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2011 (6) TMI 392 - AT - Income TaxArm s length price - case was referred to determine the arm s length price in relation to the international transactions entered into by the assessee under section 92CA of the Act to the Transfer Pricing Officer (TPO) who, after much deliberation, passed an order under section 92CA of the Act. order served on the assessee contained variation to the returned income such as re-determination of arm s length price (ALP) on certain international transactions entered into by the assessee - foreign exchange gain needs to be considered as being operating in nature while determining arm s length price Deduction under section 10A - telecommunication charges, insurance charges and expenses incurred in foreign currency not excluded from export turnover in computing deduction under section 10A - assessee s contention was that the expenses claimed were not recovered from the customers and also did not form part of export turnover as the assessee was not engaged in providing technical services outside India interest levied under section 234B and 234D of the Act - ground not maintainable as charging of interest under section 234B of the Act is mandatory and consequential in nature. With regard to charging of interest under section 234D of the Act, ITO v. Ekta Promoters (P.) Ltd. Held that - the levy of interest under section 234D is purely a legal ground and chargeable, ground goes against the assessee
Issues Involved:
1. Validity of the Assessing Officer's order under section 143(3) read with section 144C of the Act. 2. Adjustments made by the Transfer Pricing Officer (TPO) and confirmed by the Dispute Resolution Panel (DRP). 3. Adjustments to reduce the Arm's Length Price (ALP). 4. Exclusion of telecommunication charges, insurance charges, and foreign currency expenses from export turnover. 5. Reduction of expenses from total turnover in computing deduction under section 10A. 6. Deletion of interest levied under sections 234B and 234D of the Act. Detailed Analysis: 1. Validity of the Assessing Officer's Order: The assessee argued that the impugned order under section 143(3) read with section 144C should be quashed. However, no substantial submission was made to support this claim during the hearing. Consequently, this ground was not taken cognizance of. 2. Adjustments by TPO and DRP: The TPO made adjustments to the reported value of international transactions, which were confirmed by the DRP. The DRP observed that the TPO followed strict objective criteria for selecting/rejecting comparables and that any lack of opportunity for the assessee to present its case was cured by the DRP giving an opportunity of hearing and considering objections. 3. Adjustments to Reduce ALP: The assessee contended that various adjustments ought to have been made to reduce the ALP. The TPO's rejection of the assessee's transfer pricing documentation and substitution with his own TP study was upheld by the DRP, which agreed with the TPO's methodology and reasoning. 4. Exclusion of Telecommunication, Insurance, and Foreign Currency Expenses: The Assessing Officer reduced Rs. 57.64 lakhs (telecommunication and insurance expenses) and Rs. 2.41 crores (foreign travel, conveyance, training, and recruitment expenses) from the export turnover. The DRP approved these disallowances, noting that similar disallowances were made in earlier years and the issue was subjudice. 5. Reduction of Expenses from Total Turnover: The assessee argued that if expenses are reduced from export turnover, they should also be reduced from total turnover. The ITAT, following the Chennai Special Bench in the case of ITO v. Sak Soft Ltd., held that such expenses should be excluded both from the export turnover and the total turnover. Thus, this issue was decided in favor of the assessee. 6. Deletion of Interest under Sections 234B and 234D: The assessee's ground regarding the deletion of interest under section 234B was not maintainable as it is mandatory and consequential. Regarding section 234D, the ITAT Delhi E Special Bench in ITO v. Ekta Promoters (P.) Ltd. held that interest under section 234D is chargeable for the assessment year 2006-07. Thus, this ground went against the assessee. Conclusion: The ITAT partly allowed the assessee's appeal. The issues regarding the computation of margins under 'Foreign Exchange Gain' and the deduction under section 10A were decided in favor of the assessee, following precedents. Other issues were remitted back to the Assessing Officer/TPO for fresh consideration, with directions to afford a reasonable opportunity to the assessee. The ground to quash the Assessing Officer's order was not substantiated, and the interest under sections 234B and 234D was upheld.
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