2018 (10) TMI 419 - AT - Income Tax

TPA - treatment to be given to the provision for bad and doubtful debts for determining the operating margin - Held that - As Assessee has submitted that if the provision for bad and doubtful debts as reduced from the operating cost for the purpose of computing the operating margin of the assessee-company and arm s length price of the international transactions of the assessee-company with its Associated Enterprises is determined by applying the average operating profit margin of the comparables as selected by the TPO, the same would fall within the tolerance limit of 5% as compared to the price actually charged by the assessee-company to its AEs for the said international transactions, the benefit of which is being claimed in additional Ground No. 2. We accordingly direct the Assessing Officer/TPO to re-compute the difference between the arm s length price of the international transactions of the assessee company with its AEs as determined by them and the price charged by the assessee-company by taking its operating margin after excluding the provision for bad and doubtful debts and if the same is found within the tolerance limit of 5%, the Assessing Officer/TPO is directed to delete the addition made on account of transfer pricing adjustment. The additional Ground No. 2 of the assessee s appeal is accordingly allowed. Disallowance on account of employer s contribution to P.F. and Pension Fund and employees contribution to P.F. and Pension Fund - Held that - The same are squarely covered in favour of the assessee by the decision of the Hon ble Supreme Court in the case of CIT vs.- Alom s Extrusions Limited 2009 (11) TMI 27 - SUPREME COURT and CIT vs.- Vinay Cement Limited 2007 (3) TMI 346 - SUPREME COURT OF INDIA , wherein it was held that the employer s/employees contribution towards Provident Fund and Pension Fund paid before the due date of filing of the return of income for the relevant year cannot be disallowed under section 43B, even if it has been paid after the due date as per relevant Acts. Penalty u/s 271(1)(c) - addition on account of transfer pricing adjustment - Held that - Even the addition made on account of transfer pricing adjustment and disallowance of employees contribution towards Provident Fund, etc. as sustained by the ld. CIT(Appeals) are found to be not sustainable by us while disposing of the quantum appeals as held in the foregoing portion of this order. Consequently the penalty imposed under section 271(1)(c) in respect of the said addition is not sustainable and the impugned order of the ld. CIT(Appeals) cancelling the penalty imposed by the Assessing Officer is liable to be upheld on this ground also

Issues Involved:
1. Transfer Pricing Adjustment
2. Treatment of Provision for Bad and Doubtful Debts
3. Selection of Comparables
4. Use of Publicly Available Data
5. Use of Multiple Year Data
6. Use of +/- 5% Range
7. Disallowance on Account of Employer’s Contribution to P.F. and Pension Fund
8. Penalty under Section 271(1)(c)

Issue-Wise Detailed Analysis:

1. Transfer Pricing Adjustment:
The main issue in the cross appeals was the addition of ?7,42,23,000/- made by the Assessing Officer (AO) on account of transfer pricing adjustment, which was sustained by the CIT(A) to the extent of ?3,62,46,000/-. The assessee, a 100% subsidiary of Philips Medical Systems International BV, filed a return declaring a loss of ?1,50,41,144/-. The AO referred the matter to the Transfer Pricing Officer (TPO) under section 92CA(1) of the Income Tax Act, 1961. The TPO selected three additional comparables and recomputed the operating profit margin at 8.99%, leading to the transfer pricing adjustment. The CIT(A) modified this, selecting eight comparables and determining an average operating profit margin of 6.31%, reducing the adjustment to ?3,62,46,000/-.

2. Treatment of Provision for Bad and Doubtful Debts:
The AO treated a provision of ?4.13 crores for bad and doubtful debts as part of operating expenses. The assessee contended that this provision was related to debts from HSG business acquired in the previous year and should not be considered as operating expenses. The CIT(A) upheld the AO's view, stating that bad debts are a normal business expense. However, the Tribunal found merit in the assessee's argument, citing the decision in Marble India Pvt. Limited, and directed the AO/TPO to exclude the provision for bad debts from operating expenses.

3. Selection of Comparables:
The TPO rejected ten out of twelve comparables selected by the assessee and added three new comparables. The CIT(A) agreed with the rejection of seven comparables by the TPO but included three comparables initially rejected by the TPO. The Tribunal upheld the CIT(A)'s decision on the inclusion and exclusion of certain comparables.

4. Use of Publicly Available Data:
The assessee argued that the TPO should not use comparables whose data is not available in the public domain. The CIT(A) rejected this argument, stating that the restriction on using publicly available data applies only to auditors, not to the AO or TPO. The Tribunal upheld the CIT(A)'s view.

5. Use of Multiple Year Data:
The CIT(A) held that there is no useful purpose in considering data from earlier years. The Tribunal did not find it necessary to address this issue separately due to its decision on the provision for bad and doubtful debts.

6. Use of +/- 5% Range:
The CIT(A) did not grant the benefit of +/- 5% variance as per the proviso to section 92C(2) of the Act. The Tribunal directed the AO/TPO to re-compute the difference between the arm's length price and the price charged by the assessee, and if within the 5% tolerance limit, to delete the addition.

7. Disallowance on Account of Employer’s Contribution to P.F. and Pension Fund:
The CIT(A) disallowed the employer's contribution to P.F. and Pension Fund. The Tribunal, citing the Supreme Court decisions in CIT vs. Alom Extrusions Limited and CIT vs. Vinay Cement Limited, held that contributions paid before the due date of filing the return cannot be disallowed under section 43B, even if paid after the due date as per relevant Acts.

8. Penalty under Section 271(1)(c):
The CIT(A) cancelled the penalty imposed under section 271(1)(c) for transfer pricing adjustment and disallowance of employees' contribution towards Provident Fund, stating that the penalty proceedings are separate from quantum proceedings and the appellant acted in good faith and due diligence. The Tribunal upheld the CIT(A)'s order, noting that even the additions made were not sustainable.

Conclusion:
The assessee's appeal was allowed, and the revenue's appeals were dismissed. The Tribunal directed the AO/TPO to re-compute the operating margin excluding the provision for bad debts and determine if the arm's length price falls within the 5% tolerance limit, potentially deleting the transfer pricing adjustment. The penalty under section 271(1)(c) was also cancelled.

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