2020 (3) TMI 1444 - AT - Income Tax

TP Adjustment - comparable selection - HELD THAT - We considering the functional dissimilarities and failure of upper turnover filters, judicial decision of the co-ordinate bench of the Tribunal for the assessment year 2006-2007, direct the TPO to exclude a) Infosys Limited b) Tata Elxsi Limited c) Kals Information Systems Limited d) Persistent Systems Limited e) Aztec Soft Limited from the final list of comparables for determination of ALP. The comparable(f) Bodhtree Consulting Limited, whose the turnover is Rs.5.31 Crores and functionally dissimilar and is also engaged in product sales., directed to be excluded from the final list of comparables for determination of ALP. Disallowance of software expenditure under Section 37 - AO has treated as capital expenditure and no depreciation was allowed - HELD THAT - We on perusal of the draft assessment order passed by the Assessing Officer found that the assessee has filed the details of software expenses but the A.O s observations that the assessee is not in a position to show that it was put to use during the year and no documentary proof was submitted to substantiate the usage of software. DRP observed that the assessee has failed to prove the corresponding assets were put to use by the end of the financial year and therefore depreciation was not allowed. Even before us, the assessee could not file the details of usage of corresponding assets for the purpose of business during the financial year and no documentary proof was filed. Assessee was provided an opportunity by the ITAT in remanding the disputed issue to the Assessing Officer, but he could not substantiate with proof on usage of assets in the previous year. Accordingly, we do not find any merit in the submissions and alternative pleas and confirm the action of the Assessing Officer and dismiss the ground of appeal of the assessee. Credit for taxes paid in protest - AR contentions are that in the final assessment order, the Assessing Officer has not granted the credit for taxes paid - HELD THAT - We considering the facts and submissions direct the Assessing Officer to grant credit of taxes paid after due verification and allow the ground of appeal for statistical purposes.

Summary

Issues involved:
1. Appeal against order under Section 143(3) r.w.s. 144C r.w.s. 254 of the Income Tax Act, 1961.
2. Exclusion of comparables in the software development segment.
3. Disallowance of software expenditure under Section 37 of the Act.
4. Credit for taxes paid in protest not granted.

Issue 1: Appeal against order under Section 143(3) r.w.s. 144C r.w.s. 254 of the Income Tax Act, 1961:
The assessee appealed against the order under Section 143(3) r.w.s. 144C r.w.s. 254 of the Income Tax Act, 1961, passed in compliance with the directions of the Dispute Resolution Panel (DRP) order under Section 144C(5). The case involved international transactions of software development services, leading to Transfer Pricing Adjustment. The final assessment order was passed after objections were filed before the DRP. The ITAT remitted the disputed issues back to the Assessing Officer for fresh consideration. The TPO computed the Arm’s Length Price (ALP) and passed the order under Section 92CA. The Assessing Officer then passed the draft assessment order with Transfer Pricing Adjustment, leading to the appeal before the Tribunal.

Issue 2: Exclusion of comparables in the software development segment:
The assessee sought to exclude certain comparables in the software development segment based on functional dissimilarities and turnover filters. The Authorized Representative argued for the exclusion of specific companies like Infosys Limited, Tata Elxsi Limited, Kals Information Systems Limited, Persistent Systems Limited, Aztec Soft Limited, and Bodhtree Consulting Limited. The exclusion was supported by detailed submissions and reference to previous Tribunal decisions. The Tribunal directed the TPO to exclude the specified comparables for the determination of ALP based on functional dissimilarities and failure to meet turnover filters.

Issue 3: Disallowance of software expenditure under Section 37 of the Act:
The Assessing Officer disallowed software expenditure as capital expenditure, leading to no depreciation allowance. The assessee contended that if not allowed as revenue expenditure, depreciation should be permitted. However, the AO found no proof of software usage during the year, which was not substantiated even after remand by the ITAT. The DRP also noted the failure to prove asset usage by the end of the financial year. Consequently, the Tribunal upheld the Assessing Officer's decision, dismissing the appeal on this ground.

Issue 4: Credit for taxes paid in protest not granted:
The LdAr highlighted that the Assessing Officer did not grant credit for taxes paid in protest amounting to Rs.3 Crores. The DRP directed the AO to examine and allow the credit after verification. Despite this, the credit was not granted in the final assessment order. Considering the facts and submissions, the Tribunal directed the Assessing Officer to grant credit for taxes paid after verification and allowed the ground of appeal for statistical purposes.

In conclusion, the Tribunal partly allowed the assessee's appeal for statistical purposes, addressing the issues raised regarding the exclusion of comparables, disallowance of software expenditure, and credit for taxes paid in protest.