2015 (12) TMI 33 - AT - Income Tax

Transfer pricing adjustment - selection of comparable externally - Held that - As the TPO had erred in choosing an external comparable, when there was an internal comparable uncontrolled transaction which the assessee had taken in its TP study. - Decided in favour of assessee Disallowance u/s. 40(a)(i) relating to the payments of bio-study expenses - Held that - DRP correctly deleted the disallowance following the decision of the Hon ble jurisdictional High Court in the case of De beer India Minerals Pvt. Ltd 2012 (5) TMI 191 - KARNATAKA HIGH COURT - Decided in favour of assessee Disallowance of employees contribution to PF/ESI u/s. 36(1)(va) - Held that - The provision of section 43B encompasses in its ambit, employee s contribution too. Therefore, considering the various judicial precedents and going by the intention of the legislature, we respectfully submit that delayed payment of employee s contribution to ESI fund should be allowed as deduction under section 36(1)(va) of the Act read with section 43B of the Act if the said payments are made on or before the due date for filing the return of Income. See COMMISSIONER OF INCOME-TAX Versus ANZ INFORMATION TECHNOLOGY P. LTD. 2009 (9) TMI 69 - KARNATAKA HIGH COURT - Decided in favour of assessee

Issues Involved:
1. Rejection of internal TNMM by TPO.
2. Computation of working capital adjustment.
3. Disallowance under section 40(a)(i) for bio-study expenses.
4. Disallowance of employees' contribution to PF/ESI under section 36(1)(va).

Detailed Analysis:

1. Rejection of Internal TNMM by TPO:
The primary issue in the assessee's appeal was the rejection of internal TNMM (Transactional Net Margin Method) by the Transfer Pricing Officer (TPO). The TPO rejected the internal TNMM applied by the assessee for the sale of formulations to Associated Enterprises (AEs) and non-AEs, citing a significant variation in operating margins. The Dispute Resolution Panel (DRP) upheld this rejection. The assessee argued that the TPO did not provide an opportunity to present its case regarding the internal TNMM. The Tribunal noted that the internal TNMM showed an arm's length analysis of 8.80% for AEs and 8.51% for non-AEs. Citing the Third Member decision in the case of M/s. Technimont ICB Pvt. Ltd., the Tribunal emphasized the preference for internal comparables over external ones. The Tribunal concluded that the TPO erred in choosing an external comparable when an internal comparable was available and allowed the assessee's appeal on this ground.

2. Computation of Working Capital Adjustment:
The Department's appeal raised the issue of the DRP directing the AO to compute the mean of working capital adjustment based on the assessee's actual figures without restrictions. The Tribunal dismissed this ground, as it had already decided the related issue in favor of the assessee in the earlier part of the judgment.

3. Disallowance under Section 40(a)(i) for Bio-study Expenses:
The Department contested the DRP's deletion of the disallowance of Rs. 1,50,64,297 under section 40(a)(i) related to bio-study expenses. The DRP had followed the jurisdictional High Court's decision in the case of De Beers India Minerals Pvt. Ltd., which the Department had not accepted and had appealed to the Supreme Court. The Tribunal, bound by the jurisdictional High Court's decision, dismissed the Department's grounds, upholding the DRP's deletion of the disallowance.

4. Disallowance of Employees' Contribution to PF/ESI under Section 36(1)(va):
The Department also challenged the DRP's deletion of the disallowance of Rs. 7,621 for delayed remittance of employees' contribution to PF/ESI. The assessee argued that the contributions were made before the due date for filing the return of income under section 139(1). The Tribunal noted that various judicial pronouncements, including the Supreme Court's decision in CIT vs. Alom Extrusions Ltd., allowed such deductions if payments were made before the due date for filing the return. The Tribunal agreed with the DRP's decision to delete the disallowance, aligning with the jurisdictional High Court's ruling in CIT v. ANZ Information Technology Pvt. Ltd.

Conclusion:
The Tribunal allowed the assessee's appeal, rejecting the TPO's external TNMM in favor of the internal TNMM and upheld the DRP's decisions on working capital adjustment, bio-study expenses, and employees' contribution to PF/ESI. The Department's appeal was dismissed in its entirety.

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