2017 (1) TMI 311 - AT - Income Tax

Disallowance under section 37(1) on account of any allocation of cost - Cost allocated by the AEs - Held that - Assessee has placed on record the evidence of support services being received from the AEs which are in the nature of back office accounting services and IT support services which enable the assessee to run its business in India. The assessee has no establishment in India and has only a branch office wherein it is utilizing the place of its AEs and is also using services for carrying on its service or providing procurement services to its principal, i.e. EIMG, Switzerland, then it cannot be said that the said expenditure has not been wholly and exclusively incurred for the purpose of business. The cost of the services provided by the AEs has been allocated on a formula which has been followed form year to year and there is no merit in disallowance of the cost incurred on receipt of support services from its AE. In the entirety of the fact and evidences produced by the assessee in respect of its claim of receipt of services from its AEs in India, both support services and Corporate services and also considering the fact that the assessee was recovering the said cost with markup of 18.8%, there is no merit in the disallowance made under section 37(1) of the Act. Further, the transaction is deemed to have been accepted at Arm s Length price where no such adjustment has been made by the Assessing Officer. The Assessing Officer in its order makes a remark that the assessee had not produced the order of TPO for assessment year 2011-12 to show that the cost allocation transactions were accepted at Arm s Length. There is no merit in the said observation of the Assessing Officer as under the statute it is incumbent upon the Assessing Officer, if it thinks fit, to make a reference to the TPO under section 92C of the Act to benchmark the international transactions entered into by the assessee. The Assessing Officer in the present case has failed to make any such reference. Consequently, there is no merit in the observation of the Assessing Officer in this regard. Accordingly, we direct the Assessing Officer to allow the expenditure - Decided in favour of assessee

Summary

Issues Involved:
1. Assessment of total income under section 143(3) read with section 144C(13) of the Income-tax Act, 1961.
2. Disallowance of expenditure under section 37(1) towards cost allocated by associated enterprises (AEs) for support services.
3. Disallowance of expenditure under section 37(1) towards cost specifically incurred in connection with the assessee's Indian operations.
4. Disallowance of expenditure under section 37(1) towards corporate cost allocated by Eaton Technologies Private Limited (ETPL).
5. Failure to appreciate submissions/evidences furnished by the assessee.
6. Levying interest under section 234B of the Act.

Detailed Analysis:

Issue 1: Assessment of Total Income
The assessee challenged the assessment of total income at INR 2,76,23,600 against the returned income of INR 1,33,23,590. This issue was dismissed as general.

Issue 2: Disallowance of Expenditure for Support Services
The assessee contended the disallowance of INR 39,70,458 under section 37(1) towards support services cost allocated by AEs, arguing it failed to establish receipt and benefits of services. The Assessing Officer (AO) and Dispute Resolution Panel (DRP) determined the arm's length price (ALP) of these services as nil due to lack of documentary evidence. The Tribunal found that the assessee had provided sufficient evidence of receiving support services, which were necessary for its business operations in India. The Tribunal directed the AO to allow the expenditure.

Issue 3: Disallowance of Expenditure for Indian Operations
The assessee challenged the disallowance of INR 33,67,455 under section 37(1) for costs specifically incurred in connection with its Indian operations. The AO/DRP disallowed these expenses due to insufficient proof of receipt and benefits. The Tribunal noted that the costs were directly linked to the assessee's business activities and should be allowed as they were incurred wholly and exclusively for business purposes.

Issue 4: Disallowance of Corporate Cost Allocation
The assessee contested the disallowance of INR 69,62,059 under section 37(1) for corporate costs allocated by ETPL. The AO/DRP disallowed these expenses, determining the ALP as nil due to lack of evidence for actual receipt and benefits. The Tribunal found that the corporate costs were routine and necessary for the assessee's operations, and the allocation formula was consistently applied. The Tribunal directed the AO to allow these expenses.

Issue 5: Failure to Appreciate Submissions/Evidences
The assessee argued that the AO/DRP failed to appreciate the evidence submitted to establish the receipt and benefits of the services. The Tribunal reviewed the evidence and found it sufficient to support the assessee's claims, leading to the allowance of the disputed expenditures.

Issue 6: Levying Interest under Section 234B
The issue of levying interest under section 234B was consequential and dependent on the outcome of the other issues. Given the Tribunal's decisions on the disallowances, the interest levied under section 234B would need to be recalculated accordingly.

Conclusion:
The Tribunal allowed the appeal partly, directing the AO to allow the expenditures of INR 1,03,29,514 and INR 39,70,458, thereby addressing the disallowances under section 37(1) and the related issues. The appeal was pronounced on December 28, 2016.