2012 (8) TMI 730 - AT - Income Tax

Arm s length price - investment advisory services to assets management companies - transactions between assessee and its associated enterprises were at arm s length price, an arm s length analysis was performed by assessee-company and submitted to TPO - TPO rejected two entities that were selected comparables by assessee-company and, on other hand, TPO introduced two fresh comparables to determined arm s length price Held that - Assessee raised several points and contentions before the learned DRP against the proposed adjustment to the amount of transactions entered into by the assessee with its associate enterprises - DRP in a very short and summary order has upheld the TPO s action without giving the reasons as to why the TPO was justified in suggesting the adjustment to the transfer pricing transactions after selecting various comparables - DRP has failed to ascribe cogent and germane reasons for rejecting the assessee s several objections, accepting the TPO s order in summary manner and has failed to consider various points raised by the assessee - matter is restored to the file of the Assessing Officer/DRP for fresh adjudication Disallowance of bonus paid by the assessee to its employees (who are also shareholders of the assessee-company) under section 36(1)(ii ) of the Act by holding that the same would have been payable by way of dividend Held that - There was a specific direction by the learned DRP to allow the assessee s claim if the same was allowed in the earlier year - matter restored to the file of the Assessing Officer for fresh adjudication after verifying as to whether identical claim was allowed in earlier years and if it is found that the same is allowed in the earlier year, the Assessing Officer shall allow the assessee s claim as so directed by the learned DRP Disallowance of severance cost paid by the assessee-company to one of its employees Held that - Issue was pending in appellate proceedings in the earlier years - matter restored to the file of the Assessing Officer/DRP for fresh adjudication after ascertaining as to whether identical issue based on same set of facts has been decided by any appellate authority in earlier years and if it is not so, then learned DRP is directed to decide the issue on merits having regard to the provisions provided under section 37(1) of the Act in the light of the facts of the present case Disallowance out of staff welfare expenses Held that - Claim of the assessee was that the get together was held for the benefit of the employees. Since the expenditure was incurred for the benefit of the employees in the course of carrying on business by the assessee, it cannot be said that the amount has not been incurred for the purpose of business. The assessee is in the business of investment advisory services and its business is solely dependent on the skills and expertise of its employees - it is a common practice in the industry to conduct training sessions for its employees and get together expenditure allowed Disallowance of the payment made by the assessee to Hunt Executive Research Limited under section 40(a)( ia) of the Act Held that - Assessee paid a fees to Hunt Executive Research Limited as professional fees - payment on account of professional fees, tax was duly deducted at source under section 194J and thus, no disallowance has been made by the Assessing Officer - reimbursement of expenses would not come under the ambit of payment of professional fees within the meaning of section 194J of the Act - disallowance deleted

Issues Involved:
1. Transfer Pricing Adjustment
2. Disallowance of Bonus Payment
3. Disallowance of Severance Cost
4. Disallowance of Staff Welfare Expenses
5. Disallowance under Section 40(a)(ia)
6. Depreciation on Computer Peripherals
7. Adjustment of Disallowed Expenses from Operating Costs

Detailed Analysis:

1. Transfer Pricing Adjustment:
The primary issue in this appeal is the adjustment of Rs. 8,68,19,937 made by the Assessing Officer (AO)/Transfer Pricing Officer (TPO) to the assessee's total income under the Transfer Pricing Regulations. The assessee, engaged in providing investment advisory services, submitted a transfer pricing report identifying six comparables with an average margin of 2.33%, which was below its operating margin of 24.15%. The TPO rejected two comparables and introduced two new ones, determining an average margin of 52.86%. The Dispute Resolution Panel (DRP) upheld the TPO's order without detailed reasoning. The Tribunal noted the DRP's failure to provide a reasoned order and remanded the matter back to the AO/DRP for fresh adjudication with a directive to pass a speaking and reasoned order.

2. Disallowance of Bonus Payment:
The AO disallowed a bonus payment of Rs. 2,95,93,000 to the assessee's employees, who were also shareholders, under Section 36(1)(ii) of the Income-tax Act, holding that it would have been payable as a dividend. The DRP directed the AO to verify if such payments were allowed in earlier years. The AO found no such claims in previous years and disallowed the bonus. The Tribunal restored the matter to the AO for fresh adjudication, directing verification of earlier years' records and consideration of the assessee's contentions and relevant case laws.

3. Disallowance of Severance Cost:
The AO disallowed a severance cost of Rs. 35,10,000 paid to an employee, which was upheld by the DRP due to pending appellate proceedings in earlier years. The Tribunal restored the matter to the AO/DRP for fresh adjudication, instructing them to verify if similar issues were decided in earlier years and, if not, to decide the matter on merits under Section 37(1) of the Act.

4. Disallowance of Staff Welfare Expenses:
The AO disallowed Rs. 1,30,000 paid for an employee get-together, which the DRP upheld. The Tribunal held that such expenses were incurred for the benefit of employees and were common in the industry, thus allowing the deduction.

5. Disallowance under Section 40(a)(ia):
The AO disallowed Rs. 1,04,690 paid to Hunt Executive Research Limited for reimbursement of out-of-pocket expenses without TDS deduction. The Tribunal deleted the disallowance, noting that reimbursement of expenses does not fall under professional fees requiring TDS under Section 194J. Additionally, the AO disallowed Rs. 2,22,748 paid to Bansal Printing Press, of which only Rs. 67,369 was claimed as expenses. The Tribunal directed the AO to verify and delete the disallowance for amounts not claimed as expenses.

6. Depreciation on Computer Peripherals:
The AO allowed depreciation on computer peripherals at 15% instead of 60%. The Tribunal directed the AO to allow depreciation at 60%, following the Delhi High Court's decision in BSES Rajdhani Powers Ltd.

7. Adjustment of Disallowed Expenses from Operating Costs:
The assessee argued that disallowed expenses should be reduced from operating costs while computing the ALP of international transactions. The Tribunal directed the AO to consider this issue during the fresh assessment of ALP determination.

Conclusion:
The Tribunal remanded the transfer pricing adjustment issue back to the AO/DRP for fresh adjudication with specific directives. It restored the bonus payment and severance cost disallowances to the AO for verification and fresh decision. The Tribunal allowed the staff welfare expenses and directed the AO to delete disallowances under Section 40(a)(ia) for non-claimed expenses and to allow higher depreciation on computer peripherals. The AO was also instructed to consider the adjustment of disallowed expenses from operating costs during ALP computation. The appeal was partly allowed in line with these directions.

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