2017 (10) TMI 1385 - AT - Income Tax

TPA - comparable selection criteria - Held that - The assessee is a wholly owned subsidiary of Haworth Inc. USA. The assessee company is engaged in the business of manufacturing and trading of furniture (primarily chairs) thus companies functionally dissimilar with that of assessee need to be deselected from final list. Exclusion of liabilities written back and bad debts recovered from operating margin of MSS segment - Held that - The liabilities written back and bad debts recovered are part of operating income of the assessee. AR has pointed that similar disallowance was made in assessment year 2004-05 and the Commissioner of Income Tax (Appeals) allowed the claim of assessee. Thereafter the Department has not agitated this issue before the Tribunal. We find that Delhi Bench of the Tribunal in the case of Sony India (P) Ltd. 2008 (9) TMI 420 - ITAT DELHI-H has held that there is no justification for excluding provision written back in Profit and Loss account not forming part of operating profits. Computation of arm s length price of Management Service Fee paid by assessee to AE - Held that - The assessee has given the details of benefits derived by the assessee from the management service rendered by its AE Haworth Hong Kong Ltd. at page 282 of the paper book. The assessee has also filed additional evidence in respect of management services provided by its AE. In view of fresh evidence furnished by assessee without commenting on the merits we deem it appropriate to remit this issue back to file of Assessing Officer/TPO for de novo adjudication. The Assessing Officer shall consider fresh documents filed by assessee and all other relevant documents. The Assessing Officer shall also grant opportunity of hearing to the assessee before deciding the issue in accordance with law. Accordingly ground No. 7 raised in the appeal by assessee is allowed for statistical purpose. Modification in selection of comparables under Manufacturing Segment - Held that - TPO had made no adjustment in respect of manufacturing segment. DRP has also not commented on this issue. We observe that the findings of TPO on this issue are cryptic. We are of considered opinion that this issue requires revisit to TPO/Assessing Officer for fresh adjudication. The TPO is directed to pass a speaking order after affording opportunity of hearing to the assessee while adjudicating this issue in accordance with law. Accordingly ground No. 8 raised in the appeal by assessee is allowed for statistical purpose.

Summary

Issues Involved:
1. Segregation of Distribution Activity from Marketing Support Services (MSS) Segment.
2. Inclusion/Exclusion of Comparables under MSS Segment.
3. Exclusion of Liabilities Written Back and Bad Debts Recovered from Operating Margin.
4. Computation of Arm's Length Price of Management Service Fee (MSF) Paid to Associated Enterprise (AE).
5. Modification in Selection of Comparables under Manufacturing Segment.

Detailed Analysis:

1. Segregation of Distribution Activity from MSS Segment:
The Tribunal held that the change in the method of remuneration from commission to cost-plus markup does not alter the nature of the distribution activity. The assessee's distribution activities should not be segregated from the MSS segment as the Department had previously accepted this aggregation. The Tribunal set aside the lower authorities' findings and allowed the ground in favor of the assessee.

2. Inclusion/Exclusion of Comparables under MSS Segment:

ICRA Online Limited:
The Tribunal noted that in the assessee's case for the assessment year 2007-08, ICRA Online Limited was deemed functionally different and excluded from the comparables list. The Hon'ble High Court upheld this decision. Thus, the Tribunal directed the exclusion of ICRA Online Limited from the list of comparables for the current assessment year as well.

Agrima Consultants International Limited:
The Tribunal found that Agrima Consultants International Limited is engaged in providing financial consultancy services, which are functionally different from the assessee's activities of manufacturing and marketing high-end furniture. The Tribunal allowed the exclusion of Agrima Consultants International Limited from the list of comparables.

Empire Industries Limited:
The Tribunal held that since the distribution activities are not to be excluded from the MSS segment, Empire Industries Limited should be included in the final list of comparables. The Tribunal allowed this ground in favor of the assessee.

Entertainment Network (India) Limited:
The assessee did not press for the exclusion of this company from the list of comparables.

3. Exclusion of Liabilities Written Back and Bad Debts Recovered from Operating Margin:
The Tribunal found merit in the assessee's claim that the liabilities written back and bad debts recovered are part of the operating income. The Tribunal referred to the case of Sony India (P.) Ltd. and held that there is no justification for excluding these items from the operating margin. The Tribunal allowed this ground in favor of the assessee.

4. Computation of Arm's Length Price of MSF Paid to AE:
The Tribunal noted that the assessee had provided details of the benefits derived from the management services. The Tribunal remitted the issue back to the Assessing Officer/TPO for de novo adjudication, allowing the consideration of fresh evidence and granting an opportunity for a hearing to the assessee.

5. Modification in Selection of Comparables under Manufacturing Segment:
The Tribunal observed that the TPO had made no adjustment in respect of the manufacturing segment and that the findings were cryptic. The Tribunal remitted the issue back to the TPO/Assessing Officer for fresh adjudication with a directive to pass a speaking order after affording an opportunity for a hearing to the assessee.

Conclusion:
The appeal of the assessee was partly allowed, with specific grounds being remitted back for fresh adjudication and others being decided in favor of the assessee. The Tribunal directed the authorities to provide a detailed and reasoned order after considering the evidence and affording an opportunity for a hearing.