2013 (8) TMI 442 - AT - Income Tax

Determination of the Arm s length price - TPO made addition on account of difference of Arm s length price - Held that - The adjustment if any should be limited to the AE transactions - even applying the mean margin taken by TPO the difference in the ALP would be much less than 5% of the AE transactions - Decided in favour of assessee. Disallowance under section 43B - Held that - disallowance under section 43B cannot be made even in respect of employees contribution if the same is paid before due date of filing the return - no part of Provident Fund can be disallowed whether it relates to employees contribution or employers contribution if the payment is made before due date of filing the return. Here it is the case of the assessee that all the payments have been made before the due date of filing the return. To verify such contention of the assessee the matter is restored back to the file of AO with a direction that if the payments are made before due date of filing the return no disallowance should be made - Decided in favour of assessee.

Issues Involved:
1. Addition of Rs. 3.83 crores under section 92CA(3).
2. Rejection of Nicco Corporation Limited as a comparable company.
3. Applicability of +/- 5% variation under Section 92C(2).
4. Use of comparables' data for multiple years under Rule 10B(4).
5. Attribution of the entire shortfall to transactions with associated enterprises.
6. Contravention of the Hon'ble DRP's directions under section 144C(5).
7. Violation of principles of natural justice.
8. Disallowance of Employee's Contribution to Provident Fund.
9. Disallowance under section 40(a)(ia).
10. Set off of accumulated losses and depreciation allowance.

Detailed Analysis:

1. Addition of Rs. 3.83 crores under Section 92CA(3):
The assessee contested the addition made by the Transfer Pricing Officer (TPO) and confirmed by the Dispute Resolution Panel (DRP). The TPO had benchmarked the Arm's Length Price (ALP) of the purchases from associated enterprises (AEs) and made an adjustment of Rs. 3.83 crores, which was beyond the 5% variation allowed. The Tribunal agreed with the assessee's contention that TP adjustment should be limited to AE transactions only and not the entire turnover. The Tribunal found that the adjustment was within the safe harbor of +/- 5% and thus, no TP adjustment was required. The addition was deleted.

2. Rejection of Nicco Corporation Limited as a Comparable Company:
The assessee argued that the TPO and AO erred in rejecting Nicco Corporation Limited as a comparable solely based on its financial losses, disregarding Rule 10B(2). However, since the primary relief was granted under Ground No. 5, this ground was not pressed by the assessee and was dismissed.

3. Applicability of +/- 5% Variation under Section 92C(2):
The assessee contended that the TPO and AO violated the proviso to Section 92C(2) by restricting the applicability of the +/- 5% variation only to international purchases and not to sales. The Tribunal's decision on Ground No. 5, which found the adjustment within the safe harbor, rendered this ground moot and it was dismissed.

4. Use of Comparables' Data for Multiple Years under Rule 10B(4):
The assessee argued that the TPO and AO violated Rule 10B(4) by not allowing the use of comparables' data for two years prior to the financial year 2005-06. This ground was also not pressed by the assessee following the relief granted on Ground No. 5 and was dismissed.

5. Attribution of the Entire Shortfall to Transactions with Associated Enterprises:
The assessee contended that the TPO and AO erred in attributing the entire shortfall of Rs. 3.83 crores to transactions with AEs instead of apportioning it to all transactions. The Tribunal's decision on Ground No. 5 addressed this issue, and the ground was dismissed as not pressed.

6. Contravention of the Hon'ble DRP's Directions under Section 144C(5):
The assessee claimed that the AO violated Section 144C(13) by issuing the assessment order in contravention of the DRP's directions. This ground was not specifically addressed due to the primary relief granted on Ground No. 5.

7. Violation of Principles of Natural Justice:
The assessee argued that the AO and TPO did not grant a reasonable opportunity before passing the order, violating the principles of natural justice. The Tribunal did not specifically address this ground as the primary relief on Ground No. 5 rendered it moot.

8. Disallowance of Employee's Contribution to Provident Fund:
The assessee contended that the AO erred in disallowing payments made towards employees' provident fund contributions on the ground of delayed payment. The Tribunal held that no disallowance should be made if payments were made before the due date of filing the return. The matter was restored to the AO for verification.

9. Disallowance under Section 40(a)(ia):
The assessee argued that the AO erred in disallowing Rs. 1,71,38,714 under Section 40(a)(ia) on the ground that no TDS details were submitted. The Tribunal restored the issue to the AO for re-adjudication, directing that no disallowance should be made if TDS was deducted and paid.

10. Set off of Accumulated Losses and Depreciation Allowance:
The assessee contended that the AO erred in disallowing the carry forward and set off of accumulated losses and unabsorbed depreciation due to the non-submission of the accountant's certificate in Form No. 62. The Tribunal restored the issue to the AO for re-adjudication, allowing the assessee to submit the necessary certificate.

Conclusion:
The appeal was partly allowed for statistical purposes, with specific grounds restored to the AO for verification and re-adjudication. The primary relief on TP adjustment was granted, and other related grounds were dismissed as not pressed.

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