2021 (6) TMI 172 - AT - Income Tax

Enhancing the income by invoking the provisions of section 10A - HELD THAT - As decided in own case 2020 (3) TMI 228 - ITAT PUNE AO has not proved that any arrangement had been arrived between the parties which resulted in higher profits. Consequently, the re-working of the profits by Assessing Officer by invoking section 10A r.w.s. 80- IA(10) of the Act is not justified. The action of the Assessing Officer to restrict the deduction u/s 10A as against the claim of assessee is hereby set-aside. Thus, assessee succeeds on this aspect. Disallowing the economic adjustment as bad debt - HELD THAT - As assessee claimed to have disallowed the expenditure in respect of provision for bad debt in the computation of total income for A.Y. 2005-06 and accordingly, the said provision should be treated, in our opinion as non-operating expenditure for the purpose of computing profitability under the transfer pricing provisions. Further, we note that d. CIT(A) held the bad debt is an operating expenditure but however observed exclusion of companies by the AO/TPO having bad debt for the purpose of comparability is not justified. Therefore, we agree with the finding of ld. CIT(A) to the extent of inclusion of comparable companies having bad debt in the final set of comparable companies. Therefore, in the facts and circumstances of the case considering the submissions of ld. AR and ld. DR, we deem it proper to remand the matter to the file of AO and accordingly, the AO/TPO is directed that the provision for bad debt should be treated as non-operating expenditure while computing the profitability of the assessee which has been disallowed as an expense while computing the income under the ITR. The ad-hoc bad debts filter as applied by the TPO liable to be rejected and to include the comparable companies having bad debt should be considered in the final set of comparables.

Summary

Issues Involved:
1. Enhancement of income by invoking the provisions of section 10A of the Income Tax Act.
2. Disallowance of economic adjustment as bad debt.
3. Computation of Arm's Length Margin using RPM vs. TNMM.

Detailed Analysis:

1. Enhancement of Income by Invoking the Provisions of Section 10A:

The assessee challenged the CIT(A)’s action of enhancing income by invoking section 10A(7) of the Income Tax Act. The CIT(A) argued that the assessee earned more than ordinary profit in Software Design Engineering Services and restricted the deduction under section 10A to ordinary profit. The Tribunal found that the CIT(A)’s enhancement was not warranted as the AO did not make any addition under section 10A(7). The Tribunal referenced its own decision in the assessee’s earlier case, where it was held that section 10A(7) aims to prevent abuse of tax concessions by manipulating profits between associated enterprises. The Tribunal emphasized that mere high profits do not justify invoking section 10A(7) unless there is evidence of an arrangement to abuse tax concessions. Consequently, the Tribunal set aside the CIT(A)’s order and allowed the assessee’s grounds on this issue.

2. Disallowance of Economic Adjustment as Bad Debt:

The assessee contested the treatment of bad debts and provision for bad debts as operating expenses for calculating profitability under transfer pricing provisions. The TPO and CIT(A) treated bad debts as operating expenses, but the assessee argued that provision for bad debts, disallowed in the computation of total income, should be treated as non-operating for transfer pricing purposes. The Tribunal agreed with the assessee, referencing the Pune ITAT judgment in Bilcare Limited, which held that costs disallowed in the return of income should be excluded from the cost base while computing PLI for transfer pricing. The Tribunal remanded the matter to the AO/TPO, directing that the provision for bad debts should be treated as non-operating expenditure and rejected the ad-hoc bad debts filter applied by the TPO.

3. Computation of Arm's Length Margin Using RPM vs. TNMM:

The Revenue’s appeal questioned the CIT(A)’s action in computing the Arm's Length Margin of the Total Security Solutions Business Segment using the Resale Price Method (RPM) instead of the Transactional Net Margin Method (TNMM). The Tribunal noted that in previous years, the assessee used RPM, and the Revenue used TNMM. In the current year, both the assessee and the TPO agreed on using TNMM. The Tribunal found that the issue raised by the Revenue did not arise from the CIT(A)’s order and dismissed the Revenue’s appeal as infructuous.

Conclusion:

The Tribunal allowed the assessee’s appeal partly for statistical purposes, setting aside the CIT(A)’s enhancement of income under section 10A and remanding the issue of bad debts treatment to the AO/TPO. The Revenue’s appeal was dismissed as infructuous.