Neilsoft Ltd, Pune V. Assistant Commissioner of Income tax,

ITA 221/PUN/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 5661 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-07-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 08-05-2019
• Assessment Year: 2012-2013
• Appeal Filed On: 30-01-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A K MODI
• Keywords: Transfer pricing; Opportunity of being heard; Principle of natural justice; International transaction; Question of law
• Section: 143(3); 92D

Judgement Text

, LH IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH C, PUNE , . , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI D. KARUNAKARA RAO, AM . / ITA NO.556/PUN/2016 / ASSESSMENT YEAR : 2011-12 ACIT, CIRCLE-2, PUNE. . /APPELLANT VS. NEILSOFT LIMITED, PRIDE PARMAR GALAXY, 10/10 + A, 8 TH FLOOR, SADHU VASWANI CHOWK, PUNE-411001. PAN : AAACN1300P . / RESPONDENT . / ITA NO.636/PUN/2016 / ASSESSMENT YEAR : 2011-12 NEILSOFT LIMITED, PRIDE PARMAR GALAXY, 10/10 + A, 8 TH FLOOR, SADHU VASWANI CHOWK, PUNE-411001. PAN : AAACN1300P . /APPELLANT VS. ACIT, CIRCLE-2, PUNE. . / RESPONDENT . / ITA NO.221/PUN/2017 / ASSESSMENT YEAR : 2012-13 NEILSOFT LIMITED, PRIDE PARMAR GALAXY, 10/10 + A, 8 TH FLOOR, SADHU VASWANI CHOWK, PUNE-411001. PAN : AAACN1300P . /APPELLANT VS. ACIT, CIRCLE-2, PUNE. . / RESPONDENT ITA NO.556/PUN/2016 ITA NO.636/PUN/2016 ITA NO.221/PUN/2017 2 ASSESSEE BY : SHRI C. H. NANIWADEKAR REVENUE BY : SHRI A. K. MODI / DATE OF HEARING : 08.05.2019 / DATE OF PRONOUNCEMENT: 31.07.2019 / ORDER PER D. KARUNAKARA RAO, AM : THERE ARE THREE APPEALS UNDER CONSIDERATION. THE APPEALS IN ITA NO.556/PUN/2016 AND ITA NO.636/PUN/2016 ARE THE CROSS APPEALS FILED BY THE ASSESSEE AS WELL AS BY THE REVENUE AGAINST THE ORDER OF THE ASSESSING OFFICER/TPO/DRP FOR THE ASSESSMENT YEAR 2011-12 . FURTHER, THE APPEAL IN ITA NO.221/PUN/2017 IS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE ASSESSING OFFICER/TPO/DRP FOR THE ASSESSMENT YEAR 2012-13 . 2. FIRST, WE SHALL TAKE UP THE SAID CROSS APPEALS RELATING TO THE ASSESSMENT YEAR 2011-12 FOR ADJUDICATION. CROSS APPEALS A.Y. 2011-12 3. BRIEFLY STATED THE RELEVANT FACTS INCLUDE THAT THE ASSESSEE COMPANY FOUNDED IN 1991, IS ENGAGED IN PROVIDING ENGINEERING AND TECHNOLOGY SERVICES. THE COMPANY SERVICES THE CLIENTS WITH A RANGE OF ENGINEERING SERVICES HELPING TO IMPROVE THEIR ENGINEERING EFFICIENCY AND IMPROVE THEIR COMPETITIVENESS. THE ASSESSEE COMPANY HELPS THE LEADING COMPANIES TO PROVIDE DESIGN AND ENGINEERING SERVICES TO AUTOMATISE THEIR DESIGN PROCESS. ITA NO.556/PUN/2016 ITA NO.636/PUN/2016 ITA NO.221/PUN/2017 3 4. DURING THE YEAR, ASSESSEE ENTERED INTO THE INTERNATIONAL TRANSACTIONS WITH BOTH AE AND ALSO NON-AES. THE ASSESSEE HAS TWO DIVISIONS, I.E. (I) THE DESIGN & ENGINEERING (D&E) SEGMENT AND (II) THE SOFTWARE DISTRIBUTION DIVISION. THE DESIGN & ENGINEERING SERVICES REPORTED INTERNATIONAL TRANSACTIONS WORTH RS.27.08 CRORES INVOLVING AES LOCATED IN USA AND GERMANY. A . IN THE ASSESSEES TP STUDY QUA THE D&E SEGMENT, THE ASSESSEE ADOPTED TNMM AS THE MOST APPROPRIATE METHOD (MAM) AND THE PLI OF THE D&E SEGMENT IS CALCULATED BASED ON OP/OC AT 18.07%. FOR BENCHMARKING THE SAME, ASSESSEE SETTLED FOR 4 COMPARABLES IN THE FINAL LIST AND THEIR ARITHMETIC MEAN IS 13.12% (OP/OC). ACCORDINGLY, THE ASSESSEE HELD THE INTERNATIONAL TRANSACTIONS WITH AE ARE AT ARMS LENGTH. THE DETAILS OF THE INTERNATIONAL TRANSACTIONS WITH AES, METHOD ADOPTED BY ASSESSEE, DETAILS OF THE FOUR COMPARABLES AND THEIR PLIS ARE AS UNDER :- (A) DETAILS OF INTERNATIONAL TRANSACTIONS :- NAME OF THE AE NATURE OF SERVI CES AMOUNT METHOD USED IT AND FACTORY GMBH PURCHASE OF CADISON SOFTWARE 14,50,107 TNMM IT AND FACTORY GMBH SOFTWARE DEVELOPMENT AND LICENSE FEES 5,00,136 TNMM NEILSOFT INC. ENGINEERING SERVICES (INCOME) 13,81,01,610 TNMM IT AND FACTORY GMBH ENGINEERIN G SERVICES (INCOME) 96,70,055 TNMM NEILSOFT INC. ACCOUNTING SERVICES (INCOME) 21,50,880 TNMM CADFORCE INC. ACCOUNTING SERVICES (INCOME) 22,32,500 TNMM NEILSOFT INC. ADVANCE GIVEN 1,39,767 TNMM CADFORCE INC. ADVANCE GIVEN 7,66,37,506 TNMM CADFORCE INC. INVESTMENT IN EQUITY SHARES 44,10,714 - TOTAL 27,07,85,535 (B) DETAILS OF THE COMPARABLES :- SR. NO. NAME OF COMPANY OP/OC ITA NO.556/PUN/2016 ITA NO.636/PUN/2016 ITA NO.221/PUN/2017 4 1. ACROPETAL TECHNOLOGIES LTD. 14.24 2. I-DESIGN SOLUTIONS LTD. 13.73 3. CADES DIGITECH P. LTD. 5.77 4 PL ENGINEERING LTD. 18.76 ARITHMETIC MEAN 13.12% B . BEFORE THE TPO: DURING THE PROCEEDINGS BEFORE THE TPO IT IS NOTICED THAT THE ASSESSEE REPORTED LOSSES AS THE ENTITY LEVEL. FURTHER, THE DESIGN & ENGINEERING (D&E) SEGMENT PROVIDED SERVICES TO BOTH AE AT USA, GERMANY AND NON-AES. THE TRANSACTIONS WITH NON-AES REPORTED LOSSES. AS PER THE SEGMENTAL ACCOUNTS AS SUBMITTED BY THE ASSESSEE, IN D&E SEGMENT, THE PLI OF THE ASSESSEE FOR AE TRANSACTION OF THE D&E SEGMENT ABOVE IS 25.03% WHILE THAT OF THE NON-AE TRANSACTION IS LOSSES WITH PLI (-) 15.55%. FURTHER, THE TPO NOTED THAT ALLOCATION OF EXPENSES BETWEEN AE AND NON-AE SEGMENTS OF THE D&E SEGMENT IS DONE ON REVENUE BASIS AND OBSERVED THAT THE SAME NOT PROPER. THEREFORE, THE TPO ISSUED SHOW-CAUSE NOTICE TO ASSESSEE PROPOSING TO ADOPT PLI OF THE DESIGN & ENGINEERING SEGMENT CLUBBING BOTH THE AE AND NON-AE TRANSACTIONS. THE PLI OF SUCH COMPOSITE D&E SEGMENT WORKS OUT TO 1.86%. SECONDLY, TPO PROPOSED TO NOT ONLY ADOPT CERTAIN FILTERS BUT ALSO TO EXCLUDE 3 OF 4 COMPARABLES OF THE ASSESSEES FINAL LIST. FURTHER, TPO PROCEEDED TO INCLUDE FIVE COMPARABLES FROM HIS OWN SEARCH. TPO MADE CERTAIN ADJUSTMENTS TO THE OPERATING INCOME OF THE ASSESSEE TOO. THEREFORE, THE TPO PROPOSED TO CONSIDER FOLLOWING 6 COMPANIES AS COMPARABLES HAVING THE ADJUSTED PLI WITH ARITHMETIC MEAN OF 19.45% :- SR. NO. NAME OF COMPANY UNADJUSTED PLI ADJUSTED PLI 1. ACROPETAL TECHNOLOGIES LTD. SEGMENT 14.83 7.45 2. TATA ELXSI LTD. 13.95 13.46 3. INFORMED TECHNOLOGIES INDIA LTD. 12.06 19.67 ITA NO.556/PUN/2016 ITA NO.636/PUN/2016 ITA NO.221/PUN/2017 5 4. CALIBER POINT BUSINESS SOLUTIONS LTD. (SEG) 10.54 10.89 5. JINDAL INTELLICOM PVT. LTD. 13.51 12.75 6. ACCENTIA TECHNOLOGIES 54.51 52.49 ARITHMETIC MEAN 19.90 19.45 THUS, THE TPO CALCULATED THE PLI OF THE DESIGN & ENGINEERING SEGMENT OF THE ASSESSEE AT 1.86% AND ALSO CALCULATED THE PLI OF THE SAID 6 COMPARABLES AT 19.45%, AS ADJUSTED. THE TPO AFTER DETAILED DISCUSSION PASSED AN ORDER U/S 92CA(3) OF THE ACT ON 29.01.2015 AND PROPOSED TO MAKE THE TOTAL ADJUSTMENTS OF RS.10,25,82,787/- ON AGGREGATE BASIS ON ENTIRE TURNOVER OF THE ASSESSEE WITHOUT RESTRICTING TO THE INTERNATIONAL TRANSACTIONS RELATING TO DESIGN & ENGINEERING SEGMENT OF THE ASSESSEE. THE TPO ACCEPTED THE RESULTS OF THE OTHER SEGMENT OF THE ASSESSEE. C . BEFORE THE DRP: AGGRIEVED WITH THE ORDER OF THE TPO/ASSESSING OFFICER, THE ASSESSEE CARRIED THE MATTER BEFORE THE DRP FOR WANT OF SUITABLE DIRECTION ON ALL THE AFORESAID ISSUES. THE DRP, AS PER THE DISCUSSION GIVEN IN PARA 2 ONWARDS OF HIS ORDER AND FOLLOWING THE DECISION OF BANGALORE ITAT IN THE CASE OF GENISYS INTEGRATING SYSTEM (INDIA) P. LTD. VS. DCIT (ITA NO.1231/BANG/2010, GAVE CERTAIN DIRECTIONS U/S 144C(5) OF THE ACT ON 09.12.2015. RESULTANTLY, DRP CONFIRMED THE TPOS DECISION OF ADOPTING THE PLI OF THE ENTIRE DESIGN & ENGINEERING (D&E) SEGMENT AT 1.86% AND THE SAME IS IN FAVOUR OF THE REVENUE. FURTHER, THE DRP DIRECTED THE TPO/ASSESSING OFFICER TO RESTRICT THE QUANTUM OF DISALLOWANCE TO THE INTERNATIONAL TRANSACTIONS ONLY. THIS DIRECTION IS NOT IN FAVOUR OF THE REVENUE. FURTHER ALSO, DRP DIRECTED ASSESSING OFFICER TO EXCLUDE INTEREST INCOME OF RS.25.53 LAKHS AND PROVISION WRITE BACK OF RS.8.8 LAKHS FROM THE ITA NO.556/PUN/2016 ITA NO.636/PUN/2016 ITA NO.221/PUN/2017 6 SCOPE OF THE OPERATING INCOME. ON THE FILTERS AND THE FINAL LIST OF COMPARABLES, DRP GAVE SPECIFIC DIRECTIONS TO THE ASSESSING OFFICER. 5. THE ASSESSING OFFICER GAVE EFFECT TO THE SAID DIRECTION OF THE DRP AND PASSED A FINAL ASSESSMENT ORDER U/S 143(3) R.W.S. 144C(13) OF THE ACT ON 29.01.2016 AND REDUCED THE FINAL ADJUSTMENTS TO RS.3,23,94,516/- ONLY AGAINST THE ORIGINALLY PROPOSED ADDITION OF RS.10,25,82,787/-. 6. AGGRIEVED WITH THE ABOVE PART RELIEF GIVEN BY THE DRP/ASSESSING OFFICER IN THEIR RESPECTIVE ORDERS, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. FURTHER, THE REVENUE IS ALSO IN CROSS APPEAL BEFORE THE TRIBUNAL ON THE DIRECTION OF RESTRICTING THE ADJUSTMENT TO THE AE TRANSACTIONS. FIRST, WE SHALL TAKE UP THE ASSESSEES APPEAL FOR ADJUDICATION. THE FOLLOWING ARE THE GROUNDS OF APPEAL OF THE ASSESSEE :- 1. THE LEARNED ASSESSING OFFICER ACTING UNDER DIRECTIONS OF LEANED DISPUTE RESOLUTION PANEL ERRED BOTH ON FACTS AND IN LAW IN CONFIRMING THE ADDITION OF RS.3,23,94,516 BY HOLDING THAT THE APPELLANTS INTERNATIONAL TRANSACTIONS IN THE NATURE OF DESIGN ENGINEERING SERVICES DOES NOT SATISFY THE ARMS LENGTH PRINCIPLE AS ENVISAGED UNDER THE INCOME TAX ACT, 1961. 2. THE LEARNED ASSESSING OFFICER ACTING UNDER THE DIRECTIONS OF LEARNED DISPUTE RESOLUTION PANEL ERRED BOTH ON FACTS AND IN LAW IN AGREEING WITH THE LEARNED TRANSFER PRICING OFFICERS (TPO) DISREGARDING THE ARMS LENGTH PRICE (ALP) AND THE METHODICAL BENCHMARKING PROCESS CARRIED OUT BY THE ASSESSEE IN THE TRANSFER PRICING (TP) DOCUMENTATION MAINTAINED BY IT IN TERMS OF SECTION 92D OF THE ACT READ WITH RULE 10D OF THE INCOME TAX RULES, 1962. HE ERRED IN REJECTING THE TRANSFER PRICING STUDY REPORT OF THE ASSESSEE SUMMARILY WITHOUT GIVING ANY REASONS, EVEN THOUGH HIS ORDER IS RIDDLED WITH FACTUAL ERRORS. 3. THE LEARNED ASSESSING OFFICER ACTING UNDER THE DIRECTIONS OF LEARNED DISPUTE RESOLUTION PANEL ERRED BOTH ON FACTS AND IN LAW IN USING PROFIT LEVEL INDICATOR (PLI) CALCULATED BY AGGREGATING AE AS WELL AS NON-AE TRANSACTIONS. HE FAILED TO APPRECIATE THE FACT THAT, THE ASSESSEE HAS USED THE SEGMENTAL PLI I.E. PLI OF ONLY AE TRANSACTIONS FOR BENCHMARKING WHICH IS ALSO A SETTLED POSITION IN LAW. 4. THE LEARNED ASSESSING OFFICER ACTING UNDER THE DIRECTIONS OF LEARNED DISPUTE RESOLUTION PANEL ERRED BOTH ON FACTS AND IN LAW IN MODIFICATION OF ITA NO.556/PUN/2016 ITA NO.636/PUN/2016 ITA NO.221/PUN/2017 7 THE COMPARABLE COMPANIES SET AS IDENTIFIED BY THE APPELLANT. THE LEARNED ASSESSING OFFICER/TPO ERRED IN REJECTING CERTAIN COMPARABLES CONSIDERED BY THE APPELLANT IN THE COMPARABILITY ANALYSIS BY APPLYING DIFFERENT QUANTITATIVE AND QUALITATIVE FILTERS AND ALSO ERRED BY PERFORMING A FRESH SEARCH AND ADDING COMPANIES REJECTING ASSESSEES CONTENTIONS. 5. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, DELETE OR SUBSTITUTE ALL OR ANY OF THE ABOVE GROUNDS OF APPEAL. 7. FROM THE ABOVE, IT IS EVIDENT THAT, IN GROUNDS NO.1 & 2, THE ASSESSEE IS AGGRIEVED WITH THE REJECTION OF TP STUDY OF THE ASSESSEE AND ALSO THE FINAL ADDITION OF RS.3,23,94,516/-. WHILE GROUND NO.3 RELATES TO THE CALCULATION OF PLI OF THE ASSESSEE, THE GROUND NO.4 RELATES TO THE MODIFICATION MADE TO THE FINAL LIST OF COMPARABLES. GROUND NO.5 IS GENERAL. 8. THE ASSESSEE ALSO RAISED FOLLOWING ADDITIONAL GROUND :- WITHOUT PREJUDICE TO THE OTHER GROUNDS OF APPEAL, THE MARGINS EARNED BY THE ASSESSEE FROM ITS TRANSACTIONS WITH AES ARE HIGHER THAN THE MARGINS EARNED FOR SIMILAR SERVICES TO THIRD PARTIES. ACCORDINGLY, THE INTERNATIONAL TRANSACTIONS WITH AES SHOULD BE CONSIDERED TO BE AT ARMS LENGTH. 9. FIRST WE SHALL TAKE UP THE APPEAL OF THE ASSESSEE FOR GROUNDS-WISE ADJUDICATION IN THE FOLLOWING MANNER. ITA NO.636/PUN/2016 - A.Y. 2011-12 BY ASSESSEE 10. GROUNDS NO.1 & 2, BEING GENERAL IN NATURE, ARE DISMISSED AS SUCH. 11. GROUND NO.3 RELATES TO THE ISSUE OF ADOPTING OF THE PLI OF THE ENTIRE DESIGN & ENGINEERING SEGMENT COMBINING AE TRANSACTIONS AND NON-AE TRANSACTIONS IGNORING THE AE SEGMENTAL DATA OF THE DESIGN & ENGINEERING SEGMENT. IN EFFECT, THE GROUND NO.3 IS RAISED AGAINST ADOPTING THE PLI OF THE ITA NO.556/PUN/2016 ITA NO.636/PUN/2016 ITA NO.221/PUN/2017 8 DESIGN & ENGINEERING SEGMENT OF THE ASSESSEE AT 1.86% INSTEAD OF 18.07% BEING THE PLI OF THE AE SEGMENT ALONE OF THE DESIGN & ENGINEERING SEGMENT. FOR CALCULATING THE PLI OF THE AE TRANSACTIONS OF D&E SEGMENT, THE ASSESSEE ALLOCATED THE EXPENDITURE OF THIS SEGMENT BETWEEN THE AE AND NON-AE TRANSACTIONS AND ADOPTED THE REVENUE BASIS FOR ALLOCATION. FURTHER, THE GROUND NO.4 RELATES TO (I) THE TPOS DECISION OF REJECTION OF 3 COMPARABLES AND (II) THE INCLUSION OF OTHER COMPARABLES. IN PRINCIPLE, DRP CONFIRMED BOTH THE DECISIONS. FURTHER, THE ASSESSEE ALSO RAISED AN ADDITIONAL GROUND STATING THAT THE PLI OF AE SEGMENTAL DESIGN & ENGINEERING SEGMENT AT 18.07% IS MUCH HIGHER THAN THE PLI OF THE COMPARABLES. WE SHALL NOW TAKE UP EACH OF THESE ISSUES IN THE FOLLOWING PARAGRAPHS. A. PLI OF DESIGN & ENGINEERING SEGMENT/AGGREGATION OF AE AND NON-AE TRANSACTIONS. CORRECTNESS OF PLI AT 1.86% INSTEAD OF 18.07% OF THE ASSESSEE FOR ONLY OF PLI OF AE TRANSACTION OF DESIGN & ENGINEERING SEGMENT. 12. FROM THE FACTS AND DEVELOPMENTS NARRATED IN THE PRECEDING PARAGRAPHS OF THIS ORDER, THE CASE OF THE ASSESSEE ON THE SAID ISSUE IS THAT THE ASSESSEE MAINTAINED AE TRANSACTIONS WISE DATA OF D&E SEGMENT AND THE PLI OF THE SAME IS 25.03%. THE ASSESSING OFFICER AND THE TPO DID NOT ACCEPT THE SAID PLI AND PROCEEDED TO CLUB BOTH THE TRANSACTIONS WITH AES AS WELL AS NON-AES OF THE D&E SEGMENT. SUCH MERGER OF AE & NON-AE TRANSACTIONS LED TO THE GENESIS OF PLI OF 1.86% ONLY. THUS, THE DRP CONSIDERED THE ABOVE AND DISCUSSED THIS ISSUE IN PARA 2.3 OF THEIR ORDER ITA NO.556/PUN/2016 ITA NO.636/PUN/2016 ITA NO.221/PUN/2017 9 REJECTED THE ASSESSEES PROPOSITION HOLDING THAT THE SEGMENTAL RESULTS OF THE AE AND NON-AE TRANSACTIONS OF D&E SEGMENT QUA ALLOCATION OF EXPENSES, IS NOT RELIABLE. IT IS AN ADMITTED FACT THAT THE ALLOCATION OF EXPENSES BETWEEN TWO SUB-SEGMENTS OF D&E SEGMENT IS DONE ON THE TURNOVER AND REVENUE BASIS AND NOT ON THE ACTUALS. THE ASSESSEE DID NOT HAVE THE FIGURE OF ACTUAL EXPENDITURE. THIS IS THE REASON FOR THE TPO FOR NOT ACCEPTING THE AE & NON-AE TRANSACTION RESULTS OF THE D&E SEGMENT. DRP ACCORDINGLY APPROVED THE TPOS FINDING IN CLUBBING THE RESULTS OF BOTH AE AND NON-AE TRANSACTIONS OF D&E SEGMENT OF THE ASSESSEE. THE RELEVANT PARA 2.3.2 IS EXTRACTED HEREUNDER :- 2.3.2 THE ASSESSEE HAS CARRIED OUT ITS ACTIVITIES IN TWO SEGMENTS, VIZ. DESIGN ENGINEERING SERVICES (DES) AND SOFTWARE DISTRIBUTION. THE ASSESSEE BIFURCATED THE DES SEGMENT INTO AE TRANSACTIONS AND NON-AE TRANSACTIONS. THE PLI FOR AE TRANSACTIONS IS SHOWN TO BE OF 25.03% AND OF NON-AE TRANSACTIONS OF (-) 15.55%. HOWEVER, EXPENSES HAVE BEEN APPORTIONED BETWEEN AE AND NON-AE ON TURNOVER BASIS AND NOT ACTUALS . THEREFORE, THE TPO HAS HELD THAT THE SAID RESULTS OF AE AND NON-AE TRANSACTIONS OF DES SEGMENT SHOWN BY THE ASSESSEE ARE NOT RELIABLE. ACCORDINGLY, THE TPO HAS NOT CONSIDERED THE PLI OF THE AE TRANSACTIONS WITHIN THE DES SEGMENT. THEREFORE, WE SEE NO INFIRMITY IN THE ACTION OF THE TPO TO CONSIDER THE PLI OF THE ENTIRE SEGMENT OF DES AND NOT OF ONLY AE PORTION. 13. ELABORATING THE BASIS OF ALLOCATION OF EXPENSES, LD. COUNSEL FOR THE ASSESSEE BROUGHT OUR NOTICE TO THE PROFIT AND LOSS ACCOUNT SHOWING THE ALLOCATION OF EXPENSES AND SUBMITTED THAT MOST OF THE EXPENSES ALLOCATED BETWEEN THE AE AND NON-AE SEGMENT OF THE D&E SEGMENT ON REVENUE BASIS. SOME OF THE EXPENSES WERE ALLOCATED BOTH ON THE ACTUALS AS WELL AS ON THE REVENUE BASIS. WHEN THE REASONS FOR CONSIDERING THE SAID BASIS WAS ENQUIRED FROM THE BENCH, LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE SAME CONSTITUTES AN ACCEPTED BASIS OF ALLOCATION OF EXPENSES BETWEEN AE AND NON-AE SEGMENT OF D&E SEGMENT OF THE ASSESSEE. HOWEVER, NO ITA NO.556/PUN/2016 ITA NO.636/PUN/2016 ITA NO.221/PUN/2017 10 EVIDENCES BROUGHT ON RECORD TO DEMONSTRATE THAT SUCH ALLOCATION IS FACTUALLY CLOSE TO THE ACTUAL EXPENDITURE. FURTHER, LD. COUNSEL MENTIONED THAT THE ISSUE OF ALLOCATION OF EXPENSES BETWEEN THE AE & NON-AE DIVISIONS OF D&E SEGMENT AND THE BASIS RELATED ISSUE MAY BE REMANDED TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION. 14. THE LD. DR FOR THE REVENUE IS HIGHLY CRITICAL OF THE ALLOCATION OF EXPENSES BASED ON REVENUE BASIS NOT THE ACTUAL EXPENDITURE. THE LD. DR PICKED UP THE ALLOCATION OF SALARY EXPENSES AS EXAMPLE AND SUBMITTED THAT, OUT OF RS.31.91 CRORES SPENT ON ACCOUNT OF SALARY, RS.8.99 CRORES, 20.03 CRORES AND 2.95 CRORES WERE ALLOCATED TO D&E SEGMENT (I.E. AES SEGMENT AND NON-AES SEGMENT) AND TRADING SEGMENT RESPECTIVELY. FURTHER, LD. DR SUBMITTED THAT THE BASIS FOR SUCH APPORTIONMENT IS UNACCEPTABLE. 15. ON HEARING BOTH THE SIDES ON THIS ISSUE OF ALLOCATION OF EXPENSES BETWEEN AE AND NON-AE SEGMENTS OF D&E SEGMENT, WE ARE OF THE OPINION THE REVENUE BASIS ADOPTED BY THE ASSESSEE SUFFERS FROM ACCURACY ISSUES. WE DO NOT UNDERSTAND WHY ACTUAL QUANTITY OF EXPENDITURE ON SALARY ACCOUNT EXPENDITURE AMONG THE SEGMENTS CANNOT BE WORKED OUT WHEN THE EMPLOYEES ARE APPOINTED SEGMENT-WISE AND THE SAME IS KNOWN TO THE ASSESSEE IN ADVANCE. SIMILAR REASONING IS RAISED FOR ALL THE OTHER ACCOUNTS OF EXPENDITURE. THEREFORE, WE ARE OF THE OPINION, THE MATTER REQUIRES RE- VISIT TO THE FILE OF THE ASSESSING OFFICER/TPO FOR FRESH ADJUDICATION FOR DETERMINATION OF ALLOCATION OF EXPENSES AMONG THE SEGMENTS/SUB-SEGMENTS OF D&E DIVISION. BASIS OF ACTUAL EXPENDITURE IS THE IDEAL BASIS OF ALLOCATION. ITA NO.556/PUN/2016 ITA NO.636/PUN/2016 ITA NO.221/PUN/2017 11 WHEN THE SAME IS NOT POSSIBLE FOR ANY REASON, OTHER SUSTAINABLE BASIS NEEDS TO BE ENTERTAINED. ASSESSING OFFICER/TPO SHALL GRANT REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ACCORDINGLY, THE GROUND NO.3 RAISED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 16. GROUND NO.4 RELATES TO THE MODIFICATION MADE TO THE FINAL LIST OF COMPARABLES. 17. EXCLUSION OF 3 COMPARABLES: THE TPO EXCLUDED THREE OF THE ASSESSEES COMPARABLES, NAMELY, (I) I-DESIGN SOLUTIONS LTD.; (II) CADES DIGITECH P. LTD.; AND, (III) PL ENGINEERING LTD.. THE REASONS FOR SUCH REJECTION INCLUDE THE SMALL QUANTITY TURNOVER AND OPERATING INCOME OF THE COMPARABLE I.E. I-DESIGN SOLUTIONS LTD; IN CASE OF CADES DIGITECH P. LTD., TPO DISCOVERED PERSISTENT LOSS FOR TWO YEARS 2010-11 AND 2011-12 AT LEAST; IN CASE OF PL ENGINEERING LTD., TPO NOTED THAT THE SAME FAILED THE RPT FILTER TEST AT 25%. THE DRP AGGRIEVED WITH THE FINDING OF THE TPO IN TOTO . 18. BEFORE US, ON THE ISSUE OF EXCLUSION OF 3 COMPARABLES, THERE IS NO SPECIFIC ARGUMENTS ARE MADE BY THE LD. COUNSEL FOR THE ASSESSEE BEFORE US. HOWEVER, BRING OUR ATTENTION TO THE DISCUSSION AT PARA 2.3.5 OF THE ORDER OF THE DRP, LD. AR MENTIONED THAT THE SAME CONSTITUTES A CRYPTIC ORDER ON THE SAME. THEREFORE, THERE IS A NEED FOR PASSING A SPEAKING ORDER ON EACH SAID EXCLUDED COMPARABLES. PER CONTRA, LD. DR RELY ON THE ORDER OF THE TPO/ASSESSING OFFICER/DRP DUTIFULLY. ITA NO.556/PUN/2016 ITA NO.636/PUN/2016 ITA NO.221/PUN/2017 12 19. INCLUSION OF 5 COMPARABLES: LD. AR SUBMITTED THAT THE TPO INCLUDED FIVE COMPARABLES IN THE FINAL LIST OF THE COMPARABLES. BASED ON THE FUNCTIONAL TEST, THE TPO ADDED THE SAID 5 NEW COMPARABLES FROM HIS OWN SEARCH AND THEY ARE: (I) CALIBER POINT BUSINESS POINT SOLUTIONS LTD.; (II) INFORMED TECHNOLOGIES INDIA LTD.; (III) JINDAL INTELLICOM PVT. LTD.; (IV) ACCENTIA TECHNOLOGY LTD.; AND, (V) TATA ELXSI LTD. ON THE SAID INCLUSION OF 5 COMPARABLES, DRP HELD THAT (I) CALIBER POINT BUSINESS POINT SOLUTIONS LTD.; (II) INFORMED TECHNOLOGIES INDIA LTD.; AND, (III) JINDAL INTELLICOM PVT. LTD., BEING THE BPO/ITES COMPANIES, THEY ARE COMPARABLE TO THAT OF THE ASSESSEE. IN THIS REGARD, DRP RELIED ON THE DECISION OF SPECIAL BENCH OF MUMBAI TRIBUNAL IN THE CASE OF MAERSK GLOBAL CENTRES (INDIA) PVT. LTD. [ITA NO.7466/MUM/2012 (SB)]. FURTHER, COMMUTING ON THE ANOTHER COMPARABLE NAMELY ACCENTIA TECHNOLOGIES LTD., THE DRP REJECTED THE CONTENTION OF THE ASSESSEE RELATING TO THE EXTRA- ORDINARY EVENT OF ACQUISITION OF A SOFTWARE COMPANY WHICH HAPPENED DURING THE YEAR UNDER CONSIDERATION. FINALLY, ON THE FIFTH COMPARABLE I.E. TATA ELXSI LTD., DRP HELD THAT SOFTWARE DEVELOPMENT SEGMENT SHOULD ALONE BE COMPARABLE AND DIRECTED THE TPO ACCORDINGLY. 20. BEFORE US, ON THIS INCLUSION OF 5 COMPARABLES, LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ENTIRE GROUND NO.4 MAY BE REMANDED TO THE FILE OF TPO/ASSESSING OFFICER. THUS, NO SPECIFIC ARGUMENT TO EACH OF THE COMPARABLES IS MADE BEFORE US. LD. AR SUBMITTED THAT ANOTHER OPPORTUNITY MAY BE GRANTED FOR WANT OF FINDING OF FACT ON THE INCLUSION OF EACH OF THE SAID FIVE COMPARABLES. ITA NO.556/PUN/2016 ITA NO.636/PUN/2016 ITA NO.221/PUN/2017 13 21. ON HEARING BOTH THE SIDES ON THIS ISSUE OF BOTH THE EXCLUSION OF THREE COMPARABLES AS WELL AS THE INCLUSION OF THE SAID FIVE COMPARABLES, WE ARE OF THE OPINION THAT THE GROUND NO.4 OF THE ASSESSEES APPEAL SHOULD BE REMANDED TO THE FILE OF THE ASSESSING OFFICER/TPO FOR FRESH ADJUDICATION. TPO MAY NOTE AND EXAMINE APART FROM OTHERS, HOW THE EVENT OF ACQUISITION OF COMPANY BY THE ACCENTIA TECHNOLOGIES LTD. IS NOT AN EXTRAORDINARY EVENT AND CADES DIGITECH P. LTD. IS A PERSISTENT LOSS MAKING COMPANY. ASSESSING OFFICER/TPO MAY ATTEND TO ALL THE OBJECTION OF ASSESSEE AND ADJUDICATE THEM AFRESH BY PASSING A SPEAKING ORDER ON EACH OF THE COMPARABLE. THE ASSESSING OFFICER/TPO SHALL GRANT REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AS PER SET PRINCIPLES OF NATURAL JUSTICE. ACCORDINGLY, GROUND NO.4 IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. 22. IN THE RESULT, THE APPEAL OF THE ASSESSEE IN ITA NO.636/PUN/2016 FOR THE ASSESSMENT YEAR 2011-12 IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ITA NO.556/PUN/2016 - A.Y. 2011-12 BY REVENUE 23. THE GROUNDS RAISED BY THE REVENUE ARE AS UNDER :- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE DISPUTE RESOLUTION PANEL ERRED IN DIRECTING TO GRANT PROPORTIONATE ADJUSTMENTS SINCE ENTIRE TRANSFER PRICING EXERCISE IS CARRIED OUT ON THE BASIS OF THE ENTITY LEVEL NET MARGIN, CONSIDERING DIFFERENT NET MARGIN OF THE INTERNATIONAL TRANSACTION ON THE BASIS OF SEGMENTAL ACCOUNTS AT THE LATER STAGE WOULD MAKE THE ENTIRE PROCEEDINGS CARRIED OUT INFRUCTUOUS. 2. THE APPELLANT PRAYS THAT THE DIRECTIONS OF THE DRP BE HELD TO BE BAD IN LAW AND QUASHED TO THE ABOVE EXTENT AND THE CONSEQUENTIAL ADJUSTMENT PROPOSED BY THE TPO/ASSESSING OFFICER BE UPHELD. 3. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND OR OMIT ANY OF THE ABOVE GROUNDS OF APPEAL DURING THE COURSE OF THE APPELLATE PROCEEDINGS. ITA NO.556/PUN/2016 ITA NO.636/PUN/2016 ITA NO.221/PUN/2017 14 24. AS PER THE TPOS ORDER, THE ADJUSTMENT QUANTIFIED FOR ADDITION WORKS OUT TO RS.10,25,82,787/-. THIS AMOUNT OF TP ADJUSTMENT IS QUANTIFIED OVER THE OPERATING INCOME OF THE ASSESSEE AS A WHOLE I.E. RS.59.39 CRORES AND OPERATING COST OF RS.58.31 CRORES. THE ABOVE MANNER OF QUANTIFICATION OF ADJUSTMENT WAS NOT APPRECIATED BY THE DRP AS DISCUSSED IN PARA 2.3.3 OF THE ORDER OF THE DRP. THE SAID PARA 2.3.3 IS EXTRACTED HEREUNDER :- 2.3.3 THE ASSESSEE HAS ALTERNATIVELY CONTENDED THAT IT BE ALLOWED PROPORTIONATE ADJUSTMENT RESTRICTED TO THE VALUE OF INTERNATIONAL TRANSACTIONS. WE AGREE WITH THE SAME. THE ONUS IS ON THE LEARNED TPO TO MAKE AN ADJUSTMENT TO THE NET MARGIN OF THE INTERNATIONAL TRANSACTION. THE LEARNED TPO COMPARED THE NET MARGIN AT THE DES SEGMENT AND ACCORDINGLY HAS MADE AN ADJUSTMENT. SEGMENTAL/ENTITY ADJUSTMENT IS NOT ENVISAGED IN THE INCOME TAX RULES THEREFORE, WE AGREE THAT PROPORTIONATE ADJUSTMENT IS REQUIRED TO BE MADE TO ARRIVE AT THE ADJUSTMENT ON THE NET MARGIN OF THE INTERNATIONAL TRANSACTION. WE DIRECT THE LEARNED AO TO MAKE AN ADJUSTMENT TO THE NET MARGIN OF THE ASSESSEES INTERNATIONAL TRANSACTION. 25. FROM THE ABOVE, IT IS EVIDENT THAT THE DRP DIRECTED THE ASSESSING OFFICER TO MAKE ADJUSTMENT TO THE NET MARGIN OF THE ASSESSEES INTERNATIONAL TRANSACTIONS AND ON PROPORTIONATE BASIS. THIS DIRECTION OF THE DRP WAS NOT ACCEPTED BY THE REVENUE IN THIS APPEAL (GROUND NO.1 AND 2). 26. BEFORE US, LD. AR FOR THE ASSESSEE SUBMITTED THAT IT IS A SETTLED LEGAL PROPOSITION AT THE LEVEL OF THE JURISDICTIONAL HIGH COURT THAT THE QUANTIFICATION OF TP ADJUSTMENT, IF ANY, SHOULD BE RESTRICTED TO INTERNATIONAL TRANSACTION WITH AE ONLY. 27. ON HEARING BOTH THE SIDES, WE FIND THE SIMILAR ISSUE IS ADJUDICATED IN FAVOUR OF THE ASSESSEE RESTRICTING THE QUANTIFICATION TO THE INTERNATIONAL TRANSACTIONS WITH AES ONLY. RELYING ON THE REPORTED JUDGMENT IN THE CASE OF RATILAL BECHARLAL & SONS - 138 DTR 316 (BOM.-HC) AND THE JUDGMENT IN ITA NO.556/PUN/2016 ITA NO.636/PUN/2016 ITA NO.221/PUN/2017 15 THE CASE OF FIRESTONE INTERNATIONAL (P) LTD. 378 ITR 558 (BOM.-HC), LD. COUNSEL SUBMITTED THAT THE SAID RATIO OF THESE JUDGEMENTS SUPPORT THE ARGUMENTS OF THE ASSESSEE. IN THE CASE OF FIRESTONE INTERNATIONAL (P) LTD. (SUPRA), IT IS HELD BY THE HONBLE HIGH COURT THAT THE ADDITION CANNOT BE ON THE ENTIRE TURNOVER OF THE ASSESSEE BUT HAS TO BE RESTRICTED ONLY TO THE TRANSACTIONS WITH THE AES. THIS IS APPROVED BY THE TRIBUNAL AND THE HIGH COURT AND HELD NO SUBSTANTIAL QUESTION OF LAW ARISES. CONSIDERING THE SAME, WE ARE OF THE OPINION THE ISSUE RAISED IN GROUNDS OF THE REVENUE SHOULD BE ALLOWED IN FAVOUR OF THE ASSESSEE. THUS, THE GROUNDS RAISED BY THE REVENUE ARE DISMISSED . 28. IN THE RESULT, THE APPEAL OF THE REVENUE IN ITA NO.556/PUN/2016 FOR THE ASSESSMENT YEAR 2011-12 IS DISMISSED. ITA NO.221/PUN/2017 - A.Y. 2012-13 BY ASSESSEE 29. IN THIS APPEAL, THE ASSESSEE RAISED MULTIPLE/VARIOUS GROUNDS, WHICH ARE ALMOST SIMILAR/IDENTICAL TO GROUNDS RAISED BY THE ASSESSEE IN ITA NO.636/PUN/2016 FOR THE ASSESSMENT YEAR 2011-12. FOR THE SAKE OF BREVITY, WE DO NOT REPRODUCE THE GROUNDS RAISED BY THE ASSESSEE IN THIS APPEAL BUT WE PROCEED TO ADJUDICATE THE GROUNDS/ISSUES IN THE FOLLOWING MANNER. 30. GROUNDS NO.1, 2 AND 3 ARE SIMILAR TO GROUND NO.3 OF THE APPEAL FOR ASSESSMENT YEAR 2011-12. THE GROUND NO.4 IS SIMILAR TO GROUND NO.4 RAISED IN APPEAL OF THE ASSESSEE IN ITA NO.636/PUN/2016 FOR THE ASSESSMENT YEAR 2011-12. THEREFORE, OUR DECISIONS ON GROUNDS NO.3 AND 4 ITA NO.556/PUN/2016 ITA NO.636/PUN/2016 ITA NO.221/PUN/2017 16 IN ITA NO.636/PUN/2016 SHALL APPLY MUTATIS-MUTANDIS TO GROUNDS NO.1, 2, 3 AND 4 RESPECTIVELY IN ITA NO.221/PUN/2017 FOR THE ASSESSMENT YEAR 2012-13. THUS, THE GROUNDS NO.1, 2, 3 IN THIS APPEAL ARE ALLOWED FOR STATISTICAL PURPOSES. GROUND NO.4 IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. 31. IN THE RESULT, THE APPEAL OF THE ASSESSEE IN ITA NO.221/PUN/2017 FOR THE ASSESSMENT YEAR 2012-13 IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. 32. TO SUM UP, THE APPEALS OF ASSESSEE IN ITA NO.636/PUN/2016 AND ITA NO.221/PUN/2017 ARE PARTLY ALLOWED FOR STATISTICAL PURPOSES AND THE CROSS APPEAL OF THE REVENUE IN ITA NO.556/PUN/2016 IS DISMISSED. ORDER PRONOUNCED ON 31 ST DAY OF JULY, 2019. SD/- SD/- (SUSHMA CHOWLA) (D. KARUNAKARA RAO ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / PUNE; DATED : 31 ST JULY, 2019. SUJEET / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT; 2. / THE RESPONDENT; 3. THE DRP-3, MUMBAI; 4. THE CIT (DRP-3), MUMBAI; 5. , , LH / DR C, ITAT, PUNE; 6. / GUARD FILE. / BY ORDER, //TRUE COPY// SENIOR PRIVATE SECRETARY , / ITAT, PUNE