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2012 (8) TMI 257 - AT - Income TaxTransfer Pricing Adjustment - AO/Transfer Pricing Officer made addition to the total income of the Appellant on account of adjustment in the arm s length price of the software development and related services and customer support services transactions entered by the Appellant with its associated enterprise - disregarding the economic analysis undertaken by the Appellant and conducting a fresh economic analysis for the determination of the arm s length price in connection with the impugned international transactions and holding that the Appellant s international transactions are not at arm s length Held that - TPO erred in rejecting certain comparables considered by the Appellant in the comparability analysis by applying different quantitative and qualitative filters - most of the issues raised by the assessee have since been dealt with in the assessee s own case in the immediately preceding assessment year wherein the earlier Bench had remitted back the issues to the TPO for fresh consideration - it is a diversified company and therefore cannot be considered as comparable functionally with that of the assessee. There has been no attempt made to identify and eliminate and make adjustment of the profit margins so that the difference in functional comparability can be eliminated matter remanded to TPO - assessee is partly allowed
Issues Involved:
1. Incorrect interpretation of law by the Assessing Officer and Dispute Resolution Panel (DRP). 2. Disallowance of software expenses. 3. Disallowance of foreign exchange loss. 4. Re-computation of deduction under Section 10A. 5. Transfer pricing adjustments. 6. Levying of interest under Sections 234B and 234D. 7. Initiation of penalty proceedings under Section 271(1)(c). Issue-wise Detailed Analysis: 1. Incorrect Interpretation of Law: - The assessee contended that the order of the Assessing Officer (AO) and directions of the DRP were based on an incorrect interpretation of law. - The tribunal dismissed this ground as general in nature without specific adjudication. 2. Disallowance of Software Expenses: - The AO disallowed Rs. 22,94,928/- claimed as software expenses, considering it capital in nature. - The tribunal noted that the expenses were for annual software licenses and application software, which do not result in enduring benefits. - Citing various judgments, including CIT v. Toyota Kirloskar Motors (P.) Ltd., the tribunal held that software expenses for licenses valid for less than two years should be treated as revenue expenditure. - The tribunal remitted the matter back to the AO for a detailed discussion, allowing the ground for statistical purposes. 3. Disallowance of Foreign Exchange Loss: - The AO disallowed Rs. 63,30,156/- as foreign exchange loss, considering it contingent. - The tribunal referred to the Supreme Court judgment in CIT v. Woodward Governor India (P.) Ltd., which allowed such losses as revenue in nature if recognized in the profit and loss account. - The tribunal remitted the matter to the AO for reconsideration in light of the Supreme Court judgment, allowing the ground for statistical purposes. 4. Re-computation of Deduction under Section 10A: - The AO reduced telecommunication expenses and travel expenses incurred in foreign currency from the export turnover but not from the total turnover. - The tribunal cited judgments from the Karnataka High Court in CIT v. Tata Elxsi Ltd. and the Mumbai High Court in CIT v. Gem Plus Jewellery India Ltd., which held that such expenses should be excluded from both export turnover and total turnover. - The tribunal directed the AO to recompute the deduction under Section 10A by excluding the expenses from both export turnover and total turnover, allowing the alternative ground. 5. Transfer Pricing Adjustments: - The AO/TPO made adjustments to the arm's length price (ALP) for software services and ITES transactions, rejecting the economic analysis undertaken by the assessee. - The tribunal noted that many issues raised were covered in the assessee's own case for the previous assessment year, where the tribunal had remitted the issues back to the TPO for fresh consideration. - The tribunal remitted the entire transfer pricing issues to the TPO for fresh consideration, including the inclusion of foreign exchange fluctuation gains/losses as part of operating income and adjustments for differences in risk profiles. - The tribunal also directed the TPO to reconsider the inclusion of Celestial Labs Limited as a comparable, following the precedent set by the Mumbai Bench in Tevapharm (P.) Ltd. v. Addl. CIT. 6. Levying of Interest under Sections 234B and 234D: - The tribunal dismissed this ground as consequential. 7. Initiation of Penalty Proceedings under Section 271(1)(c): - The tribunal dismissed this ground as consequential. Conclusion: - The appeal was partly allowed, with several issues remitted back to the AO/TPO for fresh consideration in light of relevant judgments and principles.
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