2015 (9) TMI 1547 - AT - Income Tax

TPA - selection of comparable - Held that - The assessee is a products development company and has developed innovative product lines, thus companies Functionally different and diversified operations with that of assessee need to be deselected from final list of comparable. Expenditure incurred on computer spare parts and consumables - nature of expenditure - Held that - RAM is a frequently replaceable part of the computer and does not have any enduring benefit to assume the character of a capital expenditure and hence we allow the same. See CIT v/s Southern Roadways 2007 (6) TMI 193 - MADRAS HIGH COURT TDS u/s 194C - Non deduction of tds - disallowance of payment made to Club Cabana and Golden palms and for business training and conference expenses u/s. 40(a)(ia) - Held that - As in the case of East India Hotels Ltd. v. CBDT 2009 (3) TMI 8 - BOMBAY HIGH COURT wherein it was held that services rendered by hotel to its customers by making available certain facilities/amenities like providing multilingual staff, 24 hour service for reception, telephones, select restaurants, bank counter, beauty saloon, barber shop, car rental, shopping centre, laundry/valet, health club, business centre services, etc. do not involve carrying out any work which results into production of the desired object and, therefore, would be outside the purview of section 194C of the Act. Thus we are of the opinion that payment made to Club Cabana and Golden Palms are outside the purview of section 194C of the act. The appeal on this issue is allowed.

Issues Involved:

1. Transfer Pricing Adjustment
2. Functional Dissimilarity of Comparables
3. Working Capital Adjustment
4. Treatment of Expenditure on Computer Spare Parts and Consumables
5. Disallowance of Payments to Club Cabana and Golden Palms
6. Credit in Respect of Advance Tax and Charging of Interest

Detailed Analysis:

1. Transfer Pricing Adjustment:

The assessee, a wholly owned subsidiary of Apigee Corporation, USA, filed a return declaring NIL income after claiming a deduction under section 10A of Rs. 1,69,53,978. The case was referred to the Transfer Pricing Officer (TPO) who made an adjustment of Rs. 21,131,649 to the Arm's Length Price (ALP) of international transactions. The final assessment order assessed the total income at Rs. 2,11,31,649 after allowing a deduction of Rs. 1,80,54,350 under section 10A, resulting in a demand of Rs. 86,55,052.

2. Functional Dissimilarity of Comparables:

The TPO selected 20 comparables with an arithmetic mean of 23.65%, whereas the assessee's comparables had a mean of 9.01%. The assessee objected to 11 comparables selected by the TPO on the grounds of functional dissimilarity. The Tribunal found merit in the assessee's objections and directed the exclusion of Avani Cimcon Technologies Ltd. and other comparables like Celestial Biolabs Ltd., E-Zest Solutions Ltd., Kals Info Systems, Persistent Systems Ltd., Quintegra Solutions Ltd., Tata Elxsi Ltd., Thirdware Solutions Ltd., and Lucid Software Ltd. due to their functional differences.

3. Working Capital Adjustment:

The assessee contended for a working capital adjustment as per Rule 10B(1), citing the opportunity cost of investments in working capital. The Tribunal upheld the assessee's claim, directing the AO/TPO to work out the working capital adjustment, emphasizing the necessity of such adjustments to improve the reliability of comparables.

4. Treatment of Expenditure on Computer Spare Parts and Consumables:

The CIT(A) passed an ex parte order treating Rs. 5,85,777 spent on computer spare parts and consumables as capital expenditure. The Tribunal, relying on decisions like Southern Roadways and APL India v. ACIT, opined that RAM is a frequently replaceable part with no enduring benefit, thus treating it as revenue expenditure.

5. Disallowance of Payments to Club Cabana and Golden Palms:

The CIT(A) upheld the AO's disallowance of payments amounting to Rs. 58,925 and Rs. 455,670 made to Club Cabana and Golden Palms for business training and conference expenses under section 40(a)(ia). The Tribunal, referencing CBDT Circular No.715 and the Bombay High Court decision in East India Hotels Ltd. v. CBDT, concluded that such payments do not fall under section 194C and allowed the appeal on this issue.

6. Credit in Respect of Advance Tax and Charging of Interest:

The issues regarding credit for advance tax and charging of interest under sections 234A and 234B were deemed consequential. The Tribunal directed the AO to work out these issues accordingly.

Conclusion:

The appeal was partly allowed, with the Tribunal directing the exclusion of certain comparables, upholding the working capital adjustment, treating computer spare parts expenditure as revenue, and allowing the appeal regarding payments to Club Cabana and Golden Palms. The consequential issues related to advance tax and interest were left to the AO's determination.

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