2016 (7) TMI 660 - AT - Income Tax

Inclusion of reimbursable cost as operating cost by TPO - Held that - Exclusion of reimbursement cost from the operating cost for determining the ALP confirmed. Deduction u/s. 10A computation - Held that - We direct the AO to re-compute the reduction u/s. 10A after reducing the communication charges both from the export turnover as well as total turnover Reduction of foreign exchange gain from business profits while computing deduction u/s. 10A - Held that - We are considered that this issue is no longer res integra. In the case of ITO Vs. Banyan Limited 2008 (12) TMI 296 - ITAT AHMEDABAD it was held that the foreign exchange gain on account of fluctuation qua export business is eligible for exemption u/s. 10B. Since the foreign exchange gain is on account of fluctuation on foreign exchange received for the services rendered by assessee, this has to be treated as profits of business for computing the reduction u/s. 10A. Non setting off the carried forward un-absorbed depreciation, business loss relating to non- STPI business - Held that - Even on the principles of law, the issue was decided in favaour of assessee in the case of CIT Vs. Yokogawa India Ltd., by the Hon ble High Court of Karnataka reported in 2011 (8) TMI 845 - Karnataka High Court , wherein it was held that exemption u/s. 10A has to be allowed without setting of brought forward unabsorbed losses and depreciation from earlier assessment year, in the case of non-STP units. Applying the principles therein, the un-absorbed losses and depreciation in the case of non-STP units are to be separately considered and AO is directed to allow the same with reference to income of non-STPI units.

Issues Involved:

1. Transfer Pricing issues
2. Corporate issues
3. Interest under sections 234B and 234C
4. Initiation of penalty proceedings

Detailed Analysis:

Transfer Pricing Issues:

The assessee, engaged in computer software development services, had international transactions with its Associated Enterprise (AE), leading to a reference to the Transfer Pricing Officer (TPO). The TPO proposed a Transfer Pricing (TP) adjustment of Rs. 20,09,31,663 based on a fresh search and selection of 26 comparables, arriving at an adjusted arithmetic mean of 22.84%. The Dispute Resolution Panel (DRP) excluded one company, M/s. Celestial Labs Ltd., and directed the AO to work out the Arm's Length Price (ALP) accordingly.

The Tribunal noted that the assessee contested the inclusion and exclusion of certain comparables. The companies not objected to by the assessee were listed, while objections pertained to companies such as Avani Cimcon Technologies Ltd, Infosys Technologies Ltd, and others, which the Tribunal found to be functionally different or not meeting the required filters. The Tribunal referred to various precedents where similar companies were excluded due to reasons such as super normal profits, functional dissimilarity, or failing employee cost filters.

The Tribunal directed the AO/TPO to exclude the contested companies and only consider the segmental margin for Megasoft Ltd. The Tribunal also addressed the inclusion of reimbursable costs as operating costs, directing exclusion based on precedents.

Corporate Issues:

1. Reduction of Communication Charges:
The Tribunal directed the AO to exclude communication charges from both export turnover and total turnover while computing deduction under section 10A, following the precedent set in the assessee's own case for AY 2008-09 and other judicial decisions.

2. Foreign Exchange Gain:
The Tribunal held that foreign exchange gain on account of fluctuation related to export business is eligible for exemption under section 10A, directing the AO to treat it as 'profits of business' for computing the deduction.

3. Set-off of Carried Forward Loss and Unabsorbed Depreciation:
The Tribunal directed the AO to allow the benefit of carried forward loss and unabsorbed depreciation after examining the past records, following the principles laid down in the case of CIT vs. Yokogawa India Ltd. and other jurisdictional High Court decisions.

Interest Under Sections 234B and 234C:

The Tribunal directed the AO to provide an opportunity to the assessee to raise objections before levying any interest in the consequential orders, making this issue consequential.

Initiation of Penalty Proceedings:

The Tribunal noted that the ground regarding the initiation of penalty proceedings was premature for consideration at this stage.

Conclusion:

The appeal was partly allowed for statistical purposes, with specific directions on the exclusion and inclusion of comparables in the TP analysis, treatment of reimbursable costs, communication charges, foreign exchange gains, and set-off of carried forward losses and unabsorbed depreciation. The AO was directed to provide an opportunity for objections before levying interest under sections 234B and 234C.

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