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2016 (9) TMI 1302 - AT - Income TaxTPA - determination of the arms length price - Assessing Officer have adopted the CUP method - Held that - The similarity of products and their quality and terms and conditions such as scope and terms of warrantees provided, volume of sales or purchases, credit terms, etc., level of the market such as wholesale or retail etc., and the Geographic market i.e., the place in which the transaction takes place (like a country), the foreign currency risks, the alternatives realistically available to the buyer and seller and the intangible property attached to the sale etc., are all the factors to be considered while comparing a transaction under the CUP method. From the chart produced by the assessee referred to in the above paras, it is noticed that the assessee had purchased the GPC from various countries and therefore, the geographical source, influents the quality and composition of the product and proportionately the price also. Therefore, in our opinion, the T.P. analysis made by the TPO needs re-consideration. In view of the same, grounds of appeal No. 2 to 8 are remitted to the file of the Assessing Officer/TPO for fresh analysis in accordance with Rule 10B(1)(a) of the I.T. Rules. Adoption of corporate guarantee fee at LIBOR 0.50% accepted Disallowing the SAP implementation expenses - Held that - We direct the Assessing Officer to allow the expenditure incurred on implementation of the application software of SAP as revenue expenditure
Issues Involved:
1. Transfer Pricing (TP) Adjustment 2. Calculation of Guarantee Fee 3. Disallowance of SAP Implementation Expenses 4. Credit of TDS and TCS Detailed Analysis: 1. Transfer Pricing (TP) Adjustment: The primary issue was the TP adjustment related to the purchase of Green Petroleum Coke (GPC) from the assessee's Associated Enterprises (A.E.). The assessee used the Comparable Uncontrolled Price (CUP) method to benchmark the transactions. The Transfer Pricing Officer (TPO) found discrepancies, rejecting the assessee's comparison of controlled transactions and proposing an adjustment of ?20,53,36,947. The Dispute Resolution Panel (DRP) upheld the TPO's decision. The Tribunal found that the TPO incorrectly compared controlled transactions and failed to consider differences in product quality and geographical sources. It remanded the issue back to the TPO for fresh analysis under Rule 10B(1)(a) of the I.T. Rules, emphasizing the need for direct comparison and adjustments for variations in product quality and terms of transactions. 2. Calculation of Guarantee Fee: The DRP directed the calculation of the guarantee fee at 1.25%, contrary to the TPO's 2% on a guarantee amount of ?300 crores. The Tribunal referenced its earlier decision in the assessee's case for A.Y. 2008-09, which upheld a corporate guarantee fee at LIBOR + 0.50%. The Tribunal reiterated that the LIBOR rate should be adopted for international transactions, dismissing the Revenue's argument for using domestic rates. It remitted the issue to the Assessing Officer (AO)/TPO to determine the ALP of the corporate guarantee by following judicial precedents, particularly the case of Glenmark Pharmaceuticals. 3. Disallowance of SAP Implementation Expenses: The assessee claimed SAP implementation expenses as revenue expenditure, which the AO treated as capital expenditure, allowing depreciation instead. The Tribunal referenced the Delhi High Court's decision in CIT vs. Asahi India Safety Glass Ltd., which distinguished between system software and application software, allowing the latter as revenue expenditure. It noted that the Tribunal's earlier decision in Srinivasa Resources did not consider this High Court ruling. Following judicial discipline, the Tribunal directed the AO to treat the SAP implementation expenses as revenue expenditure, allowing the assessee's appeal on this ground. 4. Credit of TDS and TCS: The assessee claimed that the AO did not allow credit for TDS and TCS amounting to ?25,32,285. The Tribunal remitted this issue to the AO for verification and consideration in accordance with the law, treating the ground as allowed for statistical purposes. Conclusion: The Tribunal partly allowed the assessee's appeal for statistical purposes and dismissed the Revenue's appeal. The order emphasized proper benchmarking in TP adjustments, adherence to judicial precedents in calculating guarantee fees, and the correct classification of SAP implementation expenses as revenue expenditure. The issue of TDS and TCS credit was remitted for verification. The judgment reinforced the importance of detailed analysis and adherence to legal principles in tax assessments.
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