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2018 (3) TMI 299 - AT - Income TaxAdjustment made to export turnover on account of freight, telecommunication and insurance, on-site fees and marketing fees - Held that - Justification in excluding the above mentioned expenditure both from the export turnover as well as from the total turnover while calculating deduction under section 10A of the Act. Allowing deduction u/s. 10A - Held that - As decided in Black and Veatch Consulting Pvt. Ltd. 2012 (4) TMI 450 - BOMBAY HIGH COURT deduction under section 10A has to be given at the stage when the profits and gains of business are computed in the first instance. The Tribunal was right in holding that the deduction under section 10A in respect of the allowable unit under section 10A has to be allowed before setting off brought forwarded losses of a non-section 10A unit. Transfer pricing (TP)adjustments - comparable selection criteria - Held that - We find that the assessee in engaged in the business of software development, that it had adopted TNMM for benchmarking the IT s, thus companies functionally dissimilar with that of assessee need to be deselected from final list. Seven comparables have to treated as invalid comparables for the year under consideration, as stated earlier. We find that if the above referred seven comparables are not included in the final list, then the average margin of the assessee is within the range of ( /-)5%. Therefore, we hold that adjustment made by the TPO and confirmed by the FAA have to be deleted. - Decided in favour of the assessee.
Issues Involved:
1. Adjustment to export turnover on account of freight, telecommunication, insurance, on-site fees, and marketing fees. 2. Allowing the deduction under section 10A. 3. Transfer pricing adjustments. Issue-wise Detailed Analysis: 1. Adjustment to Export Turnover: The first ground of appeal raised by the Assessing Officer (AO) involved adjustments made to the export turnover on account of freight, telecommunication, insurance, on-site fees, and marketing fees. The AO reduced expenditures related to freight, telecommunication, and insurance for both the Bangalore and Chennai Exempt Units, as well as technical services provided outside India. The assessee contested this adjustment, and the First Appellate Authority (FAA) referred to the judgment in Tata Elxsi Ltd., directing the AO to exclude these items from the total turnover as well. The Tribunal upheld this decision, citing the need for uniformity between the numerator (export turnover) and the denominator (total turnover) in the formula used for computing exemptions under section 10A. The Tribunal dismissed the grounds raised by the AO, reinforcing the principle that expenses excluded from the export turnover should also be excluded from the total turnover to avoid anomalies or absurd results. 2. Allowing the Deduction under Section 10A: The next issue concerned the AO's adjustment of losses from the Bangalore Exim Unit and the Chennai Non-Exempt Unit against the exempt profits of the respective units. The assessee argued that there was no provision under sections 10A or 72 of the Income-tax Act for such adjustments. The FAA, referencing the case of IGate Global Solutions Ltd., directed the AO to compute the deduction under section 10A without adjusting these losses. The Tribunal upheld the FAA's decision, citing the case of Black and Veatch Consulting Pvt. Ltd., which clarified that deductions under section 10A should be given effect before setting off brought forward losses. The Tribunal dismissed the AO's grounds, affirming that the deduction under section 10A should be computed independently of the losses from non-exempt units. 3. Transfer Pricing Adjustments: The final issue pertained to transfer pricing adjustments. During the assessment proceedings, the AO referred the matter to the Transfer Pricing Officer (TPO) to determine the Arm's Length Price (ALP) of the international transactions (ITs) with the assessee's Associated Enterprises (AEs). The TPO rejected 42 of the 50 comparables selected by the assessee and added 8 new ones, resulting in an upward adjustment of ?10.91 crores. The FAA retained several comparables and directed the AO to provide adjustments based on the mean operating margin. The assessee contested the inclusion of certain comparables, arguing that they were functionally different. The Tribunal examined each contested comparable, referencing previous Tribunal decisions, and concluded that the seven comparables in question should be excluded. This exclusion brought the assessee within the safe zone of +/- 5% of the margin, leading to the deletion of the transfer pricing adjustment. The Tribunal allowed the assessee's appeal on this ground. Conclusion: The Tribunal dismissed the AO's appeal and allowed the assessee's appeal, affirming the FAA's decisions regarding the adjustments to export turnover, the computation of deductions under section 10A, and the exclusion of certain comparables in the transfer pricing adjustments. The judgment reinforced the principles of uniformity in turnover computations and the independence of section 10A deductions from non-exempt unit losses.
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