2015 (8) TMI 418 - AT - Income Tax

Transfer Pricing adjustments - assessee had raised specific ground before the DRP argued that the TPO had included the comparables that were not relevant for determining the ALP or had excluded the comparables that were relevant,that the TPO had adopted incorrect operating margins for certain companies,that he had not considered entity level revenue,that he did not allow the assessee the benefit of risk adjustment - Held that - Directions of the DRP are silent over all the issues raised by the assessee against the order of the TPO.In our opinion,the order of the DRP falls under the category of non speaking order devoid of reasons.While deciding the ground with regard to comparables,that the TPO had done a systematic search and identified comparables from the accept reject method of the taxpayer s search itself,that the TPO had applied proper filters and obtained segmental accounts. In our opinion,these observations are very general and do not deal with the specific objections raised by the assessee.The DRP is supposed to support or distinguish the comparables,when the assessee files objection citing the decided judgments.In the case before us,the DRP has not discussed merits of any of the comparables objected to by the assessee.Similarly,the final decision of the DRP about FAR analysis is very general. Thus the order passed by the DRP is vague and unclear. So,in the interest of justice,matter is being restored back to the file of the DRP for fresh adjudication, who would afford a reasonable opportunity of hearing to the assessee. - Decided in favour of assessee for statistical purposes. Non exclusion of expenses incurred in foreign currency for travelling and communication charges from the total turnover - Held that - The aforesaid question stands answered against the revenue in view of the decision of this Court in the case of CIT V/s. Gem Plus Jewellery India Ltd. Reported in 2010 (6) TMI 65 - BOMBAY HIGH COURT wherein held exemption u/s. 10A to be granted on foreign exchange gain earned (due to fluctuation of foreign exchange) on realization of export receipts in the year of export - Decided in favour of assessee

Issues Involved:

1. Assessment of total income.
2. Transfer Pricing adjustments.
3. Computation of export turnover.
4. Computation of demand of tax.
5. Penalty proceedings.

Detailed Analysis:

1. Assessment of Total Income:

The assessee challenged the assessment of total income at Rs. 53,26,28,665 against Rs. 14,15,18,000 as computed in its return of income. However, during the hearing, the Authorized Representative (AR) did not press this ground, and it was dismissed as not pressed.

2. Transfer Pricing Adjustments:

a. General Observations:
The Transfer Pricing Officer (TPO) made adjustments under Section 92(4) of the Act, determining that the international transactions were not at arm's length. The TPO used the Transactional Net Margin Method (TNMM) and considered the profit level indicator (PLI) as operating profit/operating cost (OP/OC).

b. Comparables and Data:
The TPO rejected the use of 3-year weighted average data and instead used data only for the financial year 2008-09. The TPO also rejected some comparables selected by the assessee and included additional comparables. The assessee's objections regarding these rejections and inclusions were not adequately addressed by the Dispute Resolution Panel (DRP).

c. Specific Comparables:
The DRP upheld the TPO's decision without detailed reasoning, particularly regarding the rejection of CG-VAK Software and Exports, SIP Technologies and Exports Ltd., and R.S. Software (India) Ltd. The DRP also failed to address the issue of working capital and risk adjustments.

d. Operating Margins and Adjustments:
The DRP did not provide specific findings on the operating margins for companies like Quintegra Limited, Mindtree Limited, and Sasken Limited. The DRP's order was deemed a non-speaking order devoid of reasons, and the matter was restored to the DRP for fresh adjudication with directions to pass a reasoned order.

3. Computation of Export Turnover:

The issue pertained to the non-exclusion of expenses incurred in foreign currency for traveling and communication charges from the total turnover while computing the deduction under Section 10A and Section 10AA of the Act. The DRP directed the AO to verify and compute the deduction as per law. The Tribunal, following the jurisdictional High Court's judgment, decided this issue in favor of the assessee.

4. Computation of Demand of Tax:

a. Short Granting of Credit:
The assessee claimed that there was a short granting of credit for taxes deducted at source amounting to Rs. 24,28,364. The AO was directed to address this issue.

b. Levying of Interest:
The assessee challenged the excess interest levied under Section 234B and interest under Section 234C on assessed income rather than returned income. These grounds were allowed for statistical purposes, and the AO was directed to decide the rectifications within a month.

5. Penalty Proceedings:

The initiation of penalty proceedings under Section 271(1)(c) of the Act was not pressed by the AR during the hearing and was dismissed as not pressed.

Conclusion:

The appeal filed by the assessee was partly allowed. The DRP was directed to re-adjudicate the transfer pricing issues with a reasoned order, and the AO was instructed to address the pending rectification applications and compute the deductions as per the High Court's judgment. The Tribunal emphasized the importance of passing a reasoned and speaking order, highlighting the deficiencies in the DRP's approach.

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