP Adjustment in manufacturing segment to the record of the TPO to consider the adjustment on account of capacity under-utilisation as well as excluding the abnormal expenditure. Needless to say that the assessee be given an appropriate opportunity of hearing before deciding the issue afresh. Comparability selection - Held that - As assessee is into international transactions in software development services the companies functionally dissimilar with that of assessee need to deleted from final list of comparability. Considering the Arm s Length Price ( ALP ) of Royalty at Nil - Held that - As the assessee has produced the relevant evidence including the license agreement under which the Royalty has been paid to AE therefore, in the facts and circumstances of the case, we set aside this issue to the record of the TPO / TPO to re-examine the issue as per the provisions of transfer pricing and in the light of the evidence produced by the assessee as well as the T.P. order passed under Section 92CA for the Assessment Year 2012-13. Incorrect computation of operating margin of the assessee and proportionate T.P. Adjustment - Held that - We find merit in the contention of the assessee that if sub-lease income is excluded from the operating profit then corresponding lease expenditure shall also be excluded from the operating cost while computing the operating margin of the assessee. Accordingly, we set aside this issue to the record of the A.O./TPO to compute the operating margin of the assessee after excluding the corresponding lease expenditure from the operating cost. The TPO is also directed to confine the adjustment to the value of international transactions only.

Issues Involved:
1. Transfer Pricing Adjustment
2. Non-grant of Working Capital Adjustment
3. Abnormal Expenditure Considered as Operating in Nature
4. Non-allowance of Capacity Utilisation Adjustment
5. Arm’s Length Price of Royalty and Service Charges
6. Double Disallowance of Royalty and Service Charges
7. Incorrect Computation of TP Adjustment
8. Proportionate TP Adjustment
9. Non-consideration of Contemporaneous Data
10. Use of Additional Filters, Rejection of Filters, and Modification of Filters
11. Rejecting Certain Comparable Companies
12. Computation of Operating Margins
13. Adjustment for Differences in Function, Asset, and Risk Profile
14. Computation of Losses and Unabsorbed Depreciation Available for Setoff
15. Transfer Pricing Adjustment without Benefit of +/- 5% Variation
16. Non-consideration of Multiple Year Data
17. Penalty Proceedings
18. Exclusion of Foreign Exchange Fluctuation and Other Income for Operating Margins

Detailed Analysis:

1. Transfer Pricing Adjustment:
The Tribunal addressed the general ground related to the transfer pricing adjustment amounting to ? 44,06,38,914. The Tribunal noted that the TPO did not accept the economic analysis undertaken by the appellant and conducted a fresh economic analysis for determining the arm’s length price (ALP) in connection with various international transactions.

2. Non-grant of Working Capital Adjustment:
The Tribunal observed that the TPO/A.O. did not make suitable adjustments for differences in working capital employed by comparable companies despite the DRP's directions. The Tribunal set aside this issue to the TPO/A.O. for proper working capital adjustment without any restriction.

3. Abnormal Expenditure Considered as Operating in Nature:
The Tribunal noted the appellant's grievance regarding certain abnormal expenditures being considered as part of operating costs for computing margins. This issue was set aside for re-examination by the TPO/A.O.

4. Non-allowance of Capacity Utilisation Adjustment:
The Tribunal acknowledged the appellant's contention regarding the non-allowance of capacity utilisation adjustment due to its initial year of manufacturing operations. The issue was set aside to the TPO/A.O. for consideration of capacity utilisation differences.

5. Arm’s Length Price of Royalty and Service Charges:
The Tribunal found that the TPO determined the ALP of royalty and service charges as NIL due to lack of evidence from the appellant. The Tribunal set aside this issue to the TPO/A.O. for re-examination and consideration of the license agreement and other evidence provided by the appellant.

6. Double Disallowance of Royalty and Service Charges:
The Tribunal directed the TPO/A.O. to reduce the value of royalty and service charges while computing the operating cost of the appellant for determining the PLI, after considering the ALP of the same as NIL.

7. Incorrect Computation of TP Adjustment:
The Tribunal noted the incorrect computation of TP adjustment by reducing the amount of sales price received from the AE and not the operating revenues. This issue was set aside to the TPO/A.O. for proper computation.

8. Proportionate TP Adjustment:
The Tribunal directed the TPO/A.O. to restrict the transfer pricing adjustment to the value of international transactions pertaining to manufacturing operations of the appellant.

9. Non-consideration of Contemporaneous Data:
The Tribunal addressed the appellant's grievance regarding the use of data not available at the time of complying with transfer pricing documentation requirements. This issue was part of the overall transfer pricing adjustment considerations.

10. Use of Additional Filters, Rejection of Filters, and Modification of Filters:
The Tribunal noted the appellant's contention regarding inappropriate introduction, rejection, and modification of filters by the TPO. This issue was part of the overall transfer pricing adjustment considerations.

11. Rejecting Certain Comparable Companies:
The Tribunal addressed the appellant's grievance regarding the rejection of certain companies based on unreasonable comparability criteria. This issue was part of the overall transfer pricing adjustment considerations.

12. Computation of Operating Margins:
The Tribunal noted the appellant's contention regarding the incorrect computation of operating margins of the tested party and working capital adjusted margins of comparable companies. This issue was part of the overall transfer pricing adjustment considerations.

13. Adjustment for Differences in Function, Asset, and Risk Profile:
The Tribunal addressed the appellant's grievance regarding the non-adjustment for differences in function, asset, and risk profile. This issue was part of the overall transfer pricing adjustment considerations.

14. Computation of Losses and Unabsorbed Depreciation Available for Setoff:
The Tribunal noted the appellant's contention regarding errors in computing losses and unabsorbed depreciation available for setoff. This issue was part of the overall transfer pricing adjustment considerations.

15. Transfer Pricing Adjustment without Benefit of +/- 5% Variation:
The Tribunal addressed the appellant's grievance regarding the non-consideration of the benefit of +/- 5% variation from the mean while computing the ALP. This issue was part of the overall transfer pricing adjustment considerations.

16. Non-consideration of Multiple Year Data:
The Tribunal noted the appellant's contention regarding the non-allowance of multiple year data for determining the ALP. This issue was part of the overall transfer pricing adjustment considerations.

17. Penalty Proceedings:
The Tribunal addressed the appellant's grievance regarding the initiation of penalty proceedings under section 271(1)(c) and levying interest under sections 234A, 234B, and 234D of the Act. This issue was part of the overall transfer pricing adjustment considerations.

18. Exclusion of Foreign Exchange Fluctuation and Other Income for Operating Margins:
The Tribunal admitted the additional ground raised by the appellant regarding the inclusion of foreign exchange fluctuation in the operating margins of the appellant and comparable companies. The Tribunal directed the TPO/A.O. to compute the operating margins by including the gain/loss due to foreign exchange fluctuation in respect of sale proceeds.

Separate Judgments:
The Tribunal delivered a comprehensive judgment addressing all issues raised by the appellant and the revenue. The Tribunal's directions for re-examination and re-computation by the TPO/A.O. were consistent across various issues, ensuring a thorough and fair reconsideration of the matters involved.

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