2017 (10) TMI 1008 - HC - Income Tax

Directions issued under Section 144C(5) of the Income Tax Act by DRP - maintainability of the Writ Petition - transfer pricing adjustment - whether the DRP has recorded any factual findings while disagreeing with the TPO with regard to computing quantum of adjustment? - Held that - DRP while issuing directions has directed adjustment by examining the facts. This direction is required to be implemented by the Assessing Officer after which it ripens into an assessment order open to challenge in terms of the provision of the Act. This appears to be precisely the reason for terming the impugned order as a direction under Section 144C (5) of the Act and it ripens into an order on being given effect to by the Assessing Officer. Therefore, we are convinced that the decisions cited by Mr.N.Venkatraman, cannot be applied, at this juncture, as the factual position requires to be considered, which obviously cannot be done in a Writ Petition and therefore, the impugned direction issued by the DRP has to be given effect to and the third respondent has to pass an order of assessment, which can be questioned by the petitioner by filing an appeal before the Tribunal. For all the above reasons, the Writ Petition is dismissed with direction to the third respondent to give effect to the directions issued by the DRP, dated 13.12.2016, by passing an assessment order, after which, it is open to the petitioner to challenge the same before the Tribunal

Issues Involved:

1. Disallowance under Section 14A of the Income Tax Act.
2. Reduction of subsidy from the cost of the asset and disallowance of depreciation.
3. Treatment of export incentives as income.
4. Disallowance of additional depreciation.
5. Disallowance of provisions for warranty.
6. Restriction of depreciation on UPS, Scanners, and Printers.
7. Disallowance of guarantee charges paid to the parent company.
8. Disallowance of performance reward under Section 43B.
9. Incorrect addition to total income and TDS credit.
10. Levy of excess interest under Section 234C.
11. Initiation of penalty proceedings under Section 271(1)(c).
12. Transfer Pricing Officer's rejection of the transfer pricing study.
13. Non-consideration of certain incomes and expenses in computing operating margins.
14. Use of single-year margins for operating margins of comparable companies.
15. Jurisdictional error in making adjustments for purported brand development services.

Detailed Analysis:

1. Disallowance under Section 14A:
The petitioner contested the disallowance of ?93,44,170/- under Section 14A by the Assessing Officer (AO) using Rule 8D of the Income Tax Rules, 1962. The court did not delve into this issue as the writ petition was confined to transfer pricing adjustments.

2. Reduction of Subsidy and Disallowance of Depreciation:
The AO reduced the subsidy granted by SIPCOT from the cost of the asset, disallowing depreciation of ?2,38,665/-. This issue was not the focus of the writ petition.

3. Treatment of Export Incentives:
The AO treated export incentives under the Focus Market Scheme and Focus Product Scheme as income for the relevant assessment year. This was not the primary issue in the writ petition.

4. Disallowance of Additional Depreciation:
The AO disallowed additional depreciation of ?17,87,956/- for assets used in factories/workstations. This issue was not the main focus of the writ petition.

5. Disallowance of Provisions for Warranty:
The AO disallowed a provision for warranty amounting to ?2,26,17,00,000/-. This was not the primary issue in the writ petition.

6. Restriction of Depreciation:
The AO restricted depreciation on UPS, Scanners, and Printers at 15% instead of the claimed 60%, amounting to a difference of ?24,54,729/-. This issue was not the main focus of the writ petition.

7. Disallowance of Guarantee Charges:
The AO disallowed guarantee charges of ?1,40,40,660/- paid to the parent company, treating them as capital expenditure. This was not the primary issue in the writ petition.

8. Disallowance of Performance Reward:
The AO disallowed a performance reward of ?13,08,30,410/- under Section 43B. This issue was not the main focus of the writ petition.

9. Incorrect Addition to Total Income and TDS Credit:
The AO erred in adding ?35,92,42,476/- to the total income and in granting TDS credit. This was not the primary issue in the writ petition.

10. Levy of Excess Interest:
The AO levied excess interest under Section 234C. This was not the primary issue in the writ petition.

11. Initiation of Penalty Proceedings:
The initiation of penalty proceedings under Section 271(1)(c) was contested. This was not the primary issue in the writ petition.

12. Transfer Pricing Officer's Rejection of Study:
The Transfer Pricing Officer (TPO) rejected the transfer pricing study without cogent reasons and analyzed the domestic segment on a standalone basis. The petitioner argued that adjustments should be confined to international transactions per Rule 10B(e) of the Rules.

13. Non-Consideration of Certain Incomes and Expenses:
The TPO did not consider royalty income, government incentives, supplier discounts, and commission received as operating while computing operating margins. The petitioner argued that these should be included.

14. Use of Single-Year Margins:
The TPO used single-year margins for determining operating margins of comparable companies. The petitioner requested the use of multiple-year data.

15. Jurisdictional Error in Adjustments:
The TPO made adjustments towards fees for purported brand development services without establishing an international transaction. The petitioner argued that adjustments should be confined to international transactions.

Court's Analysis and Judgment:

Maintainability of Writ Petition:
The court first addressed the maintainability of the writ petition. It held that the petitioner has an effective alternative remedy of filing an appeal before the Income Tax Appellate Tribunal (ITAT) against the assessment order passed by the AO based on the DRP's directions. The court emphasized that the DRP's directions are binding on the AO and the assessment order would be an order giving effect to these directions.

Transfer Pricing Adjustments:
The court noted that the petitioner's challenge was confined to the enhancement made by the DRP, arguing that transfer pricing adjustments should be limited to international transactions. The court referred to various decisions, including those of the Bombay and Delhi High Courts and the ITAT, which supported the petitioner's contention that adjustments should be restricted to controlled transactions.

DRP's Jurisdiction:
The court observed that the DRP has the power to confirm, reduce, or enhance the variation proposed in the draft order under Section 144C(8). The DRP's directions were based on the factual matrix and the absence of specific data related to profits from international transactions. The court held that the DRP's directions must be given effect to by the AO, and the petitioner could challenge the assessment order before the ITAT.

Conclusion:
The writ petition was dismissed, with the court directing the AO to give effect to the DRP's directions and pass an assessment order. The petitioner was granted the liberty to challenge the assessment order before the ITAT. All contentions were left open for consideration in the appropriate forum.

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