2018 (8) TMI 656 - AT - Income Tax

Transfer pricing - Assessment u/s 144C r.w.s 143(3) - returned income of Rs. Nil after setting off of brought forward losses - adjustments twoards alleged difference in the arm s length price of the international transaction of provision of software development services - disregard to the internal benchmarking undertaken by the appellant. Held that - There is no dispute that the facts and circumstances in the present assessment year are similar to the facts and circumstances as obtaining in the preceding assessment years. The revenue has not placed before us any material so as to enable us to take a different view in the matter. In view of these facts and circumstances, respectfully following the order for earlier assessment years noted above, we restore this matter to the file of the AO/TPO with similar directions as have been given by the ITAT in the preceding assessment year Appeals of the assessee are allowed for statistical purposes.

Issues Involved:

1. Transfer Pricing Adjustment
2. Disallowance of Interest Expenses
3. Levying of Interest under Section 234B and 234C
4. Set-off of Brought Forward Losses

Issue-wise Detailed Analysis:

1. Transfer Pricing Adjustment:

The primary issue pertains to the adjustment of ?48,29,39,813 for AY 2012-13 and ?9,86,08,398 for AY 2013-14 made by the Assessing Officer (AO) on the basis of the Transfer Pricing Officer’s (TPO) order. The TPO rejected the internal benchmarking analysis conducted by the assessee using the Transactional Net Margin Method (TNMM) due to the absence of segmental accounts and the artificial creation of segmental accounts by the assessee. The Dispute Resolution Panel (DRP) upheld the TPO’s view, stating that internal comparability did not provide meaningful benchmarking.

The assessee argued that similar issues in previous years were resolved in their favor by higher authorities, including the Tribunal and the Hon’ble Delhi High Court, which accepted internal comparables over external ones. The Tribunal noted that the TPO/AO had previously accepted the internal TNMM method and that the Hon’ble Delhi High Court had affirmed this approach. Consequently, the Tribunal restored the matter to the AO/TPO for fresh adjudication, instructing them to follow the precedent set in earlier years and to determine the arm’s length price using internal comparables.

2. Disallowance of Interest Expenses:

For AY 2012-13, the AO disallowed ?1,20,16,720 as interest expenses, arguing that interest on short-term loans used for acquiring fixed assets should be capitalized. The assessee contended that the fixed assets were acquired from its own funds, and thus, no interest expenses should be capitalized. The Tribunal referred to its earlier decision for AY 2009-10, which directed the AO to ascertain the dates of borrowing and the asset’s put-to-use date to determine the interest to be capitalized. The Tribunal restored the matter to the AO/TPO for fresh adjudication based on these directions.

For AY 2013-14, a similar issue arose with a disallowance of ?4,18,226. The Tribunal followed the same rationale and restored the matter to the AO/TPO for fresh adjudication.

3. Levying of Interest under Section 234B and 234C:

The assessee argued that interest under Section 234B is consequential, and interest under Section 234C should be charged on the tax at returned income. The Tribunal agreed, stating that interest under Section 234B is indeed consequential, and interest under Section 234C should be charged on the tax at returned income. This issue was decided in favor of the assessee for both AY 2012-13 and AY 2013-14.

4. Set-off of Brought Forward Losses:

For AY 2013-14, the AO allowed the set-off of brought forward losses amounting to ?5,43,79,729 against the actual claimed losses of ?25,00,07,902. The Tribunal directed the AO/TPO to verify and decide the claim afresh in accordance with the law.

Conclusion:

The Tribunal allowed the appeals for statistical purposes, restoring the matters related to transfer pricing adjustments and disallowance of interest expenses to the AO/TPO for fresh adjudication. The issues concerning the levy of interest under Sections 234B and 234C were decided in favor of the assessee. The set-off of brought forward losses for AY 2013-14 was directed to be verified and decided afresh by the AO/TPO.

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