2013 (6) TMI 209 - AT - Income Tax

Disallowance on account of late deposit of contribution to EPF / ESI - disallowance has been made simply for the reason that the assessee did not deposit its contribution before the due date under the respective Act. Held that - The Hon'ble Supreme Court in the case of CIT vs. Alom Extrusions Limited 2009 (11) TMI 27 - SUPREME COURT has held that the amendment to first proviso and omission of the second proviso to section 43B by the Finance Act, 2003 is retrospective. The Hon'ble Delhi High Court in the case of CIT vs. Aimil Limited 2009 (12) TMI 38 - DELHI HIGH COURT has allowed deduction in respect of employees' share when the amount was paid before the due date under the Act. it becomes clear from the two judgments that both the employer's and employees' contribution are allowable as deduction if the amount of provident fund etc., though belatedly, but is paid before the due date of filing of return u/s 139(1) of the Act. Treatment of interest income as 'Income from other sources' against the Business income claimed by the assessee Held that - Tribunal in the assessee's own case for the immediately preceding assessment year has decided this issue in favour of the Revenue. Respectfully following the precedent, the interest income should be considered as falling under the head 'Income from other sources'. Claim of deduction u/s 10A - This ground has two parts. First part deals with the inclusion of Finder fees and Marketing fees in the total turnover. Revenue admitted that the Tribunal in its afore-noted order for the preceding year has decided this issue against the assessee. Respectfully following the precedent, we uphold the action of the AO in this regard. Second component is against the inclusion of expenditure incurred in foreign currency from the total turnover. Revenue submitted that the Tribunal has decided this issue in assessee's favour in the afore-quoted order. The learned Departmental Representative admitted the position stated on behalf of the assessee in this regard. Respectfully following the precedent this issue is held in favour of the assessee. Transfer Pricing adjustment to the value of international transactions- Determination of ALP in respect of international transactions being IT Enabled Services - Held that - After detailed discussion of that how the method employed by the assessee for determining the ALP in respect of international transactions for the year under consideration is contrary to the statutory provisions having no approval from any judicial forum. If such a wrong method has been inadvertently accepted by the TPO in an earlier year, license can t be given to assessee to continue calculating the ALP in such a grossly erroneous manner in perpetuity. It needs to be discontinued forthwith. Therefore, reject this contention advanced on behalf of the assessee that the application of such a wrong method be granted a seal of approval on the basis of its acceptance by the TPO in a preceding year.

Issues Involved:
1. Disallowance of Rs. 48,87,004 on account of late deposit of contribution to EPF/ESI.
2. Treatment of interest income of Rs. 11,11,771 as 'Income from other sources' against the Business income claimed by the assessee.
3. Claim of deduction u/s 10A.
4. Transfer Pricing (TP) adjustment of Rs. 1,46,75,307 to the value of international transactions.

Detailed Analysis:

1. Disallowance of Rs. 48,87,004 on account of late deposit of contribution to EPF/ESI:
The first ground of appeal concerns the disallowance of Rs. 48,87,004 due to the late deposit of contributions to the Employees' Provident Fund (EPF) and Employees' State Insurance (ESI). The disallowance was made because the assessee did not deposit its contribution before the due date under the respective Act. However, the amount was paid within the grace period or at best before the due date of filing the return of income u/s 139(1) of the Act. The Tribunal referred to the Supreme Court's decision in CIT vs. Alom Extrusions Limited and the Delhi High Court's decision in CIT vs. Aimil Limited, which held that both employer's and employees' contributions are allowable as deductions if paid before the due date of filing the return. Consequently, the disallowance was not justified, and this ground was allowed.

2. Treatment of interest income of Rs. 11,11,771 as 'Income from other sources':
The second ground pertains to the classification of interest income of Rs. 11,11,771 as 'Income from other sources' instead of Business income. The assessee conceded that the Tribunal had previously decided this issue in favor of the Revenue for the preceding assessment year. Respectfully following the precedent, the Tribunal upheld the treatment of the interest income as 'Income from other sources'. This ground was not allowed.

3. Claim of deduction u/s 10A:
The third ground involves the claim of deduction u/s 10A, which has two parts. The first part deals with the inclusion of Finder fees of Rs. 1.19 crore and Marketing fees of Rs. 29.12 lakh in the total turnover. The Tribunal had previously decided this issue against the assessee for the preceding year. Respectfully following the precedent, the Tribunal upheld the action of the Assessing Officer (AO) in this regard. The second part concerns the inclusion of expenditure incurred in foreign currency from the total turnover. The Tribunal had decided this issue in favor of the assessee in the preceding year, and the Departmental Representative admitted this position. Respectfully following the precedent, the Tribunal decided this issue in favor of the assessee. This ground was partly allowed.

4. Transfer Pricing (TP) adjustment of Rs. 1,46,75,307:
The last ground relates to the TP adjustment of Rs. 1,46,75,307 to the value of international transactions. The assessee is a parent company of M/s. Onward Technologies Inc. USA and M/s Onward Technologies GmbH, Germany, and reported several international transactions with its Associated Enterprises (AEs). The Transfer Pricing Officer (TPO) noted that the Operating income of the assessee was Rs. 66.25 crore with an operating profit of Rs. 0.24 crore, and selected twenty comparable cases giving an average of OP/TC at 20.68%. The assessee raised objections against the comparables chosen by the TPO, arguing that they were not functionally similar. The Tribunal found merit in the assessee's objections and noted that the TPO had not adequately addressed these objections. The Tribunal set aside the impugned order and restored the matter to the file of the AO/TPO to reconsider the comparability of the selected cases and determine the ALP afresh. The Tribunal emphasized the need to consider the correct figures of operating profit to total cost in respect of the IT Enabled Services segment alone and benchmark the other international transactions as per law. The assessee was granted the opportunity to present fresh evidence. This ground was remanded for fresh consideration.

Conclusion:
The appeal was partly allowed, with the Tribunal deciding in favor of the assessee on the first ground, partly allowing the third ground, and remanding the fourth ground for fresh consideration. The second ground was decided in favor of the Revenue.

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