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2022 (5) TMI 1409 - AT - Income TaxTP Adjustment - Engineering services and Administrative Support services - TPO has rejected the segmental approach adopted by the assessee for benchmarking its international transactions pertaining to provision of outbound engineering services (which is only 0.79% of the total turnover of the assessee) - HELD THAT - As in the year of account the assessee availed the Engineering services and Administrative Support services from its AEs as per the service agreement dated 23.06.2006 entered into between the assessee and its AE for which the assessee incurred impugned expenditure. The expenditure has been incurred against invoices raised by the recipient AE which have also been examined during the course of transfer pricing proceedings. There is absolutely no doubt that the impugned expenditure has been incurred for the purposes of assessee s business carried on by the assessee and that it was commercially expedient as well. The objections raised by the Hon ble DRP have also been met by the assessee with cogent reasons given therefore. We, therefore, have no hesitation in holding that the impugned addition by way of transfer pricing adjustment is not called for. We direct the Ld. AO to delete the addition and modify the assessment. The assessee succeeds in its appeal.
Issues Involved:
1. Adjustment of arm’s length price (ALP) for intra-group services. 2. Adjustment of ALP for royalty payments. 3. Determination of expenses under section 37(1) of the Income Tax Act. 4. Examination of whether the services were actually received by the assessee. Detailed Analysis: 1. Adjustment of ALP for Intra-Group Services: The assessee, a private limited company engaged in hydro-power projects, filed its return of income for AY 2007-08. The AO, following the TPO's order, proposed an addition of Rs. 2,48,50,136/- for intra-group services. The DRP reduced this adjustment to Rs. 1,89,53,444/-, stating the assessee failed to discharge the onus of proving the necessity of these services. The intra-group services were divided into Rs. 1,46,21,403/- for engineering services and Rs. 43,32,041/- for administrative support services. The Tribunal, upon rehearing, found that the AO did not independently verify if these expenses were incurred for business purposes under section 37(1) and remanded the matter back to the AO. The High Court later directed the Tribunal to decide on the merits. 2. Adjustment of ALP for Royalty Payments: The DRP had initially directed that no addition should be made for royalty payments amounting to Rs. 2,73,89,807/-, as these were at ALP. This decision was not contested further and thus remained unaltered. 3. Determination of Expenses under Section 37(1): The Tribunal observed that the AO did not examine whether the payment of Rs. 1,89,53,444/- to the AE for services was an expenditure incurred for business purposes under section 37(1). The Tribunal highlighted that the TPO did not dispute the availing of services but questioned the ALP determination, which was outside the TPO's purview. The Tribunal cited various case laws emphasizing that it is the assessee's prerogative to decide business expenditures and that such decisions should be based on commercial expediency. 4. Examination of Whether Services Were Actually Received: The assessee provided detailed invoices and documentation to substantiate the receipt of engineering and administrative services from its AE. The TPO had noted the services but still concluded that the assessee failed to demonstrate actual receipt. The Tribunal found this contradictory and noted that the TPO should not determine whether services were received, as per the Delhi High Court's decision in CIT vs. Cushman and Wakefield (India) (P) Ltd. The Tribunal also referenced other judgments supporting that the Tribunal should decide on such matters without remanding them back to the AO. Conclusion: The Tribunal concluded that the assessee had indeed availed engineering and administrative services from its AE, and the related expenditure was incurred for business purposes and was commercially expedient. The objections raised by the DRP were addressed with cogent reasons, leading the Tribunal to direct the AO to delete the addition of Rs. 1,89,53,444/- and modify the assessment accordingly. The appeal of the assessee was allowed.
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