2011 (8) TMI 427 - AT - Income Tax

Obsolete inventory - write off is justified on the basis of application of a uniform criterion which has been applied consistently over the years, is done in an objective manner and the bona fides of the manner of provisioning is not called into question and the same has not been objected to by the revenue authorities. - Held that - the obsolete inventory is to be destroyed as selling the same even as scrap will adversely affect the commercial interests, and the value realized thus may not be significant at all, or be even negative value. - Claim of deduction allowed. Arm s length price (ALP) - Held that - the working capital adjustment should have been taken at 1.55 per cent, as was claimed by the assessee and which has not been specifically rejected by the TPO, as against 0.66 per cent made by the TPO. Regarding comparable - Held that - Aplab Limited and Ashco Industries Limited cannot be included in the list of comparables for the purposes of benchmarking - first, because, two new companies have merged into this company and there is nothing on record to show that these companies were engaged in the same or materially similar activity; and, second, because, the business activity of this company is significantly different from the business activity of the assessee. Exclusion on commission income from profitability - Held that - as related costs have not been segregated even on estimation basis which such an allocation essentially involves, we consider it appropriate that commission income on direct sales should not be excluded from the profitability of the assessee. Disallowance u/s 40A(2) - excessive or unreasonable payment - Held that - A disallowance under section 40A(2)(b) on ad hoc basis, as a percentage of total expenditure incurred, is inherently bad in law because such a disallowance can never have reasonable nexus with the market price of services for which payment is made. - There is nothing on record to even suggest that the service charges are in excess of its fair market value. - Appeal allowed partly and remitted for statistical purposes.

Summary

Issues Involved:
1. Disallowance of deduction for writing off obsolete inventory.
2. Arm's length price (ALP) adjustment and related objections.
3. Disallowance under section 40(a)(ia) for non-deduction of TDS on reimbursement of expenses.
4. Disallowance under section 40A(2)(b) for excessive payment for services.
5. Adjustment of provisions for differential duty and variable pay in computing book profits under section 115JB.

Issue 1: Disallowance of deduction for writing off obsolete inventory

The assessee challenged the disallowance of a deduction of Rs. 25,47,394 for writing off obsolete inventory. The Assessing Officer (AO) disallowed the claim, stating the assessee failed to establish that the items classified as obsolete were slow-moving during the relevant period and referenced the case of CIT v. Heredilla Chemicals Ltd. The Tribunal upheld the assessee's grievance, citing the principle of conservatism and the Supreme Court's judgment in Chainrup Sampatram v. CIT, recognizing the need to account for anticipated losses. The Tribunal found the write-off justified due to the consistent application of a sound internal control mechanism and directed the AO to delete the disallowance.

Issue 2: Arm's length price (ALP) adjustment and related objections

The assessee raised objections against the ALP adjustment of Rs. 6,25,82,5634. The Tribunal addressed several sub-issues:

- Validity of reference to Transfer Pricing Officer (TPO): The assessee argued the reference was invalid without a hearing, citing Sony India (P.) Ltd. v. CBDT. The Tribunal, however, found the objection academic due to the relief granted on merits.

- Working capital adjustment: The Tribunal found the TPO's 0.66% adjustment unsupported and accepted the assessee's 1.55% adjustment.

- Exclusion of comparables: The Tribunal excluded Aplab Limited and Ashco Industries Limited as comparables due to significant differences in business activities and mergers affecting comparability.

- Commission income: The Tribunal included commission income in the profitability of the assessee, recognizing it as operational income.

- 5% adjustment under section 92C: The Tribunal upheld the assessee's claim for a 5% adjustment, following the precedent set in UE Trade Corporation (India) (P.) Ltd.

- Transfer pricing adjustment: The Tribunal directed the AO to recompute the adjustment based on international transactions only and to consider the correct margins.

Issue 3: Disallowance under section 40(a)(ia) for non-deduction of TDS on reimbursement of expenses

The Tribunal deleted the disallowance of Rs. 74,33,557, recognizing the payment as a reimbursement of expenses under a cost-sharing arrangement, which does not attract TDS requirements.

Issue 4: Disallowance under section 40A(2)(b) for excessive payment for services

The Tribunal deleted the disallowance of Rs. 58,35,000, finding no evidence that the payment for services was excessive or unreasonable compared to market value. The disallowance based on the ratio of expenses to turnover was deemed unjustified.

Issue 5: Adjustment of provisions for differential duty and variable pay in computing book profits under section 115JB

The Tribunal admitted additional evidence showing the liabilities were ascertained and remitted the matter to the AO for fresh adjudication, directing a speaking order after giving the assessee a fair hearing.

In conclusion, the Tribunal allowed the appeal in part, providing relief on several grounds and remitting specific issues to the AO for further consideration.