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2016 (9) TMI 1328 - AT - Income TaxTPA - application of turnover filter - Held that - We are of the view that the turnover filter must be applied not as a tool for cherry picking at a later stage but at the time of the search process and by applying a quantitative filter. It can not be one sided process to exclude companies after the qualitative level based on FAR analysis where no filter has been applied in the earlier. Consistency also requires that it can not be used to exclude it in an individual given year, when it has not been applied in earlier year and subsequent year. There can not be a pick and choose of comparables every year unless there are some material differences in facts and circumstances. Therefore, based on the above cited reasoning we direct the DRP/TPO/AO to delete this addition. Determination of higher profitability for advertisement receipts received by STAR Ltd. - whether it was a Non-Associated Enterprise (Non-AE) receipt, hence, outside PSM - Held that - We noticed merit in the submissions of the Ld. AR for the assessee, as the combined net profit as per the PSM under Rule 10B (1) (d) at 17.30% has been found to be at arm s length except for the exclusion of 3 companies for 10% turnover filter applied by the TPO. On the present facts, all the international transactions in respect of the advertisement and distribution stream cannot be separated. We therefore set aside the orders of lower authorities on this issue and restored the same back to AO/TPO for deciding afresh in terms of our above discussion. Disallowance of foreign content fees and uplinking cost under Section 40(a)(ia) - Held that - We noticed the merit in the submissions of the Ld. AR for the assessee, hence, in the light of the order of AO and the Hon ble ITAT for A.Y. 2007-08 in the case of assessee that disallowance under section 40(a) (i) of the Act uplifted the profitability and increasing the assessee s profit chargeable to tax in India. It is wholly inconsistent and contrary to Law, not to allow the reversal in the years when the taxes have been deducted and paid in accordance with section 40(a) (i) of the Act, merely on the erroneous contention that no disallowance had been made by him under section 40(a) (i) of the Act in A.Y. 2007-08 while determining the final taxable income at 27.18%, therefore, we allow the appeal of the assessee on this ground. Disallowance of Transponder hire charges under section 40(a)(i) paid to Asia Sat while computing the profitability of 22.57% - Held that - As gone through the facts and circumstances of the case and perused the material available on record. We noticed that the provisions of section 195 of the Act do not apply to transaction between one non-resident to another non-resident and it is supported by the case law cited above, therefore, we allow the appeal of the assessee on this ground. Double disallowances of Transponder hire charges under section 40(a) (i) paid to Asia Sat - Held that - We noticed the merit in the proposition canvassed by the Ld. AR for the Assessee, as he submitted that the assessee had already made disallowance under section 40 (a) (i) of the Act while computing PSM profit percentage and despite the same the AO also made further disallowance under section 40(a) (i) of the Act again, which is not justified, accordingly we direct the AO to verify the same should delete the addition after proper verification. We direct accordingly. Levy of interest under section 234B and 234C - Held that - We noticed the merit in the proposition of the assessee and found that, if the non-resident assessee is not liable to pay advance tax then there is no any question to levy interest under sections 234B and 234C of the Act. For this purpose reliance can be placed on the decision of Bombay High Court in the case of DIT Vs. NGC Network Asia LLC, (2009 (1) TMI 174 - BOMBAY HIGH COURT) wherein similar issue has been decided by the Bombay High Court, and therefore, we allow the assessee s appeal on this ground.
Issues Involved:
1. Determination of FAR-based income. 2. Application of transfer pricing provisions to profit after Profit Split Method (PSM). 3. Determination of arm's length profitability rate (ALP rate). 4. Rejection of comparability analysis. 5. Applicability of PSM to Non-AE transactions. 6. Computation of revenue from Non-AEs. 7. Arbitrary profitability rate application. 8. Double taxation of profits. 9. Computation of arm's length price ignoring Rule 10B(4). 10. Consideration of financial results and data of comparable companies. 11. Application of 5 percent bandwidth under Section 92C(2). 12. Divergent position on adjustments under Section 40(a)(i). 13. Deduction for disallowed amounts on which taxes were paid. 14. Disallowance of transponder hire fees. 15. Disallowance of transponder hire charges. 16. Restriction of disallowance to the amount attributable to India. 17. Restriction of disallowance to net income chargeable to tax. 18. Disallowance of transponder hire charges when the non-resident has discharged tax liabilities. 19. Non-disposal of certain objections by DRP. 20. Charging of interest under Section 234C. 21. Credit of taxes deducted at source. 22. Interest under Section 244A on tax refund. 23. Initiation of penalty proceedings under Section 271(1)(c). 24. Initiation of penalty proceedings under Section 271A. 25. Initiation of penalty proceedings under Section 271B. Issue-wise Detailed Analysis: 1. Determination of FAR-based Income: The Tribunal found that the TPO erred in determining the FAR-based income of the Appellant at ?149,31,07,251 instead of ?114,42,29,521 as declared by the Appellant. The Tribunal directed the DRP/TPO/AO to delete this addition. 2. Application of Transfer Pricing Provisions: The Tribunal upheld the application of transfer pricing provisions to profit arrived after the application of PSM, noting that such profit represents profits from transactions with third parties. 3. Determination of ALP Rate: The Tribunal found that the TPO erred in determining the ALP rate of 22.57% as against the ALP rate of 17.30% computed by the Appellant. The Tribunal directed the DRP/TPO/AO to delete this addition. 4. Rejection of Comparability Analysis: The Tribunal found that the TPO erred in rejecting the comparability analysis carried out by the Appellant and thereby deviating from their own position in earlier years without any change in facts or in law. The Tribunal directed the DRP/TPO/AO to delete this addition. 5. Applicability of PSM to Non-AE Transactions: The Tribunal found that the TPO erred in holding that PSM is applicable to determine the arm's length profits in respect of revenues from AEs only and not applicable for determining arm's length profits in respect of transactions with non-AEs. The Tribunal directed the DRP/TPO/AO to delete this addition. 6. Computation of Revenue from Non-AEs: The Tribunal found that the TPO erred in holding that revenues of ?208,28,90,828 from the sale of advertisement airtime, as revenue from Non-AEs and income/profits needs to be separately computed therefrom. The Tribunal directed the DRP/TPO/AO to delete this addition. 7. Arbitrary Profitability Rate Application: The Tribunal found that the TPO erred in applying an arbitrary profitability rate of 28% to the advertising revenues of ?208,28,90,828 from non-AEs, contrary to law. The Tribunal directed the DRP/TPO/AO to delete this addition. 8. Double Taxation of Profits: The Tribunal found that the TPO failed to carry out the directions of the learned DRP resulting in double taxation of profits from revenues of ?208,28,90,828. The Tribunal directed the DRP/TPO/AO to delete this addition. 9. Computation of Arm's Length Price Ignoring Rule 10B(4): The Tribunal found that the TPO erred in computing the arm's length price for the international transactions by ignoring the provisions of Rule 10B(4) of the Rules, which authorizes the usage of multiple year data of comparable companies for the purpose of determination of arm's length price under Section 92F of the Act. The Tribunal directed the DRP/TPO/AO to delete this addition. 10. Consideration of Financial Results and Data of Comparable Companies: The Tribunal found that the TPO erred in considering the financial results and data of the comparable companies which were not in existence in the public domain at the time of determination of the ALP profit rate as is mandated under Section 92F of the Act. The Tribunal directed the DRP/TPO/AO to delete this addition. 11. Application of 5 Percent Bandwidth Under Section 92C(2): The Tribunal found that the TPO erred in computing the arm's length price for the international transactions without considering the 5 percent bandwidth available under the proviso to Section 92C(2) of the Act. The Tribunal directed the DRP/TPO/AO to delete this addition. 12. Divergent Position on Adjustments Under Section 40(a)(i): The Tribunal found that the TPO erred in adopting a divergent position with respect to adjustments made under Section 40(a)(i) of the Act for AY 2007-08 and AY 2008-09 and not granting a deduction for ?1,10,35,39,414 disallowed in AY 2007-08 on which taxes were admittedly paid in AY 2008-09. The Tribunal directed the DRP/TPO/AO to delete this addition. 13. Deduction for Disallowed Amounts on Which Taxes Were Paid: The Tribunal found that the TPO erred in providing a finding that no disallowance was made in AY 2007-08 under Section 40(a)(i) of the Act and thereby not allowing a deduction of ?1,10,35,39,414 in AY 2008-09 on which taxes have been paid in the current year. The Tribunal directed the DRP/TPO/AO to delete this addition. 14. Disallowance of Transponder Hire Fees: The Tribunal found that the TPO erred in disallowing an amount of ?20,28,50,187, over and above the ALP profit rate of 17.30%, under Section 40(a)(i) of the Act representing transponder hire fees paid to Asia Satellite Telecommunications Company Limited. The Tribunal directed the DRP/TPO/AO to delete this addition. 15. Disallowance of Transponder Hire Charges: The Tribunal found that the TPO erred in disallowing the gross sum of transponder hire charges amounting to ?34,96,00,000 paid to Asia Sat under Section 40(a)(i) of the Act. The Tribunal directed the DRP/TPO/AO to delete this addition. 16. Restriction of Disallowance to the Amount Attributable to India: The Tribunal found that the TPO erred in not restricting the disallowance under Section 40(a)(i) of the Act to the amount attributable to India as ?34,96,00,000 is the global amount. The Tribunal directed the DRP/TPO/AO to delete this addition. 17. Restriction of Disallowance to Net Income Chargeable to Tax: The Tribunal found that the TPO erred in not restricting the disallowance of transponder hire charges under Section 40(a)(i) of the Act to net income chargeable to tax in the hands of the non-resident recipient, i.e., Asia Sat. The Tribunal directed the DRP/TPO/AO to delete this addition. 18. Disallowance of Transponder Hire Charges When the Non-Resident has Discharged Tax Liabilities: The Tribunal found that the TPO erred in disallowing transponder hire charges under Section 40(a)(i) of the Act in the hands of the Appellant, as Asia Sat has been regularly discharging its tax liabilities in India. The Tribunal directed the DRP/TPO/AO to delete this addition. 19. Non-Disposal of Certain Objections by DRP: The Tribunal found that the DRP erred in not disposing of objection numbers 18, 19, 20, and 21 of the DRP Application. This ground is general and does not require separate adjudication. 20. Charging of Interest Under Section 234C: The Tribunal found that the TPO erred in charging interest amounting to ?1,73,42,755 under Section 234C of the Act without appreciating the fact that the Appellant is a non-resident and accordingly, its entire income is liable for TDS, and is not liable to pay advance tax. The Tribunal directed the DRP/TPO/AO to delete this addition. 21. Credit of Taxes Deducted at Source: The Tribunal found that the TPO erred in not granting the credit of taxes deducted at source amounting to ?1,19,13,016. The Tribunal directed the DRP/TPO/AO to delete this addition. 22. Interest Under Section 244A on Tax Refund: The Tribunal found that the TPO erred in not granting interest under Section 244A of the Act on the tax refund due to the Appellant. The Tribunal directed the DRP/TPO/AO to delete this addition. 23. Initiation of Penalty Proceedings Under Section 271(1)(c): The Tribunal found that the TPO erred in initiating penalty proceedings under Section 271(1)(c) of the Act without appreciating the fact that the Appellant has neither concealed any income nor furnished any inaccurate particulars of its income. The Tribunal directed the DRP/TPO/AO to delete this addition. 24. Initiation of Penalty Proceedings Under Section 271A: The Tribunal found that the TPO erred in initiating penalty proceedings under Section 271A of the Act without appreciating the fact that the Appellant is a non-resident and not required to maintain India-specific books of accounts. The Tribunal directed the DRP/TPO/AO to delete this addition. 25. Initiation of Penalty Proceedings Under Section 271B: The Tribunal found that the TPO erred in initiating penalty proceedings under Section 271B of the Act without appreciating the fact that the Appellant is a non-resident and accordingly, is not required to get the accounts audited. The Tribunal directed the DRP/TPO/AO to delete this addition. Conclusion: The Tribunal allowed the appeals of the assessee in part, directing the deletion of various additions and disallowances made by the TPO/DRP/AO, and provided specific directions for recomputation and verification of certain items. The Tribunal emphasized the importance of consistency and proper application of transfer pricing principles and legal provisions.
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