2012 (5) TMI 165 - AT - Income Tax

Treatment of Communication Expenses under section 10A - Re-computation of Arm s Length Price - AO while framing the assessment u/s 143(3) computed the deduction under section 10A of the Act by reducing lease line charges from export turnover, but not from the total turnover. - held that - t if an item is excluded from the export turnover, the same should also be excluded from the total turnover to maintain parity between the numerator and denominator while calculating the deduction under section 10A of the Act. - matter remanded back to AO to recompute the deduction u/s 10A. TP - Re-computation of arms length price (ALP). - selection of comparable - held that - no opportunity of being heard was provided to the assessee for rebuttal, therefore the Assessing Officer was not justified in considering those comparables while working out the ALP in assessee s case. In that view of the matter, we deem it appropriate to set aside this issue back to the file of the Assessing Officer, to be adjudicated afresh in accordance with law, after providing due and reasonable opportunity of being heard to the assessee. - Matter remanded back. Adjustment where price variation falls within /- 5% range of arithmetical mean of the comparables. - held that - it appears that the benefit of /- 5% adjustment has not been given to the assessee for the reason (as mentioned by the TPO) that sales made by the assessee to third parties were higher in comparison to the rates of sale by AEs to the assessee. But nothing is brought on record to substantiate the aforesaid observations of the TPO. - Since the facts of the present case are similar to the facts involved in the aforesaid referred to case of Tatra Vectra Motors Ltd. 2012 (4) TMI 359 - ITAT BANGALORE , so respectfully following the said order, we direct the AO to allow the benefit of /- 5% to the assessee while computing the ALP.

Summary

Issues Involved:
1. Treatment of Communication Expenses under section 10A.
2. Re-computation of Arm's Length Price (ALP).

Issue-wise Detailed Analysis:

1. Treatment of Communication Expenses under section 10A:
The primary issue was whether communication expenses should be deducted from both the 'Total Turnover' and 'Export Turnover' for computing the deduction under section 10A of the Income-tax Act, 1961. The Assessing Officer (AO) had only reduced the communication expenses from the 'Export Turnover,' thereby reducing the deduction claim under section 10A. The appellant contended that these expenses should be reduced from both turnovers to maintain parity. The Tribunal referred to the Special Bench decision in the case of Sak Soft Ltd. and the Bombay High Court judgment in CIT v. Gem Plus Jewellery India Ltd., which supported the appellant's view. The Tribunal concluded that if an item is excluded from the export turnover, it should also be excluded from the total turnover to maintain parity. Consequently, the Tribunal directed the AO to reduce the lease line charges from both the export turnover and the total turnover.

2. Re-computation of Arm's Length Price (ALP):
The second issue involved the re-computation of ALP, which resulted in an addition of Rs. 98,20,024. The appellant raised several specific grounds challenging the AO and Transfer Pricing Officer (TPO)'s methodology and decisions. The appellant argued that the TPO erred in rejecting the appellant's transfer pricing documentation, using a fresh search for comparability analysis beyond the compliance date, disregarding the functional and risk profile, and adopting arbitrary filters. The TPO had selected 20 comparable companies and arrived at an adjusted arithmetic mean of 18.86%, leading to the proposed adjustment. The Tribunal noted that in a similar case, Insilica Semiconductors India (P.) Ltd. v. ITO, the issue had been remanded back to the AO/TPO for fresh adjudication. Following this precedent, the Tribunal remanded the issue back to the AO for fresh adjudication, ensuring due and reasonable opportunity for the appellant to be heard.

Additional Points:
- The Tribunal dismissed grounds 2(l) and 2(n) as not pressed.
- The appellant also argued for a standard deduction of 5% under the erstwhile proviso to section 92C(2) before making the transfer price adjustment. The Tribunal referred to the ITAT Bangalore's decision in Tatra Vectra Motors Ltd., which supported the appellant's claim. The Tribunal directed the AO to allow the benefit of +/- 5% to the appellant while computing the ALP.

Conclusion:
The Tribunal partly allowed the appeal for statistical purposes, directing the AO to re-compute the deduction under section 10A by reducing the communication expenses from both the export turnover and the total turnover and to re-adjudicate the ALP issue after providing a reasonable opportunity for the appellant to be heard. Additionally, the Tribunal directed the AO to allow the benefit of +/- 5% while computing the ALP.