ABACUS DISTRIBUTION SYSTEMS (INDIA) P.LTD, MUMBAI V. DCIT 6(1), MUMBAI

ITA 1766/MUM/2015

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 0927 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 9 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-01-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: K
• Assessment Year: 2010-2011
• Appeal Filed On: 25-03-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: NITESH JOSHIAR
• Keywords: Depreciation; Transfer pricing; Rectification of order; International transaction; Additional evidence; Bad and doubtful debts
• Section: 37(1); 154; 92

Judgement Text

1766/M/15(10-11) 2183/M/15(10-11) 1 IN THE INCOME TAX APPELLATE TRIBUNAL K BENCH, MUM BAI , , , BEFORE S/SHRI RAJENDRA,ACCOUNTANT MEMBER AND AMARJI T SINGH,JUDICIAL MEMBER /.ITA NOS.1766 & 2183/MUM/2015, /ASSESSMENT YEAR: 2010-11 M/S.ABACUS DISTRIBUTION SYSTEMS (INDIA) PVT. LTD, URMI ESTATE, 14 TH FLOOR, 95, GANPATRAO KADAM MARG, LOWER PAREL (WEST),MUMBAI-400 013. PAN: AAACA4836H VS. THE DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE- 3(1),MUMBAI. ( /APPELLANT ) ( / RESPONDENT ) REVENUE BY : SHRI JAYANTKUMAR,SAURABH DESHPANDE-DR.S ASSESSEE BY : SHRI NITESH JOSHI-AR / DATE OF HEARING: 24/10/2017 / DATE OF PRONOUNCEMENT: 10/01/2018 , 1961 254 )1( ORDER U/S.254(1)OF THE INCOME-TAX ACT,1961(ACT). , -PER RAJENDRA,AM: CHALLENGING THE ORDER OF THE ASSESSING OFFICER(AO), DATED 30/01/2015,PASSED U/S.143(3) R.W.S 144C(1)OF THE ACT,THE ASSESSEE HAS FILED THE ONE OF THE APPEALS(ITA/1766/MUM/2015).ASSESSEE- COMPANY,ENGAGED IN THE BUSINESS OF MARKETING AND PR OMOTING ABACUS COMPUTER RESERVATIONS SOFTWARE,FILED ITS RETURN OF INCOME ON 30/09/2009, DECLARING NIL INCOME AND BOOK PROFIT OF RS.12.32 CRORES,U/S.115JB OF THE ACT.THE AO COMPLET ED THE ASSESSMENT,IN PURSUANCE OF THE DIRECTION OF THE DISPUTE RESOLUTION PANEL(DRP)-IV,M UMBAI,DATED 19/12/2014,DETERMINING ITS INCOME AT RS.27.17 CRORES. ON 07/03/2015,THE AO PASSED A RECTIFICATION ORDER U /S.154 OF THE ACT FOR THE YEAR UNDER APPEAL AND COMPUTED THE INCOME OF THE ASSESSEE AT RS.29.17 CRORES.SECOND APPEAL(ITA/2183/MUM/ 2015)HAS BEEN FILED AGAINST THE SAID RECTIFICATION ORDER.AS BOTH THE APPEALS ARE INTERLINKED,SO,WE ARE ADJUDICATING THEM TOGETHER. ITA/1766/MUM/2015: 2. FIRST EFFECTIVE GROUND OF APPEAL (GOA-2) IS ABOUT A DDITION MADE ON ACCOUNT OF MARKETING SERVICE FEE(MSF)AND EXPENSES ON INCENTIVES TO TRAVE L AGENTS.DURING THE ASSESSMENT PROCEEDINGS,THE AO FOUND THE ASSESSEE ENTERED INTO INTERNATIONAL TRANSACTIONS (IT.S)WITH ITS ASSOCIATED ENTERPRISES(AE.S).HE MADE A REFERENCE TO THE TRANSFER PRICING OFFICER(TPO) TO 1766/M/15(10-11) 2183/M/15(10-11) 2 DETERMINE THE ARMS LENGTH PRICE(ALP)OF THE IT.S.HE VIDE HIS ORDER DATED 29/01/2014,PROPOSED ADJUSTMENT OF RS.2.78 CRORES TO THE INCOME OF THE A SSESSEE.AFTER RECEIVING THE ORDER OF THE TPO,THE AO ISSUED A DRAFT ASSESSMENT ORDER TO THE A SSESSEE,WHO CHALLENGED IT BEFORE THE DRP. 2.1. DURING THE TP PROCEEDINGS,THE TPO OBSERVED THAT THE ASSESSEE HAS ENTERED INTO FOLLOWING IT.S WITH ITS AE: SN NATURE OF INTERNATIONAL TRANSACTION VALUE IN RS. METHOD USED 1 PROVISION OF MARKETING SERVICES 19,78,14,045 / - TNMM NOTE 2 MENTIONS THAT COMPANY HAS RECORDED A SUM OF RS.231,865,271/- AS MARKETING SERVICE FEE PURSUANT TO ADDENDUM ENTERED WITH THE HOLDING COMPANY ON 31ST DECEMBER 2009 FOR MARKETING AND PROMOTION OF ABACUS SYSTEMS FOR THE YEAR ENDED 31ST MARCH 2010. THE ASS ESSEE HAS BENCHMARKED IT BY AGGREGATING IT WITH PROVISION IF MARKETING SERVICES. TNMM 2 AVAILING OF INTEREST FREE ECB LOAN OF 14 . 57 CRORES RS.129,766,000/- NIL (INTEREST) 3 REIMBURSEMENT OF EXPENSES : SERVICE CHARGES OTHER EXPENSES FOREIGN TRAVEL 4,29,11,118/- 51,41,045/- 39,543/- CUP HE OBSERVED THAT THE ASSESSEE HAD EARNED MSF AND CO MMISSION INCOME OF RS.42.96 CRORES,THAT IT HAD COMPUTED THE MARGIN AS FOLLOW: PARTICULARS AMOUNT (RS) AMOUNT (RS) COMMISSION 197,814,045/ - MSF 231,865,271/ - ONLINE WEB CONNECT AND TRAIN ING FEES 14,634,213/ - GAIN ON FOREIGN EXCHANGE RATE FLUCTUATION 207,554,151/ - TOTAL INCOME 651,867,680/- EXPENDITURE LINE CHARGES 4,930,157/ - AIRFARE TRANSACTION CHARGES 42,941,118/ - ADMINISTRATIVE AND OTHER EXPENSES 335,339,118/ - LESS: PROVISION ON DOUBTFUL ADVANCE 3,366,287/ - PROVISION OF DOUBTFUL DEBTS 2,538,458/ - 329,434,373/ - DEPRECIATION 6,469,224/ - TOTAL OPERATING COST 383,774,872/- OPERATING MARGIN 268,092,808/ - BERRY RATIO (USED BY ASSESSEE) OP /OC COST (AS COMPUTED) 1.70 69.86% HE FOUND THAT ASSESSEE HAD SELECTED FOUR COMPARABLE S FOR BENCHMARKING THE IT.S. ENTERED IN TO BY IT,THAT IT HAD APPLIED ENTITY LEVEL TNMM FOR DETERM INE THE ALP OF MFS.HE DISCUSSED THE 1766/M/15(10-11) 2183/M/15(10-11) 3 BUSINESS MODEL OF THE ASSESSEE AND HELD THAT THERE WERE DEFECTS IN THE TP DOCUMENTATIONS FILED BEFORE HIM,THAT DATA USED FOR COMPUTING THE ALP AND THE INFORMATION SUPPLIED BY THE ASSESSEE WERE NOT RELIABLE AND CORRECT.INVOKING THE PROVISIO NS OF SECTION 92C(3)(C)OF THE ACT,HE REJECTED THE DOCUMENTS SUBMITTED BY THE ASSESSEE. 2.2. VIDE ORDER SHEET ENTRY DATED 06/08/2013, HE ISSUED A NOTICE TO THE ASSESSEE REQUIRING IT TO SHOW CAUSE AS TO WHY BENCHMARKING OF MARKETING SUPP ORT SERVICES SHOULD NOT BE MADE IN SIMILAR WAY AND YOULL THE SAME COMPARABLE IS USED IN ITS O WN CASE FOR THE ASSESSMENT YEAR 2009 10. THE ASSESSEE IN ITS LETTER DATED 19/08/2013 OBJECTE D FOR USE OF THE COMPARABLE SET OF THE EARLIER YEAR. HE OBSERVED THAT THE UPDATED MARGIN OF THE CO MPARABLE IS FOR THE PERIOD UNDER CONSIDERATION HAD BEEN ADAPTED FOR CALCULATION OF A DJUSTMENTS, THAT THE ASSESSEE HAD NOT BROUGHT UP ANY ADDITIONAL EVIDENCE TO PROVE THAT THE FRESH COMPARABILITY ON THE SAME SEARCH CRITERIA AS ADOPTED BY HIM IN THE EARLIER YEAR WOULD RESULT IN ADDITION/DELETION OF ANY PARTICULAR COMPARABLE, THAT THE COMPARABLE IS USED TO STEER WERE FUNCTIONA LLY COMPARABLE, THAT THE BASIS OF COMPILATION OF TP DOCUMENTS BY THE ASSESSEE WAS SAME AS HAD BEE N FOLLOWED IN PREVIOUS YEARS.VIDE LETTER DATED 16/01/2014 THE ASSESSEE WAS GIVEN ANOTHER SHO W CAUSE TO CONSIDER 10 NEW COMPARABLES, SELECTED BY THE TPO, ALONG WITH THE COMPARABLES SEL ECTED FOR LAST ASSESSMENT YEAR. AFTER CONSIDERING THE SUBMISSION OF THE ASSESSEE, THE AO SELECTED FOLLOWING COMPARABLES FOR MARKETING SUPPORT SERVICES/COMMISSION AGENCY: SR.NO. NAME OF THE COMPANY MARGIN (%)PBIT /COST 1. APITCO LTD. 43.44% 2. BEST MULYANKAYAN CONSULTANTS LTD. 11.81% 3. CHOKSI LABORATORIES LTD. 22.07% 4. GENINS INDIA TRIBUNAL PA LTD. 21.81% 5. ICRA MANAGEMENT CONSULTING SERVICES LTD. 5.97% 6. RITES LTD. 24 .54% 7. TECHNICOM - CHEMIE (INDIA) LTD. 32.42% 8. WAPCOS LTD.(SEG.) 9.98% 9. ACCENTIA TECHNOLOGIES LTD. 42.97% 10. VISHAL INFORMATION TECHNOLOGIES LTD. 38.34% GRAND AVERAGE 23.03% THE TPO REWORKED THE MARGIN (OP/OC) OF THE ASSESSEE AS UNDER : PARTICULARS AMOUNT (RS.) AMOUNT(RS.) COMMISSION 197,814,045/ - MARKETING SERVICE FEE 231,865,271/ - ONLINE WEB CONNECT AND TRAINING FEE 14, 634,213/ - TOTAL INCOME 444,313,529/ - 1766/M/15(10-11) 2183/M/15(10-11) 4 EXPENDITURE LINE C HARGES 4,930,157/ - AIRFARE TRANSACTION CHARGES 42,941,11 8/ - ADMINISTRATIVE AND OTHER EXPENSES 335,339,118/ - LESS: PROVISION OF DOUBTFUL ADVANCE 3,366,287/ - PROVISION OF DOUBTFUL DEBTS 2,538,458/ - 329,434,373/ - DEPRECIATION 6,469,224/ - TOTAL OPERATING COST 383,774,872/ - OPERATING MARGIN 60,538 ,657/ - OPERATING PROFIT/OPERATING COST (AS COMPUTED) 15.77% HE FURTHER OBSERVED THAT THE ARMS LENGTH MARGIN FO R RENDERING MSS WAS AT 21.42%, THAT THE MARGIN SHOWN BY THE ASSESSEE WAS AT 15.77% (OP/OC). HE WORKED OUT THE ADJUSTMENT FOR THE IT.S, ENTERED INTO BY THE ASSESSEE FOR THE YEAR UND ER CONSIDERATION, AS UNDER: PARTICULARS AMOUNT(RS.) INCOME 444,313,529/ - TOTAL OPERATING COST 383,774,872/ - OPERATING MARGIN 60,538,657/ - OPERATING PROFIT/OPERATING COST 15.77% ARMS - LENGTH MARGIN 23.03% ARMS LENGTH INCOME 472,158,225/ - TRANSFER PRIC E 444,313,529/ - TRANSFER PRICING ADJUSTMENT 27,844,696/ - 2.3. AGGRIEVED BY THE DRAFT ORDER ISSUED BY THE AO IN PU RSUANCE OF THE ORDER OF THE TPO,THE ASSESSEE FILED OBJECTIONS BEFORE THE DRP AND MADE E LABORATE SUBMISSIONS. AFTER CONSIDERING THE AVAILABLE MATERIAL, HELD THAT THE ASSESSEE PERFORME D MARKETING ACTIVITIES, THAT IT FORMULATED MARKETING STRATEGIES, TRASHING SCHEDULE FOR EQUIPME NTS, THAT IT INTRODUCED COMPETITIVE INCENTIVE SCHEMES, THAT IT ALSO INTRODUCED SOFTWARE PACKAGES CAPABLE OF EXISTING INDEPENDENTLY OF THE ABACUS SYSTEM, THAT THE ASSESSEE NOT ONLY PROVIDED MARKETING SERVICES BUT ALSO PROVIDED CONSULTANCY AS WELL AS IMPLEMENTS/SUPPORTS, THAT TH E TPO HAD RIGHTLY REJECTED THE COMPARABLES SELECTED BY THE ASSESSEE, THAT IT WAS NOT A MERE CO MMISSION AGENT/BUSINESS AGENT, THAT OUT OF 10 COMPARABLE SELECTED BY THE TPO EIGHT COMPARABLES WE RE ENGAGED IN THE PROVISION OF MARKETING/ PROMOTION/ CONSULTANCY/ VARIOUS SUPPORT SERVICES, T HAT THEY WERE FUNCTIONALLY COMPARABLE, THAT WHILE SELECTING COMPARABLE FOR BENCHMARKING THE A L P THE BUSINESS MODEL OF THE COMPARABLE ENTITIES COULD ONLY BE BROADLY SIMILAR WITH THAT OF THE TESTED PARTY, THAT THERE WAS NO REASON TO INTERFERE WITH THE SELECTION OF THE FIRST EIGHT COM PARABLES, AS LISTED BY THE TPO. WITH REGARD TO ACCENTIA TECHNOLOGIES LTD. AND VISHAL INFORMATION T ECHNOLOGIES LTD.,THE DRP OBSERVED THAT THE 1766/M/15(10-11) 2183/M/15(10-11) 5 SERVICES PROVIDED BY THEM WERE IN THE FIELD OF BUSI NESS PROCESS OUTSOURCING. IT DIRECTED THE AO/ TPO TO EXCLUDE BOTH THE COMPARABLES FROM THE FINAL LIST OF THE COMPARABLES AND FURTHER OBSERVED THAT THE TPO HAD RIGHTLY USED THE UPDATED MARGINS T HAT THE DATA USED BY TPO PERTAINED TO THE RELEVANT AY.ITSELF AND WAS CONTEMPORANEOUS,THAT FOR USING MULTIYEAR DATA NO CO NVINCING ARGUMENT WAS ADVANCED,THAT THE TPO WAS CORRECT IN R EJECTING THE ECONOMIC ANALYSIS CARRIED OUT BY THE ASSESSEE AND WAS CORRECT IN BENCHMARKING AFR ESH,THAT THAT MERELY BECAUSE THE PROFIT MARGIN OF THE COMPARABLE COMPANIES WAS HIGH WOULD N OT MAKE THEM UNACCEPTABLE UNLESS IT IS SHOWN THAT ABNORMAL FACTORS HAD AFFECTED THE MARGIN S OF THOSE COMPANIES,THAT IT WAS ALSO REQUIRED TO BE SHOWN AS TO HOW AND TO WHAT EXTENT T HE PROFIT MARGINS WERE AFFECTED BY ABNORMALITIES,THAT HIGH OR LOW PROFITABILITY,PER SE ,COULD NOT BE A REASON FOR REJECTING OTHERWISE COMPARABLE COMPANIES. WITH REGARD TO ADDITION OF RS.2 CRORES UNDER THE H EAD INCENTIVE PAID TO TRAVEL AGENTS, IS THE DRP HELD THE ASSESSEE HAD CLAIMED RS. 23.66 CRORE AS PA YMENT OF DEALER INCENTIVE, THAT AGAINST THE SAME HAD IT HAD CLAIMED RECEIPTS OF RS. 23.18 CRORE AS ADDITIONAL MARKETING SERVICE FEE FROM ITS PARENT COMPANY, THAT THE SAID FIGURE INCLUDED AMOUN TS PERTAINING TO THE PERIOD 01/01/2009 TO 31/12/2009, THAT THERE WAS ALREADY AN AGREEMENT DAT ED 06/06/1996 WITH THE DEALERS PRIOR TO ENTERING INTO AN AGREEMENT ON 31/12/2009, THAT THE RIGHT TO RECEIVE ITS FEES FOR COMPENSATION DID NOT ARISE ON 29/09/2009 OR 31/12/2009, THAT IT WOUL D ARISE WHEN THE ASSESSEE WOULD DECIDE TO GIVE INCENTIVE TO THE DEALERS, THAT THERE WAS NO IN FIRMITY IN THE ACTION OF THE TPO/AO IN BRINGING THE SAID SUM TO TAX ON THE GROUND THAT THE RECEIPT HAD ALREADY ACCRUED TO THE ASSESSEE. 2.4. WE FIND THAT THE ASSESSEE HAD ENTERED INTO IT.S WIT H ITS AE LOCATED AT SINGAPORE, THAT THE TRANSACTIONS BROADLY FELL INTO TWO CATEGORIES NAMEL Y PROVISION OF MARKETING SERVICES AND ARE WILLING OF INTEREST-FREE LOAN, THAT IT HAD USED MUL TIPLE YEAR.AND HAD ADOPTED TNMM AS MOST APPROPRIATE METHOD, THAT IT APPLIED THE BERRY RATIO (RATIO OF NET OPERATING PROFIT TO THE OPERATING COSTS) IS THE PROFIT LEVEL INDEX, THAT IT HAD SELEC TED FOR COMPARABLES TO DETERMINE A LP OF THE TRANSACTIONS, THAT THE TPO REJECTED THE TRANSFER PR ICING STUDY CARRIED OUT PER THE ASSESSEE, THAT HE SELECTED A FINAL SET OF 10 COMPARABLES,THAT OUT OF THE 10 EIGHT WERE FROM THE LAST YEARS COMPARABLES, THAT HE ADAPTED OPERATIONAL PROFIT/OPE RATIONAL COST AS PLI, THAT WHILE CALCULATING THE PLI, HE EXCLUDED FOREIGN EXCHANGE GAIN ON THE GROUN D THAT IT WAS NOT AN OPERATING INCOME, HE ALSO REWORKED THE MARGINS (OP/OC) OF THE ASSESSEE A ND ARRIVED AT THE MARGIN OF 15.77% ,THAT MARGIN OF THE COMPARABLES SELECTED BY THE TPO WAS 2 3.03% AS AGAINST THE MARGIN OF THE 1766/M/15(10-11) 2183/M/15(10-11) 6 ASSESSEE OF 15.77%. 2.5. WE FURTHER FIND THAT WHILE DECIDING THE APPEAL FILE D BY THE ASSESSEE (1402/MUM/2013,AY. 2009-10,DTD.03.12.2018 ) , THE TRIBUNAL HAD DEALT WITH THE SIMILAR ISSUE,THAT IT HAD HELD THAT ALL THE EIGHT COMPARABLES APPEARING IN THE FINAL LIST OF CO MPARABLE WERE NOT VALID COMPARABLES AND HAD ALLOWED THE APPEAL OF THE ASSESSEE AS UNDER: 3.. THE TPO HELD THAT THE ALP COMPUTED BY THE ASSESSEE WAS NOT RELIABLE.HE THEREFORE INVOKE THE PROVISION OF SECTION 92C(3).VIDE ORDER S HEET ENTRY,DATED 21/11/2012,HE ISSUED A SHOW CAUSE TO THE ASSESSEE REJECTING THE TP DOCUMENTATIO N AND GIVING IT A SET OF 13 COMPARABLES TO BE CONSIDER FOR BENCHMARKING PURPOSES.AFTER CONSIDERIN G THE OBJECTIONS OF THE ASSESSEE,HE SELECTED EIGHT COMPARABLES IN THE FINAL LIST OF COMPARABLES NAMELY -APTICO LTD. (AL),CHOKSI LABORATORIES LTD.(CLL),GENINS INDIA TPA LTD.(GITL),RITES LTD.(RI TES)WAPCOS LTD.(WL),BEST MULYANKAYAN CONSULTANTS LTD.(BMCL),ICRA MANAGEMENT CONSULTING S ERVICES LTD.(ICRA-M) AND TECHNICOM- CHEMIE(INDIA)LTD.(TCIL). XXXXX 3.4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL BEFORE US.WE FIND THAT THE ASSESSEE IS A WHOLLY OWN ENTITY OF SINGAPORE BASE P ARENT COMPANY,THAT THE AE WAS PROVIDING CRS FOR AIRLINE TICKET BOOKINGS, THAT CRS WAS BEING USED BY THE TRAVEL AGENTS FOR BOOKING OF AIR TICKETS,THAT THE MAIN SOURCE OF INCOME OF THE AE WA S THE COMMISSION RECEIVED BY IT FROM AIRLINE COMPANIES WHOSE TICKETS WERE BOOKED USING THE CRS, THAT THE AE HAD APPOINTED ASSESSEE AS ITS NATIONAL MARKETING COMPANY IN INDIA FOR PROMOTING U SE OF ITS CRS AMONG THE TRAVELS AGENTS IN INDIA,THAT IT WOULD RECEIVE 25% OF THE REVENUE GENE RATED BY THE AE IN RESPECT OF AIRLINE-TICKETS BOOKED FROM INDIA,AS COMMISSION FEE, THAT THE ASSES SEE HAD ALSO EARNED MARKETING SERVICES FEE FROM THE AE,THAT TP ADJUSTMENT WERE MADE FOR THE FI RST TIME IN THE A.Y.2007-08,THAT IT HAD SELECTED SIX COMPARABLES,THAT THE TPO REJECTED THE ALL OF THEM,THAT HE IDENTIFIED NEW EIGHT COMPARABLES,THAT THE DRP UPHELD ALL THE COMPARABLES SELECTED BY HIM,THAT THE ASSESSEE HAD ADOPTED THE PLI AS BERRY RATIO BEING EBIT/OPERATING COST X 100, THAT THE TPO HAD CHANGED THE PLI TO OPERATING PROFIT /OPERATING COST (OP/OC),THA T THE TPO DETERMINED THE ASSESSEES OP TO COST AT 5.87% AS AGAINST AVERAGE OPERATING TO COST EARNED BY THE COMPARABLES OF 20.34 %, THAT FOR REJECTING THE ASSESSEE TP STUDY THE TPO HAD REF ERRED TO THE SUB-DISTRIBUTION AGREEMENT,THAT HE HAD CONCLUDED THAT IT WAS PROVIDING COMPLETE MSS ,THAT HE FURTHER HELD THAT THE AE HAD ENGAGED THE ASSESSEE TO PROMOTE THE CRS AMONG THE T RAVEL AGENTS OF INDIA, THAT WHEN THE ASSESSEE FORMULATED THE MARKETING STRATEGY,IT WAS E FFECTIVELY CARRYING ON ITS OWN BUSINESS AND NOT RENDERING ANY SERVICE TO THE AE,THAT THE DRP APPROV ED THE UPWARD ADJUSTMENT PROPOSED BY THE TPO/AO. 3.4 .NOW,WE WOULD LIKE TO DISCUSS THE COMPARABLES WHICH HAVE BEEN CONTESTED BEFORE US.AS PER THE ANNUAL REPORT OF AL ,IT DERIVES ITS REVENUE FROM VARIOUS SOURCES,THAT D URING THE YEAR IT HAD RECORDED TOTAL REVENUE OF RS. 1 145.71 LAKHS FROM M AJOR 10 SEGMENTS NAMELY SKILL DEVELOPMENT (RS.322.59 LAKHS),TOURISM AND RESEARCH STUDIES(RS.2 07.44 LAKHS),PROJECT RELATED SERVICES(RS.180. 06 LAKHS),MICRO-ENTERPRISES DEVELOPMENT(RS.117.83 L AKHS),CLUSTER DEVELOPMENT(RS.97.14 LAKHS), ASSET RECONSTRUCTION AND MANAGEMENT SERVICES(RS.78. 03 LAKHS),ENERGY-RELATED SERVICES (RS. 50.87 LAKHS),ENTREPRENEURSHIP DEVELOPMENT AND TRAINING(RS .30.78LAKHS),ENVIRONMENT MANAGEMENT (RS. 10 LAKHS),INFRASTRUCTURE PLANNING AND DEVELOPMENT ( RS.7.99 LAKHS).CONSIDERING THE PROFILE OF AL,WE ARE OF THE OPINION THAT IT HAS TO BE REJECTED FROM THE LIST OF VALID COMPARABLES. AS PER THE WEBSITE MAINTAINED BY CLL .IT IS A LEADING ANALYSIS AND RESEARCH GROUP PROVID ING COMPLETE SOLUTION FOR IMPROVING QUALITY IN PROCESS, PRODUCTS AND SERVICES,THAT IT PROVIDES CONTRACT LABORATORY SERVICES INCLUDING PHARMACEUTICAL ANALYS IS,FOOD AND BEVERAGES ANALYSIS,WATER 1766/M/15(10-11) 2183/M/15(10-11) 7 ANALYSIS,CONSTRUCTION MATERIAL ANALYSIS, ENVIRONMEN T MANAGEMENT SERVICES, CLINICAL RESEARCH AND CONSULTANCY.IT IS ALSO ENGAGED IN TESTING OF VARIOU S PRODUCTS AND OFFER SERVICES IN THE FIELD OF POLLUTION CONTROL AS PER THE PROFILE OF THE COMPANY .REFERRING TO SEGMENTAL REPORTING, IT HAS BEEN MENTIONED THAT IT TREATS ANALYTICAL CHARGES AND CON SULTANCY RECEIPTS AS A SINGLE SEGMENT, THAT DETAILS OF SEGMENTS WERE NOT SEPARATELY REPORTED,TH AT IT IS MANAGED ORGANISATIONALLY AS A UNIFIED ENTITY WITH VARIOUS FUNCTIONAL HEADS REPORTING TO T HE TOP MANAGEMENT AND IS NOT ORGANISED ALONG SEGMENTS.IN OUR OPINION,CLL IS FUNCTIONALLY DIFFERE NT AND HENCE IS TO BE REJECTED AS A VALID COMPARABLE. WE FIND THAT GITL PROVIDES THIRD PARTY ADMINISTRATIVE SERVICES IN TH E FIELD OF HEALTH INSURANCE INCLUDING RECEIVING OF INSURANCE CLAIM.AN ANALYSIS OF THE FINANCIAL STATEMENTS OF THE COMPANY REVEALED THAT REVENUE IS RECOGNISED AS AND WHEN MED ICARE POLICY IS ISSUED BY GENERAL INSURANCE COMPANIES IN FAVOUR OF THE POLICYHOLDERS.WE ARE OF THE OPINION THAT GITL IS FUNCTIONALLY DISSIMILAR FROM THE ASSESSEE AND HAS TO BE EXCLUDED FROM THE LIST OF THE COMPARABLES. AS PER THE ANNUAL REPORT OF RITES (SYSTEM INTEGRATION AND SUPPORT SERVICE SEGMENT)HA S BUSINESS OPERATION IN FOR DISTINCT FIELDS NAMELY CONSULTANCY IN TRANSPORTATION INFRASTRUCTURE SECTION, CONSTRUCTION ACTIVITIES,EXPORT AND LEASING OF RAILW AY EQUIPMENTS AND RUNNING RAILWAY SYSTEM ON CONCESSION, THE CONSULTANCY BUSINESS IS MAINLY IN T RANSPORT INFRASTRUCTURE SECTOR I.E. RAILWAYS, HIGHWAYS,AIRPORTS,PORTS,ROADS,URBAN TRANSPORT, INLA ND WATERWAYS, THAT IT HAD STARTED CONSTRUCTION ACTIVITIES FROM THE YEAR UNDER REVIEW, THAT IT HAD STARTED LEASING BUSINESS IN RAILWAY SECTOR IN MID-1990,THAT CONSULTING SERVICES ACCOUNT ED FOR 75% OF THE TOTAL OPERATING INCOME FOR THE YEAR UNDER CONSIDERATION,THAT EXPORT SALES ACCO UNTED FOR 12% OF THE INCOME. THE ANNUAL REPORT PROVES THAT THE MAIN SOURCE OF INCOME FOR TH E YEAR UNDER CONSIDERATION WAS CONSULTANCY FEE. IN OUR OPINION, THE ASSESSEES IS JUSTIFIED IN ARGUING THAT RITES SHOULD BE EXCLUDED FROM THE LIST OF COMPARABLES. WL ,AS PER THE WEBSITE OF THE COMPANY IS A MINI RATNA AND ISO 9001: 2008ACCRETED PUBLIC SECTOR ENTERPRISES UNDER THE AEGIS OF UNION MINISTR Y OF WATER RESOURCES, THAT IT PROVIDES CONSULTANCY SERVICES IN ALL FACETS OF WATER RESOURC ES, POWER AND INFRASTRUCTURE SECTOR IN INDIA AND ABROAD. AS PER THE ANNUAL REPORT INCOME UNDER THE H EAD CONSULTANCY AND TRAINING PROJECT AND LUMP SUM TURNKEY PROJECTS WAS RS. 10644. 78 LAKHS A ND RS. 9 862.5 LAKHS RESPECTIVELY FOR THE YEAR UNDER CONSIDERATION.IT CAN SAFELY BE HELD THAT WL IS BASICALLY ENGAGED INTO PROJECT ENGINEER -ING CONSULTANCY AND THEREFORE NOT COMPARABLE TO TH E FUNCTIONAL PROFILE OF THE ASSESSEE. HERE WE WOULD LIKE TO MENTION THAT RITES AND WL HAVE NOT BE EN EXCLUDED BY US FROM THE LIST OF VALID COMPARABLES BECAUSE THEY ARE GOVERNMENT UNDERTAKING S.WE HAVE COMPARED THE FUNCTIONAL PROFILE OF THE ASSESSEE AND THESE TWO COMPARABLES.WE FIND T HAT THERE IS NO SIMILARITY BETWEEN THE FUNCTIONS PERFORMED BY THE ASSESSEE AND THESE TWO E NTITIES. WE ALSO FIND THAT IN CEINA INDIA PRIVATE LIMITED,TH E TRIBUNAL HAD HELD THAT IT WAS FUNCTIONAL-LY DISSIMILAR TO A COMPANY PROVIDING MSS.IN THE CASE O F AVAYA INDIA PRIVATE LIMITED(ITA/ 146/DEL/2013,DATED17/06/2016),THE TRIBUNAL HAD HELD THAT AL WAS NOT A VALID COMPARABLE FOR DETERMINING THE ALP FOR MSS,THAT SIMILAR CONCLUSION WAS RAISED BY THE TRIBUNAL IN THE CASE B.G. INDIA ENERGY PRIVATE LIMITED (ITA/6486/DEL/2012,DAT ED 04/10/2016). 3.5. CONSIDERING THE ABOVE,WE ARE OF THE OPINION THAT AL L THE FIVE COMPARABLES-I.E. AL,CLL, GITL,RITES AND WL,SELECTED BY THE TPO FOR BENCHMARK ING THE IT.S OF THE ASSESSEE-ARE NOT PROVIDING MSS,THAT THERE FUNCTIONALLY DISSIMILAR,TH AT THEY HAVE TO BE EXCLUDED FROM THE FINAL LIST OF THE VALID COMPARABLES.THERE IS NOTHING ON RECORD TO PROVE THAT SUPPORT SERVICES PROVIDED BY THE ABOVE FIVE COMPARABLES WERE ALSO ASSOCIATED WIT H MARKETING FUNCTION. THERE IS NO DOUBT THAT THE SUPPORT SERVICES PROVIDED BY THE ASSESSEE WERE DIRECTLY ASSOCIATED WITH MARKETING.WE FIND THAT IF THESE FIVE COMPARABLES ARE EXCLUDED FROM TH E LIST THE VALID COMPARABLES,THE ASSESSEE WILL BE IN THE SAFE ZONE OF +/- 5% -THE OP TO OC OF THE ASSESSEE IS 5.18% WHEREAS OP TO OC OF THE 1766/M/15(10-11) 2183/M/15(10-11) 8 REMAINING COMPARABLES IS 3.01%.IN THE CIRCUMSTANCES ,WE HOLD THAT THE IT.S ENTERED INTO BY THE ASSESSEE WITH ITS AE WAS AT ARMS LENGTH. GOA 2.1 I S DECIDED IN FAVOUR OF THE ASSESSEE. CONSIDERING THE ABOVE,WE ALLOW THE FIRST GROUND OF APPEAL IN FAVOUR OF THE ASSESSEE. 3. IN THE SECOND EFFECTIVE GROUND OF APPEAL T HE ASSESSEE HAS OBJECTED THE TAXATION OF FOREIGN EXCHANGE GAIN OF RS. 20.75 CRORE ON THE GROUND THAT IN THE PRECEDING YEAR THE CLAIM OF FOREIGN EXCHANGE LOSS HAD BEEN DISALLOWED BY THE AO. THE DR P HELD THAT THE FOREIGN EXCHANGE GAIN OFFERED TO TAX BY THE ASSESSEE IN THE RETURN OF INC OME WAS TAXABLE, THAT THE SAME WAS NOT TO BE REDUCED FROM THE INCOME OFFERED.FINALLY,IT REJECTED THE OBJECTIONS RAISED BY THE ASSESSEE. 3.1 .WE FIND THAT THE IDENTICAL ISSUE WAS DEALT BY THE TRIBUNAL FOR THE AY.2009-10 IN FOLLOWING MANNER: 5 .FOREIGN EXCHANGE LOSS IS THE SUBJECT MATTER OF GRO UND NUMBER FOUR.DURING THE ASSESSMENT PROCEEDINGS,THE AO FOUND THAT THE ASSESSEE HAD CLAI MED FOR EXCHANGE LOSS TO THE TUNE OF RS. 40.02 CRORES.AFTER CALLING FOR DETAILS IN THAT REGA RD,HE HELD THAT LOSS WAS NOT ALLOWABLE.THE DRP CONFIRMED THE ORDER OF THE AO. 5.1. DURING THE COURSE OF HEARING BEFORE US, THE AR STAT ED THAT FOREIGN EXCHANGE (FE)LOSS REPRESENTED FURTHER LIABILITY IN FOREIGN EXCHANGE A RISING ON THE ASSESSEE ON ACCOUNT OF REVALUATION OF FOREIGN CURRENCY LABILITY IS AT THE YEAR AND, THAT THE NATURE OF LIABILITIES CLEARLY SHOWED THAT SAME WERE ARISING OUT OF BUSINESS TRANS ACTIONS ON REVENUE ACCOUNT,THAT THE AO HAD ASSESSED THE FE GAIN, BUT HE DID NOT ALLOW THE LOSS , THAT THE LIABILITY WERE REFLECTED AS A FE LIABILITY IN THE ANNUAL ACCOUNTS, THAT THE APPROVAL WAS GIVEN BY THE RBI FOR RECEIVING THE ECB LOAN, THAT THE LOAN WAS TAKEN FOR WORKING CAPITAL R EQUIREMENTS.HE RELIED UPON THE CASES OF WOODWARD GOVERNER INDIA PRIVATE LTD.(312 ITR 254) O IL AND NATURAL GAS CORPORATION LTD. (322 ITR 180). THE DR LEFT THE ISSUE TO THE DISCRETION O F THE BENCH. 5.2. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL BEFORE US.WE FIND THAT THE AO ON ONE HAND WOULD TAX GAIN ON FE EARNINGS BUT WOULD NOT ALLOW LOSS ARISING ON FE LOSS.IN OUR OPINION,THE STAND TAKEN BY THE AO IS NOT JUSTIFIED IN ANY MANNER.IF THE GAINS OF FE FLUCTUATION HAD TO BE TAXED THEN THE LOSS ARISING OUT OF SUCH FLUCT UATION HAS TO BE ALLOWED.WE FIND THAT THE HONORABLE SUPREME COURT, IN THE CASE OF OIL AND NAT URAL GAS CORPORATION (SUPRA)HAS HELD THAT THE LOSS CLAIMED BY THE APPELLANT ON ACCOUNT OF FLU CTUATION IN THE RATE OF FE AS ON THE DATE OF THE BALANCE-SHEET WAS ALLOWABLE AS EXPENDITURE UNDER SE CTION 37(1) OF THE ACT . RESPECTFULLY,FOLLOWING THE ABOVE MENTIONED TWO JUDG MENTS OF THE HONORABLE APEX COURT,RELIED UPON BY THE ASSESSEE,WE DECIDE GROUND NUMBER FOUR I N FAVOUR OF THE ASSESSEE. RESPECTFULLY FOLLOWING THE ABOVE ORDER,SECOND EFFEC TIVE GROUND OF APPEAL STANDS ALLOWED. ITA/2183/MUM/2015: 4. IN HIS ORDER, PASSED UNDER SECTION 154 OF THE ACT, THE AO MENTIONED THAT WHILE COMPUTING THE ASSESSMENT ON 30/1/2015, THE TOTAL INCOME OF THE AS SESSEE WAS DETERMINED AT RS. 27.17 CRORE, THAT THE ISSUE OF INCOME FROM THE AE ON ACCOUNT OF INCEN TIVE WAS DECIDED IN FAVOUR OF THE DEPARTMENT BY THE DRP,THAT WHILE GIVING EFFECT TO T HE ORDER OF THE DRP IT WAS WRONGLY MENTIONED THAT ISSUE WAS IN FAVOUR OF THE ASSESSEE, THAT THE MISTAKE WAS APPARENT FROM THE 1766/M/15(10-11) 2183/M/15(10-11) 9 RECORD.ACCORDINGLY, HE RECTIFIED THE ORDER AND ADDE D RS. 2 CRORE TO THE INCOME OF THE ASSESSEE AS UNDER: THE HONORABLE DRP WIDE ORDER DATED 19. 12. 2014 HA S SUSTAINED THE ADDITION MADE BY THE AO. IN VIEW OF THE ABOVE, RS.2,00,00,000/- IS ADDED BAC K TO THE TOTAL INCOME ON ACCOUNT OF INCENTIVE. 4.1. WE FIND THAT WHILE DEALING WITH THE OBJECTIONS RAIS ED BY THE ASSESSEE IN THAT REGARD,THE DRP HAD OBSERVED THAT THE AO HAD RIGHTLY HELD THAT THE RIGHT TO RECEIVE ITS FEE/COMPENSATION FROM THE AE DID NOT ARISE ON 31/12/2009, THAT SAME WOULD ARI SE WHEN THE ASSESSEE WOULD DECIDE TO GIVE THE INCENTIVE TO THE DEALERS, THAT THE ASSESSEE HAD ENTERED INTO AGREEMENT WITH THE DEALERS PRIOR TO ENTERING INTO AGREEMENT OF 31/12/2009, THAT THE PAR ENT COMPANY HAD DEDUCTED RS. 2 CRORE DUE TO THE ASSESSEE, THAT IT COULD NOT SATISFACTORILY EXPL AIN THE REASON FOR DEDUCTION OF THE SAID AMOUNT BY THE AE, THAT IT WAS NOT EXPLAINED AS TO WHY IT D ID NOT CLAIM RS. 2 CRORE FROM THE AE, THAT THE AGREEMENT BETWEEN THE ASSESSEE AND ITS AE DID NOT P ROVIDE FOR ANY SUCH DETAIL LIABILITY ON ACCOUNT OF THE ASSESSEE, THAT THE INCENTIVES HAD BE EN INCURRED ON BEHALF OF THE PARENT COMPANY 4.2. WE FIND THAT WHILE ADJUDICATING THE APPEAL FOR THE LAST AY.(SUPRA)THE TRIBUNAL HAD DEALT WITH THE ISSUE AS UNDER: 6.3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL BEFORE US.WE FIND THAT THE ASSESSEE HAD INCURRED AN EXPENDITURE OF RS.34.61 CR ORES UNDER THE HEAD MFS,THAT IT RECEIVED RS.32.61 CRORES FORM ITS AE,THAT PAYMENT WAS MADE T O THE AGENTS AS A PART OF INCENTIVE SCHEME INTRODUCED BY IT,THAT AN AGREEMENT WAS ENTERED INTO BETWEEN THE AE AND THE ASSESSEE IN THAT REGARD, IN OUR OPINION,THE BASIC QUESTION TO BE DECIDED IS AS TO WHETHER THE TRANSACTION IN QUESTION WAS AT ARMS LENGTH.HAD TWO INDEPENDENT ENTITIES ENTERED I NTO SUCH AN TRANSACTION WHAT WOULD HAVE HAPPENED IN NORMAL COURSE OF BUSINESS HAS TO BE SEE N TO DETERMINE THE ALP.PROVISION OF SECTION 92 WERE INTRODUCED TO PREVENT THE MISUSE OF PROXIMI TY OF THE AE.S TO MANAGE THEIR AFFAIRS IN A MANNER THAT COULD LEAD TO PAYMENT OF LESS TAXES THA T ARE DUE TO THE SOVEREIGN.HAD THE INCENTIVE IN AN OPEN MARKET BEEN INITIATED BY AN ASSESSEE FOR IT S BENEFIT,IT WOULD BEAR THE COST OF SUCH AN SCHEME.WHY ANY OTHER ENTITY WOULD PAY FOR IT.THE AE DECIDED TO PAY RS.32.61 CRORES TO THE ASSESSEE OUT OF RS.34.61 CRORES,FOR A SCHEME THAT W AS CLAIMED TO BE INTRODUCED BY ASSESSEE ON ITS OWN.THE DEPARTMENTAL AUTHORITIES HAVE TAKEN NOTE OF THE FACT THAT THE ENTIRE CAPITAL OF THE ASSESSEE WOULD BE WIPED OUT HAD IT NOT BEEN PAID RS .32.61 CRORES BY THE AE.IN OUR OPINION,IT WAS A CLEAR CASE OF REIMBURSEMENT BY THE AE OF THE EXPE NDITURE INCURRED BY THE ASSESSEE.FOR THE INCENTIVE SCHEME IT SHOULD HAVE CHARGED FULL AMOUNT TO ITS AE I.E.RS.34.61 CRORES.IF THE AGENTS WOULD USE THE SOFTWARE OF THE AE IT WOULD RESULT IN HIGHER INCOME FOR THE AE TO THE EXTENT OF 75% ,WHEREAS THE ASSESSE WOULD GET 25% OF THE BOOKING.T HUS,THE DIRECT AND MAJOR BENEFICIARY IS AE.BECUASE OF PROXIMITY BETWEEN THEM THE AE AND ASS ESSEE COULD ENTER IN TO AN AGREEMENT TO SUIT THEIR REQUIREMENTS.BUT,THAT WOULD NOT TAKE AWAY THE RIGHT OF THE TPO TO DETERMINE THE ALP OF THE TRANSACTION CONSIDERING THE MARKET VALUE OF SUCH A TRANSACTION.HE HAD CONSIDERED ALL THE ASPECTS OF THE TRANSACTION AND HAD HELD THAT THE ASSESSEE S HOULD HAVE RECEIVED RS.2 CRORES MORE FROM THE AE. WE HAVE GONE THROUGH THE CASES RELIED UPON BY THE A SSESSEE.WE FIND THAT IN THE CASE OF NGC NETWORK (INDIA) PRIVATE LTD.(SUPRA),HONBLE HIGH CO URT WAS DEALING WITH ADVERTISEMENT 1766/M/15(10-11) 2183/M/15(10-11) 10 EXPENDITURE INCURRED BY THE ASSESSEE.IN OUR OPINION ,THE FACTS OF THE CASE UNDER CONSIDERATION CANNOT BE COMPARED WITH THE MATTER OF NGC CASE.HERE ,AN INCENTIVE SCHEME WAS INTRODUCED BY THE ASSESEE AND THE AE MAKES PART PAYMENT FOR THE E XPENDITURE INCURRED BY THE ASSESSEE FOR THE SCHEME.ADVERTISEMENT EXPENDITURE CANNOT BE COMPARED WITH INTRODUCTION OF AN INCENTIVE SCHEMES THAT WOULD INCREASE THE REVENUE OF THE AE.HERE IT I S NOT A CASE OF INCIDENTAL BENEFIT TO AE-IT IS A CASE OF MAJOR BENEFIT TO THE AE AND FRINGE BENEFIT TO THE ASSESSEE.TP PROVISIONS WERE INTRODUCED TO TAKE CARE OF SUCH EVENTUALITIES I.E. DETERMINE T HE MARKET VALUE OF TRANSACTIONS HAD THEY BEEN ENTERED IN BY TWO INDEPENDENT ENTITIES.THEREFORE,IN OUR OPINION,THE ORDER OF THE DRP DOES NOT REQUIRE ANY INTERFERENCE FROM OUR SIDE.MAIN ARGUMEN T OF THE ASSESSEE STANDS DISMISSED. AS FAR AS DISALLOWING THE EXPENDITURE OF RS.2 CRORE S,WHILE COMPUTING THE TAXABLE INCOME OF THE ASSESSEE,IS CONCERNED,WE WOULD LIKE TO HOLD THAT TH E DRP WAS NOT JUSTIFIED IN DISALLOWING THE SAME.THERE IS NO DOUBT ABOUT INCURRING OF EXPENDITU RE BY THE ASSESSEE,AS STATED EARLIER.THE ASSESSEE HAD INTRODUCED AN INCENTIVE SCHEME AND HAD INCURRED THE EXPENSES OF RS.34.61 CRORES. WHETHER THE MONEY RECEIVED FROM AE WAS AT ARMS LEN GTH OR NOT IS A SEPARATE ISSUE.BUT,INCURRING OF EXPENDITURE WAS NEVER IN DOUBT.SO,IN OUR OPINION ,THE ALTERNATE ARGUMENT RAISED BY THE ASSESSEE HAS TO ALLOWED. RESPECTFULLY,FOLLOWING THE ABOVE,WE DECIDE THE EFFE CTIVE GROUND OF APPEAL IN FAVOUR OF THE ASSESSEE. AS A RESULT, BOTH APPEA LS FILED BY THE ASSESSEE STANDS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 10 TH JANUARY,2018. 10 , 2018 SD/- SD/- /AMARJIT SINGH) ( / RAJENDRA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; /DATED :10.01.2018. S.GANGADHARA RAO, SR.PS./JV,SR.PS / COPY OF THE ORDER FORWARDED TO : 1. APPELLANT / 2. RESPONDENT / 3. THE CONCERNED CIT(A)/ , 4. THE CONCERNED CIT / 5. DR K BENCH, ITAT, MUMBAI / , , . . 6. GUARD FILE/ //TRUE COPY// / BY ORDER, / DY./ASST. REGISTRAR , /ITAT, MUMBAI.