2022 (2) TMI 70 - AT - Income Tax

Transfer pricing adjustment to CSD and ITes segment - HELD THAT - Both the parties agreed that there is no change in functional profile of the assessee and nature of transactions in the year under consideration as compared to AY 2013-14 therefore following the finding of the Tribunal 2021 (7) TMI 1308 - ITAT DELHI we set aside the finding of lower authorities and remit the matter back to the Learned AO/TPO for determining arm s-length price of international transaction of Contract Software Development services (CSD) and ITes in segregated manner complying the direction of the Tribunal in assessment year 2013-14. It is needless to mention that the assessee shall be afforded adequate opportunity of being heard. The grounds No. 3 to 3.9 of the appeal are accordingly allowed for statistical purposes. TP adjustment of interest on receivables - HELD THAT - The addition in dispute needs to be deleted. However we find that benchmarking of the main transaction has already been restored to the file of the learned AO/TPO therefore we restore this issue of benchmarking of interest on receivables also to the file of the Ld AO/TPO who shall follow the decision in the case of Kusum Healthcare Private Limited 2015 (4) TMI 180 - ITAT DELHI and ensure that if working capital adjustment has been allowed to the assessee no further addition is required for interest on outstanding receivables. The assessee shall be provided adequate opportunity of being heard on the issue in dispute. The ground Nos. 4 to 4.4 of the appeal are accordingly allowed for statistical purposes.

Issues Involved:
1. Enhancement of income by ?29,20,68,757 without appreciating the factual positions/submissions of the Appellant.
2. Enhancement of income by ?29,20,68,757 due to erroneous findings and conjectures by the Transfer Pricing Officer (TPO).
3. Enhancement of income by ?18,46,77,370 due to incorrect application of the arm’s length principle to Contract Software Development (CSD) services and Information Technology enabled services (ITeS).
4. Enhancement of income by ?10,73,91,387 by treating receivables outstanding beyond 60 days as deemed loans and charging notional interest.
5. Disregarding judicial pronouncements in India while making the transfer pricing adjustment.
6. Erroneous computation of interest under section 234A and 234B of the Act.
7. Initiation of penalty under section 271(1)(c) of the Act without recording any satisfaction.

Issue-wise Detailed Analysis:

1. Enhancement of income by ?29,20,68,757:
The Tribunal noted that the grounds No. 1 to 2.2 of the appeal are general in nature and did not require specific adjudication. The matter was directed against the final assessment order dated 31/03/2021, where the Learned Assessing Officer (AO) enhanced the income of the appellant following the directions of the Learned Dispute Resolution Panel (DRP).

2. Erroneous findings and conjectures by the TPO:
The Tribunal observed that the TPO's findings were based on erroneous assumptions and conjectures, leading to the enhancement of income. The appellant argued that the TPO failed to appreciate the submissions and made several factually incorrect and legally untenable observations.

3. Incorrect application of the arm’s length principle:
The Tribunal addressed the transfer pricing adjustment to the CSD and ITeS segment. The TPO rejected the appellant's segmentation and aggregated the CSD and ITeS segments, which the Tribunal found inappropriate. The Tribunal cited its own decision in the appellant's case for AY 2013-14, where it was held that CSD and ITeS segments should be benchmarked separately. The matter was remanded back to the AO/TPO to determine the arm’s length price of international transactions for CSD and ITeS separately, ensuring compliance with the Tribunal's direction in AY 2013-14.

4. Treating receivables as deemed loans and charging notional interest:
The Tribunal examined the adjustment of interest on receivables. The TPO classified trade receivables outstanding beyond 60 days as unsecured loans and charged notional interest. The Tribunal referred to its own decisions in the appellant's case for AY 2014-15 and AY 2015-16, where it was established that no adjustment is required if working capital adjustment has been allowed. The Tribunal remanded the issue back to the AO/TPO to ensure compliance with the Delhi High Court's decision in Kusum Healthcare Private Limited, directing that no further addition is required for interest on outstanding receivables if working capital adjustment has been allowed.

5. Disregarding judicial pronouncements:
The Tribunal acknowledged that the ground No. 5 is connected to the transfer pricing adjustment adjudicated above and did not require separate adjudication. The ground was dismissed as infructuous.

6. Erroneous computation of interest under section 234A and 234B:
The Tribunal noted that the ground No. 6 is consequential in nature and dismissed it as infructuous.

7. Initiation of penalty under section 271(1)(c):
The Tribunal found the ground No. 7 to be premature and dismissed it as infructuous.

Conclusion:
The Tribunal allowed the appeal for statistical purposes, remanding the matter back to the AO/TPO for fresh determination of the arm’s length price for CSD and ITeS segments and ensuring compliance with judicial precedents regarding interest on receivables. The appellant was to be provided adequate opportunity of being heard. The appeal was pronounced in the open court on 18th November 2021.

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