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2011 (12) TMI 284 - AT - Income TaxTransfer Pricing -Arm length price - Transaction Net Margin Method(TNMM) - Profit Level Indicator(PLI) greater than arithmetic mean of 10 comparable - Assessee argued comparable selected by the TPO are functionally not comparable with the assessee s line of transaction. With regard to the rejection of the 2 loss making comparables by the TPO, it was pointed out cannot be considered as loss maker and further - Held That - As the difference between the Transfer price and the value determine doesnot exceed 5% of Transfer price thus no need to dispute the price. Mural Painting - Capital OR Revenue - Held That - Purpose for which the hand painted Mural art work was done and fixed to the wall it cannot be said that an advantage of an enduring nature accrued to the assessee. The expenditure was only to preserve and maintain an existing asset. Consequently the addition made by the AO is directed to be deleted. Sisco Catalyst Switch - Capitalized in books - DRP treated as towards purchase of hardware - Held That - AO should be directed to consider the claim of the assessee as above afresh. Capital Gain - Sale of Car - closing block under Income Tax was having WDV balance - AO claim by letter not admissible - Held That - Appellate Tribunal has however the power to entertain any claim. We are of the view that the claim of the assessee deserves examination by the AO
Issues Involved:
1. Validity of the assessment order passed pursuant to the directions of the Dispute Resolution Panel (DRP). 2. Determination of Arm's Length Price (ALP) for the international transaction of 'Contract Research and Testing Services.' 3. Disallowance of repairs towards mural and computer hardware expenses. 4. Allowance of profit on the sale of cars already offered to tax by the appellant. Detailed Analysis: 1. Validity of the Assessment Order: The assessee contended that the assessment order passed in pursuance of the DRP's directions was vitiated due to lack of appropriate application of mind. The Tribunal examined the provisions of Section 92C(3) of the Income Tax Act and concluded that the Assessing Officer (AO) had the power to determine the ALP based on the report of the Transfer Pricing Officer (TPO). The Tribunal found that the AO's reference to the TPO and adoption of the TPO's findings indicated the AO's dissatisfaction with the price charged in the international transaction. Consequently, the Tribunal dismissed the assessee's contention regarding the validity of the assessment order. 2. Determination of Arm's Length Price (ALP): The primary dispute was regarding the ALP of the international transaction for rendering contract testing and research services. The assessee adopted the Transaction Net Margin Method (TNMM) and identified 10 comparables, resulting in a Profit Level Indicator (PLI) of 16.03%. The TPO rejected two loss-making comparables and identified a fresh set of comparables, determining an arithmetic mean PLI of 35.37%, leading to an adjustment of Rs. 3,56,80,542. Key Points: - The Tribunal found that the TPO's fresh comparables (Engineers India Ltd., Agile Electric Technologies Pvt. Ltd., IDC (India) Ltd., Oil Field Instrumentation (India) Ltd., Celestial Labs Ltd., and Mindtree Ltd.) were not functionally comparable to the assessee's activities. - The Tribunal emphasized the importance of functional comparability as per Rule 10B(2) of the Income Tax Rules, which was not adequately considered by the TPO. - The Tribunal accepted the comparables identified by the assessee, as the TPO did not dispute their functional comparability. - The Tribunal concluded that even if the loss-making comparables were excluded, the remaining comparables' PLI would still be within the permissible range, making the assessee's transactions at arm's length. 3. Disallowance of Repairs and Computer Hardware Expenses: The AO disallowed expenses related to the purchase of a mural and computer hardware, treating them as capital in nature. The Tribunal examined the nature of these expenses: Mural Expenses: - The Tribunal found that the mural was installed to maintain the canteen wall and did not create an enduring advantage. It was considered a maintenance expense and allowed as a revenue expenditure. Computer Hardware Expenses: - The Tribunal noted that the expenditure on computer hardware was already capitalized by the assessee and not claimed as revenue expenditure. The Tribunal directed the AO to re-examine this aspect and rectify the addition if necessary. 4. Allowance of Profit on Sale of Cars: The assessee claimed a deduction for profit on the sale of cars, which was already offered to tax. The AO disallowed this claim, citing the Supreme Court's decision in Goetze (India) Ltd. v. CIT, which restricts the AO from entertaining additional claims not made through a revised return. Tribunal's Decision: - The Tribunal acknowledged the assessee's detailed submissions and supporting documents regarding the sale of cars. - The Tribunal directed the AO to re-examine the claim afresh and allow the deduction if substantiated. Conclusion: The Tribunal partly allowed the assessee's appeal, directing the deletion of the ALP adjustment and allowing the claims related to mural expenses and profit on the sale of cars. The Tribunal remanded the issue of computer hardware expenses to the AO for fresh examination.
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