2018 (3) TMI 1990 - AT - Income Tax

Assessment u/s 144C - DRP did not admit the additional evidence filed - Whether DRP violates the principles of judicial discipline as the binding nature of the orders of the higher appellate authorities have been totally ignored? - HELD THAT - Before the DRP the assessee has filed additional evidence on 29.08.2017 but it was not admitted by the DRP having observed that these evidence should have been filed before the TPO. Without looking to the additional evidence, the DRP has adjudicated the issues and confirmed the order of the TPO. In the earlier years also, the DRP did not admit the additional evidence and confirmed the order of the AO and the Tribunal in all these years set aside the order of the DRP and restored the matter to the AO/TPO to readjudicate the issues raised before the Tribunal afresh, after affording opportunity of being heard to the assessee. We are of the view that let this matter also go back to the AO/TPO to readjudicate the issues raised before us afresh, after affording opportunity of being heard to the assessee. Appeal of the assessee stands allowed for statistical purposes.

Summary

Issues Involved:
1. Jurisdiction and legality of the orders by AO, TPO, and DRP.
2. Computation of total income and tax.
3. Transfer Pricing adjustments.
4. Disallowances and additions by AO/DRP.
5. Levy of interest under Section 234B.

Detailed Analysis:

1. Jurisdiction and Legality of Orders:
The appellant contested that the orders from the AO, TPO, and DRP were against the law, facts, circumstances, natural justice, and equity. The appellant argued that the orders were without jurisdiction and bad in law, requiring them to be set aside. The DRP's directions were claimed to be unsustainable and issued without considering relevant materials and evidence, violating judicial discipline by ignoring higher appellate authorities' binding nature.

2. Computation of Total Income and Tax:
The appellant disputed the total income and tax computed by the AO. The computation was challenged on the grounds of being incorrect and not in accordance with the law.

3. Transfer Pricing Adjustments:
The primary issue revolved around the adjustments made by the TPO under Section 92CA of the Act, leading to a significant tax liability of Rs. 467,84,14,615/-. The appellant raised multiple objections:
- Royalty Payments: The adjustment of Rs. 10,82,48,490/- towards royalty for technology use was contested for lack of comparable transactions.
- Distribution Segment: The adjustment of Rs. 419,24,94,988/- was disputed on grounds including the inclusion of non-AE transactions and incorrect financial results.
- Software Services: The adjustment of Rs. 27,69,08,318/- was challenged due to inappropriate selection of comparables and financial results.
- Support Services: The adjustment of Rs. 10,07,62,819/- was disputed for not determining comparable transactions and considering transactions before 01.04.2013.

The appellant also contended that the DRP failed to admit additional evidence submitted, which was crucial for justifying their claims. The Tribunal had previously set aside similar orders for earlier years, directing the AO/TPO to re-examine the issues with the additional evidence.

4. Disallowances and Additions by AO/DRP:
Several disallowances and additions made by the AO/DRP were contested by the appellant:
- Provision for Obsolescence of Inventory: Rs. 18,04,89,926/- disallowed.
- Foreign Exchange Fluctuation Loss: Rs. 43,59,719/- disallowed.
- Provision for Contingent Liability: Rs. 15,99,635/- disallowed.
- Provision for Foreseeable Losses: Rs. 1,28,33,674/- disallowed.
- Interest on Investment: Rs. 78,15,500/- disallowed.
- Dealer Commission, Advertisement, Legal and Professional, Miscellaneous, Repairs and Maintenance Expenses: Disallowed for non-deduction of tax at source.
- Capital Expenditure: Rs. 57,36,149/- treated as capital expenditure and amortized over five years.

The appellant argued that these disallowances were made without providing sufficient opportunity to present their case, thus violating the principles of natural justice.

5. Levy of Interest under Section 234B:
The appellant denied the liability for interest under Section 234B, arguing that interest should only be levied on the returned income. They also claimed that no opportunity was provided before the levy of interest and sought consequential relief, relying on the Supreme Court's decision in CIT v Kwality Biscuits Ltd.

Conclusion:
The Tribunal, after examining the orders of the lower authorities and previous Tribunal decisions, found that the DRP did not admit additional evidence and confirmed the TPO's order without proper consideration. The Tribunal decided to set aside the DRP's order and remand the matter back to the AO/TPO for re-adjudication, ensuring that the appellant is given an opportunity to present additional evidence. The appeal was allowed for statistical purposes, with directions for the AO/TPO to re-examine the issues afresh.

Pronouncement:
The appeal was pronounced in the open court on March 23, 2018.