2016 (6) TMI 1008 - AT - Income Tax

Transfer pricing adjustment - whether the services are actually rendered by the AE - Held that - As the condition of rendition of services should be satisfied by the assessee so as to allow the same as expenditure. In the present case, assessee-company had not produced any evidence in support of rendering of services before the TPO. It is only before us, by way of additional evidence, assessee-company has filed some material, in support of the actual services rendered by the AE. The CIT(A) had no occasion to examine this evidence as it was claimed that this evidence was filed for the first time before us . Therefore, the CIT(A), without examining the aspect of actual rendition of services by the AE in respect of IT services, had directed the allowance of expenditure. Therefore, in interests of justice, we restore this issue to the file of the AO for purposes of verification of this evidence and come to conclusion whether the services are actually rendered by the AE or not and direct the TPO/AO to bench mark the transaction of rendering of services of market management support services, after being satisfied himself that the services are actually rendered by the AE. On the principle of consistency, we hold that each assessment year is separate and distinct. The principles of res judicata have no application to income-tax assessment proceedings. Simply because in the preceding year, this expenditure came to be allowed without any probe or enquiry it does not preclude the AO from making the enquiries on these issues.

Issues Involved:
1. Determination of Arm's Length Price (ALP) for international transactions.
2. Assessment of administrative and business support service fees.
3. Proof of actual services rendered by the Associated Enterprise (AE).
4. Principle of consistency in tax assessments.

Detailed Analysis:

1. Determination of Arm's Length Price (ALP) for international transactions:
The case involves cross appeals filed by the assessee and the revenue against the order of the CIT(A)-LTU, Bangalore, for the assessment year 2005-06. The assessee, a company engaged in manufacturing and trading, reported several international transactions including import of raw materials, export of manufactured products, and provision of administrative and business support services by 3M Singapore. The Transfer Pricing Officer (TPO) accepted the Transactional Net Margin Method (TNMM) applied by the assessee for most transactions but contested the administrative business support service fee of ?6,08,67,243 paid to 3M Singapore, determining the ALP for these services at nil.

2. Assessment of administrative and business support service fees:
The TPO's assessment was based on the observation that the services did not result in tangible benefits, the profitability of the assessee declined, and there was no cost-benefit analysis. The TPO concluded that the ALP for the administrative business support service fee should be nil, leading to an adjustment of ?6,08,67,243. The CIT(A) partially agreed with the TPO, allowing expenses related to information technology services but disallowing other services due to insufficient evidence.

3. Proof of actual services rendered by the Associated Enterprise (AE):
The assessee provided a detailed note and evidence of services rendered by 3M Singapore, including information technology support, marketing and sales support, and laboratory and technical support services. The assessee argued that these services led to a significant growth in revenue and that similar expenses were allowed in previous years. The TPO, however, questioned the necessity and benefit of these services and found no conclusive evidence of their rendition. The Tribunal emphasized that while the necessity of incurring expenditure cannot be questioned by the TPO, the actual rendition of services must be conclusively proven by the assessee.

4. Principle of consistency in tax assessments:
The assessee argued for the application of the principle of consistency, citing that similar expenses were allowed in previous years. The Tribunal, however, held that each assessment year is separate and distinct, and the principle of res judicata does not apply to income-tax assessments. Therefore, the AO is not precluded from making inquiries in the current assessment year even if similar expenses were allowed in previous years without probe or inquiry.

Conclusion:
The Tribunal restored the issue to the AO for verification of evidence regarding the actual rendition of services by the AE. The AO/TPO was directed to benchmark the transaction of rendering services after satisfying themselves that the services were actually rendered by the AE. Both the appeals filed by the assessee and the revenue were partly allowed for statistical purposes. The Tribunal reiterated that the burden of proving that the expenditure was incurred wholly and exclusively for the purpose of business lies on the assessee, and the financial health of the assessee cannot be a criterion to judge the allowability of an expense.

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