2018 (3) TMI 296 - AT - Income Tax

Non-consideration of the foreign exchange gains as operational income for the purpose of computing the PLI - Held that - We find that Hon ble Delhi High Court in the case of BC Management Services (P) Ltd., (supra), has held that the Safe Harbour Rules which were notified by the Revenue authorities came into force in 2013 and therefore not applicable to A.Y. 2011- 12. Before us, Revenue has not placed any contrary binding decision in its support. Thus TPO and DRP has erred in considering the foreign exchange gain to be as non-operational income by relying solely on Rule 10TA. We therefore set aside the order of TPO and direct that the foreign exchange gains to be considered as operational income for the purpose of computation of PLI. - Decided in favour of assessee

Summary

Issues:
1. Transfer pricing adjustment made by TPO and DRP.
2. Treatment of foreign exchange gains as operational income.
3. Ad-hoc disallowance of expenses.

Transfer Pricing Adjustment:
The appeal was filed by the assessee against the order passed under section 143(3) read with 144C(13) of the Income Tax Act for the assessment year 2012-13. The Transfer Pricing Officer (TPO) made an upward adjustment of ?5,47,53,550 after not accepting the bench marking of international transactions with Associated Enterprises. The Dispute Resolution Panel (DRP) gave certain directions, leading to a revised total income of ?6,40,56,250. The assessee raised various grounds challenging the additions made to the taxable income, specifically focusing on the transfer pricing adjustments. The grounds included objections to the reference made to the TPO, the computation of Arm's Length Price (ALP) for software development services, treatment of foreign exchange gains, selection of comparables, and other related issues.

Treatment of Foreign Exchange Gains:
The TPO considered foreign exchange gains of ?1,89,07,522 as non-operational income, leading to a reduction in the Profit Level Indicator (PLI) of the assessee. The assessee argued that these gains were directly related to its main business operations and should be included in computing the operating margin. The DRP upheld the TPO's decision, citing Rule 10TA of the Income Tax Rules to exclude foreign exchange gains from operating profits. However, the assessee contended that Rule 10TA, part of the Safe Harbour Rules, was not applicable for the assessment year 2012-13. The ITAT Pune, following a decision of the Delhi High Court, ruled in favor of the assessee, allowing the foreign exchange gains to be considered as operational income for PLI computation, thereby setting aside the TPO's order.

Ad-hoc Disallowance of Expenses:
The assessee also challenged the ad-hoc disallowance of ?4,00,000, representing 20% of Traveling & Hotel Expenses of Directors debited to the Profit & Loss account. However, due to the favorable decision on the treatment of foreign exchange gains, the ITAT Pune did not adjudicate on this issue, considering it academic in light of the main ground being decided in favor of the assessee.

Overall, the ITAT Pune allowed the appeal of the assessee, primarily due to the decision regarding the treatment of foreign exchange gains as operational income, which impacted the transfer pricing adjustments and rendered other grounds raised by the assessee academic.