2018 (6) TMI 409 - AT - Income Tax

TPA - selection of inappropriate set of comparables and not rejecting inappropriate company considered as comparable - Held that - The assessee is engaged in manufacturing of material handling equipments thus companies functionally dissimilar with that of assessee need to be deselected from final list. Adjustment to the Profit Level Indicator of comparable for higher cost towards import of materials - Held that - In view of the issue being set aside by the Tribunal in assessee s own case in earlier years to determine the adjustment to the PLI on account of import duty, we find no merit in the ground of appeal No.2 raised by the Revenue and the same is dismissed Directions of DRP in not restricting TP adjustment to the international transactions with associated enterprises only pertaining to manufacturing and service activity - Held that - The issue stands covered by the order of Tribunal in Demag Cranes & Components (India) Pvt. Ltd. Vs. DCIT 2013 (12) TMI 243 - ITAT PUNE - Accordingly, we direct the Assessing Officer / TPO to restrict the adjustment, if any, on account of arm s length price of international transactions only to the extent of international transactions with associated enterprises.

Issues Involved:
1. Validity of the order under section 143(3) read with section 144C(13) of the Act.
2. Transfer pricing adjustment.
3. Selection of inappropriate set of comparables.
4. Treatment of exceptional rent expenses.
5. Use of contemporaneous and multiple year data.
6. Benefit of +/- 5% range.
7. Erroneous calculation of total assessed income.
8. Erroneous levy of interest under section 234B and 234C of the Act.
9. Initiation of penalty proceedings under section 271(1)(c) of the Act.
10. Aggregation approach for benchmarking international transactions.
11. Adjustment to the Profit Level Indicator for higher costs towards import of materials.

Detailed Analysis:

1. Validity of the order under section 143(3) read with section 144C(13) of the Act:
The assessee contended that the Assessing Officer erred in passing the order without giving effect to the directions of the Dispute Resolution Panel (DRP). However, grounds of appeal No.1 and 2 were not pressed by the assessee and hence, dismissed.

2. Transfer pricing adjustment:
The assessee challenged the transfer pricing adjustment of ?31,93,76,539 made to the total income. However, this ground was general in nature and thus dismissed.

3. Selection of inappropriate set of comparables:
The assessee was aggrieved by the inclusion of WMI Cranes Ltd. and exclusion of Brady & Morris Engineering Company Ltd. The Tribunal noted that WMI Cranes Ltd. had an extraordinary event of demerger and should be excluded. Brady & Morris Engineering Company Ltd. was functionally comparable, and the increase in turnover was not exceptional. The Tribunal directed the inclusion of Brady & Morris Engineering in the final list of comparables.

4. Treatment of exceptional rent expenses:
Ground of appeal No.5 was not pressed by the assessee and hence dismissed.

5. Use of contemporaneous and multiple year data:
Ground of appeal No.6 was not pressed by the assessee and hence dismissed.

6. Benefit of +/- 5% range:
The Tribunal noted that if the margins shown by the assessee are within the range of +/- 5% of mean margins of comparables, no adjustment on account of arm's length price is to be made.

7. Erroneous calculation of total assessed income:
Ground of appeal No.8 was not pressed by the assessee and hence dismissed.

8. Erroneous levy of interest under section 234B and 234C of the Act:
The ground was consequential and hence dismissed.

9. Initiation of penalty proceedings under section 271(1)(c) of the Act:
The issue was premature and hence dismissed.

10. Aggregation approach for benchmarking international transactions:
The Revenue contended that the DRP erred in allowing the aggregation of 'installation and commissioning/engineering services' with the manufacturing activity. The Tribunal found no merit in the Revenue's ground of appeal as similar views were taken in earlier assessment years.

11. Adjustment to the Profit Level Indicator for higher costs towards import of materials:
The DRP allowed adjustment to the Profit Level Indicator for higher costs towards import of materials, which was denied by the TPO. The Tribunal found no merit in the Revenue's ground of appeal as similar directions were given in earlier assessment years.

Cross Objections by the Assessee:
The assessee supported the DRP's order in including service income for computing the operating margin and granting adjustment for high costs on imports. The Tribunal allowed these grounds. Ground of objection No.2a was not pressed and dismissed. The Tribunal directed the Assessing Officer/TPO to restrict the adjustment to international transactions with associated enterprises only.

Conclusion:
The appeal of the assessee was partly allowed, the appeal of the Revenue was dismissed, and the Cross Objections of the assessee were partly allowed.

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