2018 (5) TMI 2067 - AT - Income Tax

TP Adjustment - AR contended that the amount of transfer pricing adjustment as computed but not separately added in respect of Software development services and Software consultancy services etc. is the consequence of the first step of determination of the ALP of these international transactions followed by considering their impact on the transfer pricing adjustment in the international transaction of Management fee - HELD THAT - As argued that if the Bench is to remit the matter back to the TPO, then fresh determination of all such transactions should be ordered. DR did not object to the proposal of the ld. AR for ordering a fresh determination of ALP of all such international transactions to the AO/TPO - as added that if in such fresh exercise, certain additions get required to be made in the international transactions in which earlier the transfer pricing adjustments were computed but no additions were made in the final assessment order, then there should be no embargo on the power of the AO/TPO to make such additions. AR candidly conceded to this proposition. In view of the rival but common submissions, we set aside the impugned order and remit the matter to the file of AO/TPO for determining a fresh ALP of all the international transactions, including, those for which no addition was made in the final assessment order though the amount of transfer pricing adjustment was computed by the TPO. Needless to say, the assessee will be allowed a reasonable opportunity of hearing in such fresh proceedings. Capitalization of software licence fee - AO Treated such payment as leading to generating an intangible asset. After allowing depreciation @ 25%, he made an addition - HELD THAT - The issue raised through this ground is of recurring nature. The Tribunal in its order 2017 (8) TMI 281 - ITAT DELHI for the assessment year 2007-08 dealt with it and eventually deleted the addition made by the Assessing Officer. Relevant discussion has been made. For assessment year 2009-10 also 2018 (4) TMI 444 - ITAT DELHI the Tribunal has repeated its earlier view in deleting the addition. Since the facts and circumstances of the instant ground are mutatis mutandis similar to those of the preceding years, respectfully following the precedent, we order to delete the addition made by the Assessing Officer by capitalizing payment made by the assessee to Aircom, UK and then making disallowance after allowing depreciation thereon.

Summary

Issues Involved:
1. Transfer pricing adjustment of ?2,51,63,689
2. Capitalization of software license fee

Transfer Pricing Adjustment Issue:
The appeal was against the addition of ?2,51,63,689 made by the Assessing Officer on transfer pricing adjustment. The assessee was engaged in various software-related services and reported international transactions. The Transfer Pricing Officer (TPO) recommended adjustments in different segments, with a significant adjustment in management fees. The Dispute Resolution Panel (DRP) supported the addition but deleted a separate adjustment on software consultancy charges. The Tribunal noted similar issues in previous years and remitted the matter back to the Assessing Officer/TPO for fresh determination of the arm's length price (ALP) for management fees. The Tribunal considered the interconnection of various transactions and ordered a fresh determination of ALP for all international transactions, ensuring the assessee's right to a fair hearing.

Capitalization of Software License Fee Issue:
Regarding the capitalization of a software license fee, the assessee claimed a deduction for payments made under a non-exclusive license agreement. The Assessing Officer treated it as creating an intangible asset, leading to an addition of ?2,13,10,317. The DRP upheld this decision. However, the Tribunal, based on previous rulings, including for the assessment year 2007-08, ordered the deletion of the addition. The Tribunal found the issue to be recurring and similar to previous cases, hence ruling in favor of the assessee and deleting the addition made by the Assessing Officer.

In conclusion, the Tribunal partially allowed the appeal, directing a fresh determination of ALP for all international transactions related to the transfer pricing adjustment issue and deleting the addition related to the capitalization of the software license fee.