2011 (12) TMI 385 - AT - Income Tax

Arm s length price - Reference to DRP - During the course of assessment proceedings the AO noticed that the assessee was engaged in the activities of software related to services carried out from STP units - TPO had no mandate to have recourse to external comparables when in the present case internal comparables were available which could be applied for determining the arm s length price of international transactions with AEs - In the instant case facts and circumstances in the year consideration are indisputably parallel to the facts and circumstances in the preceding assessment year while the directions of the DRP are also based on the conclusion of the ITAT in the preceding assessment year - Appeals are disposed of. Regarding deduction u/s 10A - AO during the course of assessment proceedings noticed that originally the assessee company had set up a STP Unit at 2nd Floor Block-III Sector-29 Noida and it was registered as STP unit in the year 1995 - assessee company was asked to explain as to why the new STP unit established be not treated as reconstruction of the assessee company s original business and why both units should not be treated as single unit the nature of business and the kind of services provided by the assessee being the same in the two units - Held that ITAT in the preceding assessment year accepted the claim of the assessee while holding that new unit was to be treated as a separate and independent unit for the purpose of computing deduction u/s 10A of the Act following the order of the ITAT for the AY 2003-04 - Decided in favor of the assessee. Regarding set off of profit of non-STPI units against the loss of STPI units - Held that ITAT in the preceding assessment year restored the matter back to the file of the AO for fresh computation by treating the provisions of section 10A to be in the nature of deduction provision and not exemption - Decided in favor of the assessee

Issues Involved:
1. Completion of assessment under section 144C read with section 143(3) of the Income-tax Act.
2. Adjustment to income on account of the difference in the arm's length price of international transactions.
3. Disallowance of deduction under section 10A for the third floor GE-GDC STPI unit.
4. Set off of profit of non-STPI units against the loss of STPI units.
5. Treatment of miscellaneous income as part of business income.

Detailed Analysis:

1. Completion of Assessment:
The assessing officer completed the assessment at an income of Rs. 53,03,26,140 against the returned loss of Rs. 74,32,731 under section 144C read with section 143(3) of the Income-tax Act.

2. Adjustment to Income on Account of Arm's Length Price:
- Internal Benchmarking Rejection: The AO/DRP disregarded the internal benchmarking by the assessee for determining the arm's length price of international transactions using TNMM, citing the lack of segmental accounts and credible basis for expense allocation.
- Segmental Profitability: The AO/DRP rejected the segmental profitability submitted by the appellant due to the absence of audited segmental accounts and reliable allocation of expenses.
- Use of Single Year Data: The AO/DRP disregarded multiple-year data, favoring single-year data for comparables.
- Filters for Comparability Analysis: The AO/DRP applied additional filters for wages/sales ratio, persistent losses, and declining revenue, which were deemed unwarranted.
- Selection of Comparables: The AO/DRP included companies with very high turnover and companies from different industries, which were contested by the appellant.
- Risk Profile and Exemption Consideration: The AO/DRP did not consider the risk profile of the assessee and the fact that the income was exempt under section 10A, which would negate the motive for profit transfer.
- Adjustment Calculation: The AO/DRP applied the arm's length margin on the total cost instead of the operating cost related to services provided to associated enterprises.
- Benefit of +/-5%: The AO/DRP did not allow the benefit of +/-5% as per proviso to section 92C(2).

The ITAT directed the AO/TPO to determine the arm's length price using internal comparables, as was done in the preceding assessment year 2006-07, and restored the matter for fresh adjudication.

3. Disallowance of Deduction under Section 10A:
- Nature of New Unit: The AO treated the new GE-GDC unit as an extension of the existing unit, not a new independent unit, thus disallowing the deduction under section 10A.
- Historical Precedent: The ITAT in previous years (2003-04, 2004-05, 2006-07) had accepted the claim of the assessee that the new unit was independent and eligible for deduction under section 10A.

The ITAT reiterated its previous stance, allowing the deduction under section 10A for the new unit.

4. Set Off of Profit of Non-STPI Units Against Loss of STPI Units:
- AO's Conclusion: The AO disallowed the set-off of losses from exempted STPI units against the income of non-STPI units.
- ITAT's Previous Decision: The ITAT had previously ruled that section 10A is a deduction provision and not an exemption, allowing the set-off of losses.

The ITAT restored the matter to the AO for fresh computation, treating section 10A as a deduction provision, in line with previous decisions.

5. Treatment of Miscellaneous Income:
- AO's Treatment: The AO treated the miscellaneous income from notice pay as "income from other sources" instead of business income.
- ITAT's Previous Decision: The ITAT had previously ruled that notice pay should be considered as income derived from the eligible undertaking, thus qualifying for deduction under section 10A.

The ITAT followed its previous decision, treating the notice pay as income derived from the eligible undertaking and allowing the deduction under section 10A.

General and Other Observations:
- General Ground: Ground no.1 was dismissed as it was general in nature and no submissions were made.
- Stay Application: The stay application filed by the assessee was dismissed as the appeal was disposed of.

Conclusion:
The appeal was allowed partly for statistical purposes, with directions for fresh adjudication on several grounds, while the stay application was dismissed.

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