2020 (8) TMI 239 - AT - Income Tax

TP Adjustment - bench marking the transaction by adopting PLI of OP/VAE - economic rationale of using Operating Profit/ Value Added Expenses (,OP /V AE') as the Profit Level Indicator ('PLI'), and instead using Operating Profit/ Total Cost (,OP /TC') as the PLI - HELD THAT - DR made similar submission in A.Y. 2010-11 2019 (12) TMI 1258 - ITAT MUMBAI , which has been duly recorded and after considering the submission, the co-ordinate bench restored the matter to the file of AO/TPO for bench marking the transaction by adopting PLI of OP/VAE. So far as the ground related with the additional evidences are concerned we have noted that no new evidences were furnished by assessee before DRP. Moreover, ld DRP directed the TPO to verify the sample invoices to his satisfaction with regard to back to back third party charged as recorded in para 4.3.7.6 of the directions. Thus, considering the decision of co-ordinate bench of Tribunal and the order of the ld DRP, which is sound reasoning, we do not find any merit in the ground of appeal raised by revenue. Comparability - Om Logistics Ltd. - HELD THAT - Considering the decision of Tribunal for earlier year, when no material difference on facts with regards to segmental data, is brought to our notice for the year under consideration, thus, respectfully following the order of coordinate bench, we direct the Assessing Officer to exclude the Om Logistics Ltd. which has a significant asset base, thus being functionally different could not have been feasibly selected as a comparable for the purpose of determining the arm s length price of its international transactions for the year under consideration. Disallowance of depreciation on goodwill - HELD THAT - This issue as regards the entitlement of the assesses towards claim of depreciation on intangible (i.e goodwill) is squarely covered by the orders of the coordinate benches of the Tribunal in the assesses own case for A.Y. 2008-09, A.Y. 2009-10 and A.Y 2012-13. Accordingly, finding no reason to take a different view, we respectfully follow the view taken by the Tribunal as regards the entitlement of the assessee towards claim for depreciation on intangibles (i.e goodwill) during the year under consideration

Issues Involved:

1. Pass-through costs and back-to-back third-party charges.
2. Acceptance of additional evidence without providing an opportunity for the TPO to be heard.
3. Treatment of expenses under different transactions.
4. Onus of the assessee to show comparable companies' treatment of third-party costs as pass-through costs.
5. Exclusion of pass-through costs from the assessee's cost base.
6. Verification of pass-through costs claimed by the assessee.
7. Depreciation on goodwill and intangible assets.
8. Penalty proceedings under section 271(1)(C).

Detailed Analysis:

1. Pass-through Costs and Back-to-back Third-party Charges:
The revenue argued that the Dispute Resolution Panel (DRP) erred in directing to accept back-to-back third-party charges of ?115.19 Cr as pass-through costs. The TPO had accepted the recovery of customs duty as a pass-through cost but rejected other costs due to insufficient evidence. The DRP admitted the claim of the assessee regarding netting off or exclusion of back-to-back third-party charges from the cost base, subject to verification by the TPO. The Tribunal upheld the DRP's direction, finding that the costs related to services obtained from third parties did not involve any service element or risk from the assessee and thus should not be included in the total costs for determining profit margins.

2. Acceptance of Additional Evidence:
The revenue contended that the DRP accepted additional evidence from the assessee without providing an opportunity for the TPO to be heard, violating section 144C(11) of the Income Tax Act and principles of natural justice. The Tribunal noted that the DRP directed the TPO to verify the sample invoices to his satisfaction regarding the back-to-back third-party charges, thus finding no merit in the revenue's ground of appeal.

3. Treatment of Expenses Under Different Transactions:
The revenue argued that the DRP failed to address the TPO's finding that the same head of expense was treated differently in various transactions. The Tribunal found that the DRP's direction to exclude certain costs from the cost base was consistent with the Tribunal's earlier decision for the preceding assessment year, thus rejecting the revenue's contention.

4. Onus of the Assessee to Show Comparable Companies' Treatment:
The revenue claimed that the assessee failed to discharge its onus to show that comparable companies treated third-party costs as pass-through costs. The Tribunal upheld the DRP's direction, noting that the assessee provided sample invoices demonstrating the expenses recorded, subject to verification by the TPO.

5. Exclusion of Pass-through Costs from Assessee's Cost Base:
The revenue contended that there was no material on record to show the amount of pass-through costs incurred by comparable companies. The Tribunal upheld the DRP's exclusion of ?115.19 Cr from the assessee's cost base, consistent with the Tribunal's earlier decision for the preceding assessment year.

6. Verification of Pass-through Costs Claimed by the Assessee:
The revenue argued that the DRP erred in concluding that ?115.19 Cr was pass-through costs based on additional evidence. The Tribunal found that the DRP directed the TPO to verify the sample invoices to his satisfaction, thus rejecting the revenue's contention.

7. Depreciation on Goodwill and Intangible Assets:
The assessee appealed against the disallowance of depreciation on goodwill and intangible assets. The Tribunal noted that this issue was covered by its earlier decision in the assessee's own case for preceding years. The Tribunal directed the AO to allow depreciation on intangible assets, including goodwill, consistent with its earlier decisions.

8. Penalty Proceedings Under Section 271(1)(C):
The assessee argued that the AO erred in initiating penalty proceedings under section 271(1)(C) without appreciating that the assessee had neither concealed any particulars of its income nor furnished inaccurate particulars. The Tribunal did not specifically address this issue in the judgment provided.

Conclusion:
The Tribunal dismissed the revenue's appeal and allowed the assessee's appeal, directing the AO/TPO to recompute the adjustment in accordance with the Tribunal's directions. The Tribunal upheld the DRP's directions regarding the treatment of pass-through costs and depreciation on intangible assets, consistent with its earlier decisions in the assessee's own case for preceding years. The cross-objection filed by the assessee was dismissed as infructuous.

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