2011 (3) TMI 269 - AT - Income Tax

Arms length price - Addition - Dispute resolution panel (DRP) - Non speaking order - Rule 10B of the Income-tax Rules 1962 - DRP has again not gone into the objections raised by the assessee and it was only observed that the TPO made the rejection on a detailed FAR analysis by undertaking a search of comparable companies and taking two companies which were used as comparable in the immediately preceding year - The TPO rejected the comparable companies used by the assessee based on a detailed FAR analysis as mentioned in the order - The record shows that the assessee had filed before the DRP along with its objection the facts as submitted to the Assessing Officer concerning the TP adjustment and the corporate tax disallowance factual and legal arguments against the addition proposed by the Assessing Officer concerning the TP adjustment and the corporate tax disallowance and the case laws relied on by the assessee concerning the TP adjustment as well as the corporate tax disallowance - Appeal is allowed by way of remand

Summary

Issues Involved:

1. Validity of the assessment order passed by the Dispute Resolution Panel (DRP).
2. Adjustment to the appellant's income regarding international transactions not satisfying the arm's length principle.
3. Disallowance of inventory written off by treating it as capital in nature.

Issue-wise Detailed Analysis:

1. Validity of the Assessment Order:

The assessee contended that the DRP passed a non-speaking order without appropriate application of mind and in undue haste. The DRP upheld the TPO's adjustment of Rs.10,62,21,565 to the income of the assessee. The objections raised by the assessee, such as the validity of OP/VAE as a Profit Level Indicator (PLI) and the rejection of comparable companies, were not adequately addressed. The DRP merely endorsed the TPO's findings without detailed reasoning. The Tribunal found that the DRP's order lacked detailed consideration of the assessee's objections and was non-speaking, thus violating the principles of natural justice as held in Sahara India (Farms) v. CIT and Vodafone Essar Ltd. v. Dispute Resolution Panel-II.

2. Adjustment to the Appellant's Income:

The DRP confirmed the TPO's action of making an adjustment of Rs.10,62,21,565 to the appellant's income by holding that its international transactions did not satisfy the arm's length principle. The DRP agreed with the TPO's rejection of the appellant's PLI (OP/VAE) and the adoption of OP/OC, including the cost of goods sold in the cost base. The DRP also upheld the TPO's rejection of the comparable companies selected by the appellant and the acceptance of new comparables used in the previous assessment year. The DRP supported the TPO's use of current year data for comparability analysis and denied the benefit of the (+/-) 5 percent range as per section 92C(2) of the Act. The Tribunal found that the DRP did not adequately address the detailed objections raised by the assessee, such as the FAR profile and the inclusion of controlled transactions in the PLI denominator.

3. Disallowance of Inventory Written Off:

The DRP and the Assessing Officer upheld the disallowance of actual inventory written off amounting to Rs.20,87,932 by treating it as capital in nature. The assessee argued that the write-off arose in the normal course of business and should be considered on revenue account. The DRP also denied the deduction of demonstration inventory written off and spare parts consumed in the normal course of business. The Tribunal noted that the DRP's order did not provide detailed reasoning for treating the inventory write-off as capital expenditure and did not consider the assessee's arguments adequately.

Conclusion:

The Tribunal remitted the matter to the DRP for fresh consideration and directed the DRP to pass a speaking order addressing the objections raised by the assessee. The DRP was instructed to provide a proper opportunity for the assessee to present its case. The appeal filed by the assessee was treated as allowed for statistical purposes.