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2013 (10) TMI 414 - AT - Income TaxTransfer pricing - ALP - purchase of website for AE - depreciation on website - Held that - the assessee has capitalized the purchase price of the website and has not debited to the P&L A/c, therefore, the addition of the income as determined by the TPO was not called for. However, the disallowance of depreciation in this case is also not warranted. - As seen from the order of DRP, the DRP stated that valuer arrived at the cost of website at ₹ 5,38,31,832/-, as against the cost valued by the Valuer at ₹ 3,67,82,863/-. We are unable to understand from where the said price was taken up by the TPO/DRP. Be that as it may, the assessee has paid only the cost price to its AE and justified the same by providing a valuation report as external CUP. Nothing has been brought on record by the TPO or by the DRP to determine the ALP against the value shown by the assessee. - Since the said website was used in the business, there is no necessity for disallowing depreciation. Power of TPO to restrict the ALP at Nil - Market promotion expenses amounts to ₹ 53,88,834/- - Held that - Market promotion expenses are reimbursement of the expenses paid to third party for services rendered by them in marketing the website - TPO and DRP considered it as intra-group services and analysed the same on the benefit principle However, reimbursement of expenditure, the issue of benefit principle may not arise in this case - Both the TPO and DRP went on wrong consideration in determining the market promotion expenses at Nil, treating the transaction as intra-group service Reliance has been placed upon the judgment of Hon ble Delhi High Court in the case of CIT Vs. EKL Appliances Ltd 2012 (4) TMI 346 - DELHI HIGH COURT , wherein it has been held that TPO has no power to restrict the ALP at Nil, but is supposed to have determined the ALP of the international transaction as per the methods provided. The TPO has to examine the price paid by the assessee and determine the ALP under the provisions of Transfer Pricing and its Rules. It does not authorize the TPO to disallow any expenditure on the ground that it was not necessary or prudent for the assessee to have incurred the same nor on the reason that the assessee has not justified the benefit principle - Since TPO/DRP have not examined that this expenditure is only reimbursement of expenditure, directed the AO to examine the nature of expenditure and if the amount is only reimbursement paid through AE to third party for their services, AO to allow the expenditure as claimed after due verification - Examination of the expenditure/claim of reimbursement is restored to the file of the AO Decided in favor of Assessee.
Issues Involved:
1. Rejection of Comparable Uncontrolled Price (CUP) Method for determining Arm's Length Price (ALP) of the purchase of a web portal. 2. Disallowance of depreciation on the intangible asset (web portal). 3. Disallowance of market promotion expenses. 4. Levy of interest under Section 234B of the Income Tax Act. 5. Endorsement of AO/TPO's actions by the Dispute Resolution Panel (DRP). Detailed Analysis: 1. Rejection of CUP Method for Determining ALP: The Assessee challenged the AO/TPO's rejection of the Comparable Uncontrolled Price (CUP) Method as the Most Appropriate Method (MAM) for determining the Arm's Length Price (ALP) of the purchase of the web portal www.bharathstudent.com for Rs. 3,67,82,683/-. The TPO determined the ALP at 'Nil', disallowing the depreciation claimed on the intangible asset. The Assessee provided an independent valuation report from M/s Grant Thornton, which the TPO did not accept, citing improper valuation and unanswered questions. The DRP upheld the TPO's decision, stating that the major issues raised by the TPO were not addressed by the Assessee. 2. Disallowance of Depreciation on Intangible Asset: The Assessee capitalized the purchase price of the web portal and claimed depreciation. The DRP agreed with the TPO's determination of the ALP at 'Nil' and disallowed the depreciation. The Assessee argued that the web portal was purchased at a cost justified by an independent valuation report, and the TPO cannot determine the ALP at 'Nil'. The Tribunal found that the Assessee had provided sufficient evidence, including a valuation report and revenue generated from the web portal, and directed the AO to allow the depreciation as claimed. 3. Disallowance of Market Promotion Expenses: The Assessee claimed market promotion expenses of Rs. 53,88,834/- paid to its AE, Axill Europe Ltd., as reimbursement of expenses paid to third parties ComScore and Clicksor.com. The TPO determined the ALP at 'Nil', treating the transaction as intra-group services and applying the benefit principle. The DRP upheld this decision. The Tribunal noted that the expenses were reimbursements for services rendered by third parties and not intra-group services. Citing the Delhi High Court's decision in CIT Vs. EKL Appliances Ltd., the Tribunal held that the TPO cannot disallow expenses on the ground that they were not necessary or prudent. The Tribunal directed the AO to verify the nature of the expenses and allow them if they were indeed reimbursements. 4. Levy of Interest under Section 234B: The Assessee contested the levy of interest under Section 234B on additional income arising from the transfer pricing adjustment. The Tribunal did not provide a detailed analysis on this issue, as it was subsumed under the broader issues of transfer pricing adjustments. 5. Endorsement of AO/TPO's Actions by the DRP: The Assessee argued that the DRP merely endorsed the AO/TPO's actions without proper consideration of the Assessee's objections. The Tribunal found that the DRP's conclusions were not fully justified, particularly regarding the disallowance of depreciation and market promotion expenses. The Tribunal directed the AO to re-examine these issues based on the evidence provided by the Assessee. Conclusion: The Tribunal allowed the Assessee's appeal for statistical purposes, directing the AO to re-examine the nature of the expenses and the valuation of the web portal, and to allow the depreciation and market promotion expenses as claimed, subject to verification. The Tribunal emphasized that the TPO cannot disallow expenses or determine the ALP at 'Nil' without proper justification and evidence.
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