Subject: Stated the facts necessary to adjudicate the issues in controversy
Referred Sections:
Section 144C
Section 143 (3) of the Income-tax Act,
Section 271(1)(c) of the Act
Section 244A
Section 92B of the Act.
Section 92F(V) of the Act
Referred Cases / judgments
Horiba India (P.) Ltd. vs. DCIT – (2017) 81 taxmann.com 209 (Delhi-Trib.)
Mattel Toys (I.)(P.) Ltd. vs. DCIT – (2013) 34 taxmann.com 203
ACIT vs. Kobelco Construction Equipment India Ltd. – 186 TTJ 790
Maruti Suzuki India Ltd. vs. CIT – ITA No.110 of 2014 & 710 of 2015,
Restaurants (India) Pvt. Ltd. vs. ITO – ITA No.349 of 2015, CIT
CIT vs. Whirlpool of India Ltd.
Lomb Eyecare (India) (P.) Ltd. vs. ACIT – ITA No.643, 675
IN THE INCOME TAX APPELLATE TRIBUNAL
(DELHI BENCH `I-2' : NEW DELHI)
BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER
and
SHRI KULDIP SINGH, JUDICIAL MEMBER
ITA No.1674/Del./2016
(ASSESSMENT YEAR : 2011-12)
ITA No.1982/Del./2017
(ASSESSMENT YEAR : 2012-13)
ITA No.7088/Del./2017
(ASSESSMENT YEAR : 2013-14)
M/s. Fujitsu India Private Ltd., vs. ACIT, Circle 9 (2),
3rd Floor, Building No.9B, New Delhi.
DLF Cyber City Phase III,
Gurgaon 122 002 (Haryana).
(PAN : AAACF4170D)
(APPELLANT) (RESPONDENT)
ASSESSEE BY : Shri K.M. Gupta, Advocate
Shri Anubhav Rastogi, Advocate
REVENUE BY : Shri H.K. Choudhary, CIT DR
Date of Hearing : 07.05.2018
Date of Order : 03.07.2018
ORDER
PER BENCH :
Since facts and issues involved in all the aforesaid appeals
qua Assessment Years 2011-12, 2012-13 & 2013-14 are identical,
the same are being disposed of by way of consolidated order for
the sake of brevity and to avoid repetition of discussion.
2 ITA No.1674/Del./2016
ITA No.1982/Del./2017
ITA No.7088/Del./2017
2. Appellant, M/s. Fujitsu India Private Ltd.. (for short `the
taxpayer'), by filing the present appeal sought to set aside the
impugned order dated 30.01.2016, 30.01.2017 & 30.10.2017
passed by the AO under section 144C read with section 143 (3) of
the Income-tax Act, 1961 (for short `the Act') qua the assessment
years 2011-12, 2012-13 & 2013-14 respectively in consonance
with the orders passed by the ld. CIT (A)/TPO on the grounds inter
alia that :-
"ITA No.1674/Del./2016 (AY : 2011-12)
1. That on the facts and circumstances of the case and in
law, the order passed by the Learned Assessing Officer (Ld. AO')
under section 143(3) read with section 144C of the Act, in
pursuance of the directions issued by the Honorable Dispute
Resolution Panel (Hon. DRP'), is bad in law to the extent of
adjustment of INR 59,552,876 made in the impugned assessment
order.
2. That on the facts and circumstances of the case and in
law, the Ld. AO/Transfer Pricing Officer (TPO') following the
directions of Hon'ble DRP, erred in assessing the total income of
the Appellant of INR 7,96,25,548 at INR 13,91,78,424.
3. That on the facts and circumstances of the case and in
law, the Ld. AO/ TPO/ Hon'ble DRP erred in disregarding
multiple year/ prior years' data as used by the Appellant in the
TP documentation and holding that current year (i.e. FY 2010-
11) data for comparable companies should be used despite the
fact that the same was not necessarily available to the Appellant
at the time of preparing its Transfer Pricing ("TP")
documentation.
4. That on the facts and circumstances of the case and in
law, the Ld. AO/ TPO/ Hon'ble DRP grossly erred in enhancing
the income of the Appellant by INR 58,724,008 on account of
rejecting Resale Price Method CRPM') as the Most Appropriate
method and substituting the same with Transactional Net Margin
Method (TNMM) and correspondingly rejecting Gross profit/
3 ITA No.1674/Del./2016
ITA No.1982/Del./2017
ITA No.7088/Del./2017
Sales (GP /Sales) as the relevant Profit Level Indicator (`PLI')
and substituting the same with Operating Profit/ Sales (OP
/Sales) to ascertain the arm's length price in the Appellant's case
based on several subjective presumptions.
5. That on the facts and circumstances of the case and in
law, the Ld. AO/ TPO/ Hon'ble DRP grossly erred in
disregarding the principle of consistency and not following the
similar benchmarking approach i.e. RPM as the most
appropriate method which had been accepted in previous
assessment years viz. for assessment year CAY') 2008-09 to AY
2010-11 without giving any cogent reasons of changing the
benchmarking approach in the captioned assessment year as
compared to previous years.
6. That on the facts and circumstances of the case and in
law, the Ld. AO/ TPO/ Hon'ble DRP grossly erred in not
appreciating the functional profile of the Appellant and
incorrectly characterizing the Appellant to be akin to a super
normal! high risk distributor.
7. That on the facts and circumstances of the case and in
law, the Ld. AO/ TPO/ Hon'ble DRP erred in arbitrarily rejecting
ACI Infocom Limited to be a comparable company in the final
comparable set/benchmarking analysis.
8. That on the facts and circumstances of the case and in
law, the Ld. AO/TPO/ Hon'ble DRP erred in alleging that the
Appel1ant is rendering a service to its Associated Enterprise
CAE') for creation of marketing intangibles in India.
9. That on the facts and circumstances of the case and in
law, the Ld. AO/TPO/ Hon'ble DRP erred in alleging that the
Advertising, Marketing and Promotion (,AMP') expenses
incurred by the Appellant results in international transaction and
consequently benchmarked the same separately.
10. That on the facts and circumstances of the case and in
law, the Ld. AO/TPO/ Hon'ble DRP grossly erred in enhancing
the income of the Appellant by INR 828,868 on account of non-
receipt of the reimbursement for "allegedly excessive" AMP
expenses incurred by the Appellant and in doing so have grossly
erred in:
10.1. disregarding the nature of AMP expenses incurred
by the Appellant and incorrectly holding that such
expenses results in developing marketing intangibles for
the AEs;
4 ITA No.1674/Del./2016
ITA No.1982/Del./2017
ITA No.7088/Del./2017
10.2. disregarding the fact that the gross profit earned
by the Appellant more than compensate the allegedly
excessive AMP spends, if any, incurred by it;
10.3. alleging that the AMP expenses incurred by the
Appellant need to be reimbursed by the AEs along with a
mark-up on the same by implicating the same as a service
rendered by the Appellant to its AE for which it has not
been compensated and in doing so grossly erred in;
10.3.1. applying the concept of 'intra-group
services' without a due understanding thereof and
without demonstrating that services has been
rendered for the benefit of the AEs or any tangible
benefits have been received by the AEs for which a
return needs to earned by the Appellant;
10.3.2. applying a mark-up of 6.55% in respect of
the Appellant's "alleged excessive" AMP
expenses, which is completely untenable and based
on mere surmises and conjectures; and
10.3.3. Wrongly computing the adjustment
on account of AMP.
11. Not providing any opportunity of being heard to the
Appellant before making the adjustment on account of non-
receipt of the reimbursement for "allegedly excessive" AMP
expenses incurred by the Appellant thereby violating the rule of
natural justice.
12. That on the facts and circumstances of the case and in
law, the Ld. AO erred in initiating penalty proceedings under
section 271(1)(c) of the Act without assigning cogent reasons for
the same.
13. That on the facts and in the circumstances of the case and
in law, the Ld. AO erred in not giving TDS credit of INR
9,712,074 and proposing to withdraw interest paid under section
244A and "
"ITA No.1982/Del./2017 (AY : 2012-13)
1. That on the facts and circumstances of the case and in
law, the order passed by the Learned Assessing Officer ('Ld. AO')
5 ITA No.1674/Del./2016
ITA No.1982/Del./2017
ITA No.7088/Del./2017
under section 143(3) read with section 144C of the Act, in
pursuance of the directions issued by the Honorable Dispute
Resolution Panel (`Hon. DRP'), is bad in law to the extent of
adjustment of INR 14,99,41,509 made in the impugned
assessment order.
3. That on the facts and circumstances of the case and in
law, the Ld. AO/Transfer Pricing Officer ('TPO') following the
directions of Hon'ble DRP, erred in assessing the total income of
the Appellant of INR 11,92,767 at INR 15,11,34,276.
Transfer Pricing Adjustment amounting to INR 8,20,07,004 to
the Distribution Segment of the Appellant
3. That on the facts and circumstances of the case and in
law, the Ld. AO/ TPO/ Hon'ble DRP erred in disregarding
multiple year/ prior years' data as used by the Appellant in the
TP documentation and holding that current year (i.e. FY 2011-
12) data for comparable companies should be used despite the
fact that the same was not necessarily available to the Appellant
at the time of preparing its Transfer Pricing ("TP")
documentation.
4. That on the facts and circumstances of the case and in
law, the Ld. AO/ TPO/ Hon'ble DRP grossly erred in not
appreciating the functional profile of the Appellant and
incorrectly characterizing the Appellant to be akin to a super
normal / high risk distributor.
5. That on the facts and circumstances of the case and in
law, the Ld. AO/ TPO/ Hon'ble DRP grossly erred in enhancing
the income of the Appellant by INR 8,20,07,004 by rejecting
Resale Price Method ('RPM') as the Most Appropriate method
and substituting the same with Transactional Net Margin
Method ('TNMM') and correspondingly rejecting Gross Profit/
Sales (GP /Sales) as the relevant Profit Level Indicator (,PLI')
and substituting the same with Operating Profit/ Sales (OP
/Sales) to ascertain the arm's length price in the Appellant's case
based on several subjective presumptions.
6. That on the facts and circumstances of the case and in
law, the Ld. AO/ TPO erred in enhancing the income of the
appellant from INR 7,92,43,871 to INR 8,20,07,004 with respect
to the distribution segment of the Appellant on account of
working capital adjustment without providing back up
calculations for the same.
6 ITA No.1674/Del./2016
ITA No.1982/Del./2017
ITA No.7088/Del./2017
Transfer Pricing Adjustment amounting to INR 3,96,82,107 on
account of Advertisement, Marketing & Promotion ('AMP')
expenses incurred by the Appellant
7. That on the facts and circumstances of the case and in
law, the Ld. AO/TPO/ Hon'ble DRP erred in alleging that the
Appellant is rendering a service to its Associated Enterprise
CAE') for creation of marketing intangibles in India.
8. That on the facts and circumstances of the case and in
law, the Ld. AO/TPO (on the directions of the DRP) erred in
alleging that the AMP expenses incurred by the Appellant results
in an international transaction and consequently benchmarked
the same separately.
9. That on the facts and circumstances of the case and in
law, the Ld. AO/TPO/ Hon'ble DRP grossly erred In enhancing
the income of the Appellant by INR 3,96,82,107 on substantive
basis (INR 8,28,54,784 on protective basis) on account of non-
receipt of the reimbursement for alleged excessive AMP expenses
incurred by the Appellant and in doing so have grossly erred in:
9.1. assuming jurisdiction in respect of the AMP
expenditure when such expenditure did not satisfy the
requisites of being an international transaction under
Section 92B read with Section 92F(V) of the Act
9.2. disregarding the nature of AMP expenses incurred
by the Appellant and incorrectly holding that such
expenses results in developing marketing intangibles for
the AEs;
9.3. disregarding the fact that the gross profit earned
by the Appellant compensates the excessive AMP
expenses as alleged by the TPO, if any, incurred by it;
9.4. considering the expenditure incurred in the nature
of normal business function as a service and erroneously
bifurcating the expenditure into routine and non-routine
expenditure
9.5. without prejudice, even if the expenditure on AMP
were to be considered as an international transaction, the
Ld. AO/TPO/ Hon'ble DRP erred in not considering the
same to be interlinked and inter-connected to the
distribution business of the Appellant and disregarding
that it does not warrant a separate benchmarking and
hence disregarding the judicial precedence in this regard
7 ITA No.1674/Del./2016
ITA No.1982/Del./2017
ITA No.7088/Del./2017
9.6. alleging that the AMP expenses incurred by the
Appellant need to be reimbursed by the AEs along with a
mark-up on the same by considering the same as a service
rendered by the Appellant to its AE for which it has not
been compensated and in doing so grossly erred in;
9.6.1. applying the concept of `intra-group
services' without due understanding thereof and
without demonstrating that services have not been
rendered for the benefit of the AEs or any tangible
benefits have not been received by the AEs for
which a return needs to earned by the Appellant;
9.6.2. applying a mark-up of 9% to the
Appellant's alleged excessive AMP expenses,
based on mere surmises and conjectures; and
9.7. making an adjustment on AMP expenses
which has led to double taxation in the hands of
the Assessee.
10. That on the facts and circumstances of the case and in
law, the Ld. AO/TPO/Hon'ble DRP erred in computing the AMP
adjustment by considering the AMP expenditure in total,
irrespective of the fact that the Appellant has multiple segments
including the AE & Non AE Segments. Therefore, considering
the entire AMP expenditure for the computation of adjustment is
erroneous.
11. The Hon'ble DRP erred in law and fact by making a suo
moto transfer pricing adjustment amounting to INR 3,96,82,107
on account of AMP expenses incurred by the Appellant and in
doing so, completely overlooked the fact that such addition did
not arise out of the draft order/TP Order and was not a ground of
objection raised before the Hon'ble DRP.
12. The Hon'ble DRP erred in law and fact by not giving an
opportunity of being heard to the appellant on the issue of AMP
(as raised in ground no. n)(supra) thereby violating the rule of
natural justice.
13. That on the facts and circumstances of the case and in
law, the Ld. AO erred in initiating penalty proceedings under
section 271(1)(C) of the Act without assigning cogent reasons for
the same.
14. That on the facts and circumstances of the case and in
law, the Ld. AO erred in charging interest u/s 234A, 234B &
234C of the Act without assigning cogent reasons for the same.
8 ITA No.1674/Del./2016
ITA No.1982/Del./2017
ITA No.7088/Del./2017
Corporate Tax Ground
15. On the facts, in law and in circumstances of the case, the
Ld. AO erred in rejecting the claim of brought forward losses
made by the assessee, while computing the assessed income."
"ITA No.7088/Del./2017 (AY : 2013-14)
1. Than on the facts and circumstances of the case and in
law, the order passed by the Asst. Commissioner of Income Tax,
Circle 9(2), New Delhi ('Ld. AO') under section 143(3) read with
section 144C of the Act, in pursuance of the directions issued by
the Honorable Dispute Resolution Panel (`Hon. DRP'), is bad in
law to the extent of adjustment of INR 889,841,699 (INR
417,429,552 on account of transactions relating to distribution of
goods, INR 423,363,864 on count of Advertisement, Marketing &
Promotion CAMP') expenses on substantive basis and INR
49,048,283 on account of protective basis) made in the impugned
assessment order.
2. That on the facts and circumstances of the case and in
law, the Ld. AO/Transfer Pricing Officer ('TPO') following the
directions of Hon'ble DRP, erred in assessing the of loss of INR
90,669,840 at an income of INR 799,171,859.
Transfer Pricing Adjustment amounting to INR 417,429,552 to
the Distribution Segment of the Appellant
3. That on the facts and circumstances of the case and in
law, the Ld. AO/ TPO/ Hon'ble DRP erred in disregarding
multiple year/ prior years' data as used by the Appellant in the
TP documentation and holding that current year (i.e. FY 2012-
13) data for comparable companies should be used despite the
fact that the same was not necessarily available to the Appellant
at the time of preparing its Transfer Pricing ("TP")
documentation.
4. That on the facts and circumstances of the case and in
law, the Ld. AO/ TPO/ Hon'ble DRP grossly erred in not
appreciating the functional profile of the Appellant and
incorrectly characterizing the Appellant to be akin to a super
normal/ high risk distributor.
5. That on the facts and circumstances of the case and in
law, the Ld. AO/ TPO/ Hon'ble DRP grossly erred in enhancing
the income of the Appellant by INR 417,429,552 by rejecting
Resale Price Method `RPM') as the Most Appropriate method
9 ITA No.1674/Del./2016
ITA No.1982/Del./2017
ITA No.7088/Del./2017
and substituting the same with Transactional Net Margin
Method ('TNMM') and correspondingly rejecting Gross Profit/
Sales (GP /Sales) as the relevant Profit Level Indicator CPLI')
and substituting the same with Operating Profit/ Sales (OP
/Sales) to ascertain the arm's length price in the Appellant's case
based on several subjective presumptions.
Transfer Pricing Adjustment amounting to INR 472,412,147 on
account of AMP expenses incurred by the Appellant
6. The Ld. AO/TPO/Hon'ble DRP erred in treating a portion
of the Appellant's AMP expenses as being excessive.
Furthermore, Ld. AO/TPO/Hon'ble DRP erred in treating the
alleged excessive AMP expenses as an international transaction
under section 92B of the Act. In doing so, the Ld.
AO/TPO/Hon'ble DRP have grossly erred in:
6.1. assuming jurisdiction in respect of the AMP
expenditure when such expenditure did not satisfy the
requisites of being international transaction under
Section 92B read with Section 92F(V) of the Act;
6.2. not considering that there are no machinery
provisions in Chapter X of the Act which are applicable to
determine the quantum of transfer pricing adjustment
made on account of AMP expenses.
6.3. alleging that the Appellant is rendering a service to
its AEs for creation of marketing intangibles in India.
7. That on the facts and circumstances of the case and in
law, the Ld. AO/TPO/ Hon'ble DRP grossly erred in enhancing
the income of the Appellant by INR 423,363,864 on substantive
basis on account of non-receipt of the reimbursement for alleged
excessive AMP expenses incurred by the Appellant and in doing
so have grossly erred in:
8.1. disregarding the nature of AMP expenses incurred by the
Appellant and incorrectly holding that such expenses results in
developing marketing intangibles for the AEs;
8.2. disregarding the fact that the gross profit earned by the
Appellant compensates the excessive AMP expenses as alleged by
the Ld. TPO, if any, incurred by it;
8.3. considering the expenditure incurred in the nature of normal
business function as a service and erroneously bifurcating the
expenditure into routine and non-routine expenditure;
10 ITA No.1674/Del./2016
ITA No.1982/Del./2017
ITA No.7088/Del./2017
8.4. without prejudice, even if the expenditure on AMP were to be
considered as an international transaction, the Ld. AO/TPO/
Hon'ble DRP erred in not considering the same to be interlinked
and inter-connected to the distribution business of the Appellant
and disregarding that it does not warrant a separate
benchmarking and hence disregarding the judicial precedence in
this regard;
8.5. alleging that the AMP expenses incurred by the Appellant
need to be reimbursed by the AEs along with a mark-up on the
same by considering the same as a service rendered by the
Appellant to its AEs for which it has not been compensated and
in doing so grossly erred in;
8.5.1. applying the concept of 'intra-group services'
without due understanding thereof and without
demonstrating that services have not been rendered for
the benefit of the AEs or any tangible benefits have not
been received by the AEs for which a return needs to
earned by the Appellant;
8.5.2. undertaking comparability adjustment by applying
TNMM and including the alleged excessive AMP
expenses in operating cost and operating revenue along
with a mark-up; and
8.5.3. arbitrarily determining the mark-up to be earned
for performing AMP services;
9. That on the facts and circumstances of the case and in
law, Ld. AO/TPO/ Hon'ble DRP erred in enhancing the income
of the Appellant by INR 49,048,283 on a protective basis and in
doing so, have grossly erred in:
9.1. holding the AMP expenses incurred by the
Appellant to be "excessive" on the basis of a "bright line
test";
9.2. applying a mark-up of 12.18% in respect of the
Appellant's "alleged excessive" AMP expenses;
9.3. disregarding the fact that bright line test has no
statutory mandate and it is not obligatory to subject AMP
expenses to a bright line test
10. That on the facts and circumstances of the case and in
law, the Ld. Ld. AO/TPO/ Hon'ble DRP has grossly erred in
making both substantive and protective adjustment.
11 ITA No.1674/Del./2016
ITA No.1982/Del./2017
ITA No.7088/Del./2017
11. The Hon'ble DRP erred in law and fact by suo mota
directing AMP adjustment based on the addition of previous year
and not giving an opportunity of being heard to the appellant on
the issue of AMP thereby violating the rule of natural justice.
12. That on the facts and circumstances of the case and in
law, the Ld. Ld. AO/TPO has grossly erred in computing
adjustment both on account of change in method from RPM to
TNMM to the distribution segment of the Appellant and AMP
adjustment on substantive basis, which has led to comparability
adjustments being made twice to the income of the Appellant
leading to double taxation in the hands of the Appellant;
13. That on the facts and circumstances of the case and in
law, the Ld. AO erred in initiating penalty proceedings under
section 271(1)(C) of the Act without assigning cogent reasons for
the same.
14. That on the facts and circumstances of the case and in
law, the Ld. AO erred in charging interest u/ s 234A, 234B &
234C of the Act without assigning cogent reasons for the same."
BRIEF FACTS OF
ITA No.1674/Del./2016 (AY : 2011-12)
3. Briefly stated the facts necessary to adjudicate the issues in
controversy are : M/s. Fujitsu India Private Limited, the taxpayer
is a wholly owned subsidiary of Fujitsu Technology Solutions,
Holding, B.V., Netherlands, incorporated in 1997, engaged in
trading of IT solutions and services in India. Portfolio of the
taxpayer also includes servers, storage systems, workstations,
notebooks, desktops & displays. The taxpayer is also engaged in
IT product maintenance and support services. During the years
under assessment, the taxpayer entered into international
12 ITA No.1674/Del./2016
ITA No.1982/Del./2017
ITA No.7088/Del./2017
transactions with its Associated Enterprises (AE) as per Form
No.3CEB which are extracted as under :-
S.No. International Transaction Method Amount
Applied
1. Trading of Goods RPM 7,66,67,772
2. IT Services TNMM 11,59,01,055
3. Business support services TNMM 14,22,58,233
4. Purchase of fixed assets CUP 10,01,83,952
5. Reimbursement of N.A 75,02,235
Expenses
6. Recovery of Expenses N.A 74,44,340
BRIEF FACTS OF
ITA No.1982/Del./2017 (AY : 2012-13)
4. International transactions entered into by the taxpayer with
its AE during AY 2012-13 are extracted as under :-
S.No. International Transaction Method Amount
Applied
1. Purchase of goods for RPM 247,623,420
trading
2. Purchase of spare parts RPM 31,242,767
3. Receipt of IT Services TNMM 20,639,907
2. Provision of IT Services TNMM 28,499,837
3. Business support services TNMM 62,781,183
4. Purchase of fixed assets TNMM 29,684,974
5. Reimbursement of CUP 28,853,246
Expenses
6. Recovery of Expenses CUP 15,297,246
BRIEF FACTS OF
ITA No.7088/Del./2017 (AY : 2013-14)
4. International transactions entered into by the taxpayer with
its AE during AY 2013-14 are extracted as under :-
13 ITA No.1674/Del./2016
ITA No.1982/Del./2017
ITA No.7088/Del./2017
S.No. International Transaction Amount
1. Purchase of finished goods 645,655,926
2. Purchase of spare parts 73,570,891
3. Availing of IT Services 8,226,076
4. Availing of maintenance support 7,050,209
services
4. Provision of IT Services 29,180,273
5. Provision of Business support 281,034,456
services
6. Provision of fixed assets 10,426,407
7. Reimbursement of Expenses 63,758,725
8. Recovery of Expenses 13,570,867
Total 1,132,473,830
5. Common/identical issue involved in all the aforesaid appeals
is that the taxpayer in its TP analysis has selected Resale Price
Method (RPM) as the Most Appropriate Method (MAM) with
Gross Profit / Sales (GP/Sales) as the Profit Level Indicator (PLI),
selected 16 comparables in AY 2011-12 with GP/Sales margin at
5.51% as against taxpayer's GP/Sales margin at 6.55% and found
its international transactions qua AYs 2011-12, 2012-13 and 2013-
14 with regard to trading of goods at arm's length.
6. TPO in all the years viz. AY 2011-12, 2012-13 & 2013-14
rejected RPM as the MAM applied by the taxpayer for
benchmarking its international transactions for trading Fujitsu
products in India i.e. purchase of goods and spares for trading in
India, however applied Transactional Net Margin Method
14 ITA No.1674/Del./2016
ITA No.1982/Del./2017
ITA No.7088/Del./2017
(TNMM) as MAM adopted same comparables as selected by the
taxpayer in TP study by applying RPM method and proposed the
TP adjustment of Rs.58,724,008, Rs.79,243,871 & Rs.4,49,492,709
for AYs 2011-12, 2012-13 & 2013-14 respectively.
7. The taxpayer carried the matter before the ld. CIT (A) by
raising objections who has approved the findings returned by the
TPO qua proposed TP Adjustment in all the three years involved.
Feeling aggrieved, the taxpayer has come up by way of filing
appeals challenging the impugned orders passed by the
AO/TPO/DRP.
8. We have heard the ld. Authorized Representatives of the
parties to the appeal, gone through the documents relied upon and
orders passed by the revenue authorities below in the light of the
facts and circumstances of the case.
GROUNDS NO.1 & 2 IN
ITA No.1674/Del./2016 (AY : 2011-12)
ITA No.1982/Del./2017 (AY : 2012-13)
ITA No.7088/Del./2017 (AY : 2013-14)
9. Grounds No.1 & 2 in ITA No.1674/Del./2016 (AY : 2011-
12), ITA No.1982/Del./2017 (AY : 2012-13) and ITA
15 ITA No.1674/Del./2016
ITA No.1982/Del./2017
ITA No.7088/Del./2017
No.7088/Del./2017 (AY : 2013-14) are general in nature, hence do
not require any specific adjudication.
GROUND NO.3 IN
ITA No.1674/Del./2016 (AY : 2011-12)
ITA No.1982/Del./2017 (AY : 2012-13)
10. Ground No.3 in 1674/Del./2016 (AY : 2011-12) and ITA
No.1982/Del./2017 (AY : 2012-13) is dismissed having not been
pressed during the course of arguments.
GROUNDS NO.4, 5 & 6 IN
ITA No.1674/Del./2016 (AY : 2011-12)
ITA No.1982/Del./2017 (AY : 2012-13)
GROUNDS NO.3, 4 & 5 IN
ITA No.7088/Del./2017 (AY : 2013-14)
11. It is also not in dispute that the taxpayer is trading in servers,
laptops, notepads, etc. which are hardware equipments of IT
segments. It is the case of the TPO that during TP proceedings, the
taxpayer accepted that purchase of trading goods includes goods
for components of IT support services. So, these two types of
goods being intrinsically inter-connected, it is not correct to
benchmark trading at gross level and other parts at net level
because at the gross level there is a positive income and at the net
16 ITA No.1674/Del./2016
ITA No.1982/Del./2017
ITA No.7088/Del./2017
level, there is a loss of 75%. It is also not in dispute that the TPO
has not proposed TP adjustment on account of Advertisement,
Marketing and Promotion (AMP) expenses. However, the AMP
adjustments have been made by ld. DRP.
12. In the backdrop of the aforesaid facts and circumstances of
the case, the sole question arises for determination in this case is :-
"as to whether TPO/DRP have erred in substituting
RPM as the MAM with TNMM by rejecting the Gross
Profit/Sales (GP/Sales) as the Profit Level Indicator
(PLI) by substituting the same with OP/Sales to
determine the Arm's Length Price (ALP) of the
international transactions entered into between the
taxpayer and its Associated Enterprises (AE) during the
years under assessment?"
13. Ld. AR for the taxpayer contended inter alia that the
taxpayer is to be treated as a normal distributor even if there are
multiple transactions; that the taxpayer is selling servers, laptops
and notepads without any value addition; that the taxpayer is
incurring a routine normal advertising expenses which cannot
increase the value of the product but will certainly increase the
sales.
14. However, on the other hand, to repel the arguments of the ld.
AR for the taxpayer, the ld. DR for the Revenue contended that in
the gross margin level, the taxpayer has not considered all the
17 ITA No.1674/Del./2016
ITA No.1982/Del./2017
ITA No.7088/Del./2017
relevant cost because the taxpayer has positive gross profit in
trading segment but at the net level, there is a loss of 75.26%; that
the taxpayer is performing multiple functions including purchase
order, warehousing inventory control, quality control, budgets and
for casting, pricing and marketing and sales, therefore, the taxpayer
is not merely a distributor i.e. sale and purchase of goods, but also
performed host of functions such as marketing including brand
building.
15. TPO has based his entire findings on the sole ground that the
taxpayer is not a normal distributor as he has been performing host
of functions including purchase order, warehousing and inventory
control, quality control, budgeting and forecasting, pricing and
marketing and sales which the taxpayer needs to carry out within
its distribution function to ensure that its goods reached the market
and ready for actual resale. It is also the case of the TPO that
unless the taxpayer has made proper warehousing arrangement or
has proper inventory control, its goods will not move to the point
of sale which can be said of the marketing efforts of the taxpayer.
16. TPO also proceeded to change the method on the premises
that the taxpayer has incurred AMP expenses of Rs.15,425,168/-
against the trading revenue of Rs.81,738,810 which is 18.87%
18 ITA No.1674/Del./2016
ITA No.1982/Del./2017
ITA No.7088/Del./2017
which is definitely much higher than the expenses of a routine
distributor. TPO also not entertained the arguments of the taxpayer
that the net level loss the taxpayer has suffered is due to failure of
the business/ project plans for the financial years on the ground that
AE ought to have been supported the taxpayer either by
reimbursement of cost or some price support in the international
transaction of purchase of finished goods by the taxpayer. So, the
TPO proceeded to believe that the net loss of the taxpayer is linked
to the transfer price that the taxpayer has agreed with its AE and in
these circumstances, TNMM is the most appropriate method.
17. However, when we examine the arguments addressed by
both the ld. Representative for the parties to the appeal in the light
of the undisputed facts, it goes to prove that the taxpayer has
purchased finished goods ready for sale in the market from its AE
without making any value addition to the same. The function
performed by the taxpayer for issuance of the purchase order,
budget control, quality checks, etc. would not change the role of
the taxpayer other than a normal distributor.
18. Now, the question arises for determination in this case is as
to whether functions performed by the taxpayer with regard to
19 ITA No.1674/Del./2016
ITA No.1982/Del./2017
ITA No.7088/Del./2017
quality control, warehousing, sales and marketing etc. are required
to be captured in the resale price margin.
19. Undisputedly, these costs are qua unrelated parties and to
our mind, these activities are not linked to the international
transactions entered into between the taxpayer and the AEs as the
AEs do not have any control on such activities and the answer to
the question is to be found in case law relied upon by the taxpayer
as under.
20. Coordinate Bench of the Tribunal in Horiba India (P.) Ltd.
vs. DCIT (2017) 81 taxmann.com 209 (Delhi-Trib.) while
deciding the identical issue as to whether RPM or TNMM is the
most appropriate method to determine ALP of international
transactions in case of distribution of marketing activities by relied
upon the decision rendered by Hon'ble Mumbai High Court in
L'oreal India PVt. Ltd. in ITA No.1046 of 2012, decisions of the
Tribunal in Nokia India (P) Ltd. (2015) 167 TTJ 243 (Del.) and
Mattel Toys (I.)(P.) Ltd. vs. DCIT (2013) 34 taxmann.com 203
and decided the issue in favour of the assessee by returning
following findings :-
"14. From the aforesaid decision it is quite ostensible that in
case of a distributor, wherein the goods are purchased from AE
and resold to other independent entities without any value
addition, then resale price method should be reckoned as MAM.
One of the main reason given by the TPO as well as the DRP is
20 ITA No.1674/Del./2016
ITA No.1982/Del./2017
ITA No.7088/Del./2017
that the assessee is a full-fledged/full risk distributor and
performing host of functions, therefore, RPM should not be
taken us the MAM, because all these functions required huge
cost which may not represent correct gross profit margin. We are
unable to appreciate such proposition, because in a comparable
uncontrolled transactions scenario, a normal distributor will
undertake all kind of functions which are related to sales of the
product. The functions like market research, sales and
marketing, ware-housing, inventory control, quality control etc.
and also risk like market risk, inventory risk, credit risk etc all
are undertaken by any distributor for sale of products. No
comparable instances have been brought either by the TPO or by
the Ld. DRP that the other distributors are not performing such
functions. What is important is to see is, whether there is any
value addition or not on the goods purchased for resale? If there
is no value addition and if the finished goods which are
purchased from AE are resold in the market as it is, then gross
profit margin earned on such transaction becomes the
determinative factor to analyse the gross compensation after the
cost of sales. Thus, we hold that under the facts of the present
case, RPM should be held as MAM."
21. Coordinate Bench of the Tribunal in ACIT vs. Kobelco
Construction Equipment India Ltd. 186 TTJ 790 also decided
the identical issue by relying upon Mattel Toys (I.)(P.) Ltd. vs.
DCIT (supra) and L'oreal India P. Ltd. - (2012) 24 taxmann.com
192, in favour of the assessee by returning following findings :-
"13. The aforesaid decision clearly clinches the issue that
under the RPM, the focus is more on same or similar nature
of properties or services rather than similarity of products
and functional attribute is a primary factor while
undertaking the comparability analysis under RPM.
Further, RPM is mostly applied in the case of a distributor
where reseller purchases tangible property and obtains
services from the AE and without making any value
addition, resells the same to third parties. Under these
circumstances and looking to the fact that functions
performed by the assessee is of distributor only, therefore,
RPM should be reckoned as the most appropriate method
and accordingly, we agree with the learned CIT(A) that on
21 ITA No.1674/Del./2016
ITA No.1982/Del./2017
ITA No.7088/Del./2017
the facts of the present case, RPM should be the adopted as
the most appropriate method for benchmarking assessee's
international transactions. So far as the two comparables
chosen by the TPO apart from assessee's comparables are
concerned, we find that, T & I Global Limited has rightly
been rejected by learned CIT(A), because this company was
manufacturing machinery, therefore, same cannot be
compared 15 ITA-6401/Del/2012 with the assessee which is
purely performing the distribution function. Thus, the final
list of comparables, i.e., three chosen by the assessee and
accepted by the TPO and one as selected by the TPO and
upheld by the learned CIT(A), is sustained for comparing
the margins under RPM. As a consequence, we hold that
the TP adjustment made by the learned TPO has rightly
been deleted by Ld CIT(A). Accordingly, the grounds raised
by the Revenue are dismissed."
22. Keeping in view the facts and circumstances of the case and
following the decisions rendered by the Hon'ble Mumbai High
Court in L'oreal India PVt. Ltd. in ITA No.1046 of 2012 (supra)
and the decisions of the Coordinate Bench of the Tribunal in
Horiba India (P.) Ltd. vs. DCIT , Nokia India (P) Ltd., Mattel
Toys (I.)(P.) Ltd. vs. DCIT, and ACIT vs. Kobelco Construction
Equipment India Ltd (supra), we are of the considered view that in
case finished goods are purchased by the taxpayer from its AE
ready to be sold in the market without any value addition then
Resale Price Method (RPM) is the MAM to benchmark the
international transactions.
23. So, findings returned by TPO/DRP that the taxpayer being a
full-fledged risk bearing distributor performing numerous
22 ITA No.1674/Del./2016
ITA No.1982/Del./2017
ITA No.7088/Del./2017
functions, RPM is not the MAM, is not sustainable for the reason
that in a comparable uncontrolled transaction, normally distributor
requires to carry out all the functions necessary to enhance the
sales like market research, inventory risk, credit risk etc.. In such
circumstances, no comparable instances have been brought on
record by the TPO/DRP. So, when finished goods purchased by
the taxpayer are resold in the market without any value addition,
then gross margin earned on such transaction is the only
determinative factor to analyse gross compensation after the cost of
sale. So, we are of the considered view that RPM in this case is the
MAM to bench mark the international transactions. In these
circumstances, addition made by the TPO/AO merely by disputing
the method applied by the taxpayer is not sustainable in the eyes of
law. Method for benchmarking the international transaction cannot
be changed merely because of the fact that the taxpayer has
suffered loss at the net level but has positive gross profit in trading
segment as it depends on host of circumstances. So, Grounds
No.4, 5 & 6 in ITA No.1674/Del./2016 (AY : 2011-12) & ITA
No.1982/Del./2017 (AY : 2012-13) and Grounds No.3, 4 & 5 in
ITA No.7088/Del./2017 (AY : 2013-14) are determined in favour
of the taxpayer.
23 ITA No.1674/Del./2016
ITA No.1982/Del./2017
ITA No.7088/Del./2017
GROUND NO.7 IN
ITA No.1674/Del./2016 (AY : 2011-12)
24. Ground No.7 in ITA No.1674/Del/2016 for AY 2011-12 is
dismissed having not been pressed during the course of arguments.
GROUNDS NO.8, 9, 10 & 11 IN
ITA No.1674/Del./2016 (AY : 2011-12)
GROUNDS NO.7, 8, 9, 10, 11 & 12 IN
ITA No.1982/Del./2017 (AY : 2012-13)
GROUNDS NO.7, 8, 9, 10, 11 & 12 IN
ITA No.7088/Del./2017 (AY : 2013-14)
25. Undisputedly, the TPO has not made any adjustment on
account of Advertisement, Marketing & Promotion (AMP)
expenses. The ld. DRP directed the TPO to make adjustment on
account of AMP expenses by treating the same as separate
international transactions. It is the case of the taxpayer that since
the AMP expenses incurred by the taxpayer is not international
transactions and bright line test cannot be accepted to benchmark
the international transactions of AMP, the addition is not
sustainable and relied upon the decision of Maruti Suzuki India
Ltd. vs. CIT ITA No.110 of 2014 & 710 of 2015, Yum
Restaurants (India) Pvt. Ltd. vs. ITO ITA No.349 of 2015, CIT
24 ITA No.1674/Del./2016
ITA No.1982/Del./2017
ITA No.7088/Del./2017
vs. Whirlpool of India Ltd. ITA No.610/2014 and Bausch &
Lomb Eyecare (India) (P.) Ltd. vs. ACIT ITA No.643, 675 to
677 of 2014, 165, 166 & 950 of 2015.
26. However, on the other hand, to repel the arguments of the ld.
AR for the taxpayer, the ld. DR for the Revenue contended that
since the taxpayer is a distributor, it is covered by the decision of
Hon'ble High Court in case of Sony Ericson ITA No.16 of 2014.
27. However, without going into the merits of the case, when we
examine letter dated December 29, 2015 written by the taxpayer to
the ld. DRP, no opportunity of being heard has been given to the
taxpayer before making ALP adjustment on account of AMP
expenses. For ready perusal, operative part of the letter (supra) is
extracted as under :-
"The Hon'ble Panel has asked furnish certain
information. In this regard, the Assessee submits as
follows:
Explain as to why ratio of GP/Sales (gross profit/
operating revenue) shall not be used instead PLR for
benchmarking the international transaction of
advertisement, marketing and promotional ("AMP") in
the Assessee's case and explain as to why the
advertisement expenses excluded by applying bright-
line should not be taken as part of AMP expenses.
In this regard, at the outset, the Assessee would like to
submit that the Learned Transfer Pricing Officer ('Ld.
TPO) in its Order dated January 07, 2015 passed u/s
92CA of the Income-tax Act, 1961 ("the Act"), has not
25 ITA No.1674/Del./2016
ITA No.1982/Del./2017
ITA No.7088/Del./2017
made any adjustment on account of excessive spend by
the Assessee on AMP. Further, this issue was also not
discussed eluting the hearing held before the Hon'ble
Panel on December 14, 2015.
However, in case the Hon'ble Panel wishes to analyse
the marketing intangible/AMP issue at this stage, the
Assessee seeks a reasonable opportunity to present its
case in line with the principle of natural justice.
In case your honour's require any other
information/clarifications, the Assessee would
appropriately respond at the earliest."
28. Bare perusal of the aforesaid letter dated 29.12.2015,
undisputedly received by the ld. DRP, goes to prove that when
letter (supra) issued by the taxpayer seeking opportunity to explain
the query raised by the ld. DRP but the ld. DRP without affording
any opportunity of being heard, ld. DRP has passed the impugned
order on 30.12.2015. So, ld. DRP being a quasi-judicial authority
is under legal obligation to afford an opportunity of being heard to
the taxpayer before passing any order. In these circumstances, TP
adjustment made by the ld. DRP/TPO/AO on account of AMP
expenses is not sustainable, hence the issue is remitted back to the
TPO to decide afresh after providing an opportunity of being heard
to the taxpayer.
26 ITA No.1674/Del./2016
ITA No.1982/Del./2017
ITA No.7088/Del./2017
GROUNDS NO.12 & 13 IN
ITA No.1674/Del./2016 (AY : 2011-12)
GROUNDS NO.13, 14 & 15 IN
ITA No.1982/Del./2017 (AY : 2012-13)
GROUNDS NO.13 & 14 IN
ITA No.7088/Del./2017 (AY : 2013-14)
26. Grounds No.12 & 13 in ITA No.1674/Del./2016 (AY : 2011-
12), Grounds No.13, 14 & 15 in ITA No.1982/Del./2017 (AY :
2012-13) and Grounds No.13 & 14 in ITA No.7088/Del./2017 (AY
: 2013-14) are premature and consequential in nature, hence do not
need any specification adjudication.
27. Resultantly, all the appeals, ITA No.1674/Del./2016 (AY :
2011-12), ITA No.1982/Del./2017 (AY : 2012-13) and ITA
No.7088/Del./2017 (AY : 2013-14) are partly allowed for
statistical purposes.
Order pronounced in open court on this 3rd day of July, 2018.
Sd/- sd/-
(CHANDRA POOJARI) (KULDIP SINGH)
ACCOUNTANT MEMBER JUDICIAL MEMBER
Dated the 3rd day of July, 2018
TS
27 ITA No.1674/Del./2016
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ITA No.7088/Del./2017
Copy forwarded to:
1.Appellant
2.Respondent
3.CIT
4.CIT (A)
5.CIT(ITAT), New Delhi. AR, ITAT
NEW DELHI.
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