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Daksh Business Process Services Pvt. Ltd. Versus DCIT, Circle 11 (1) , New Delhi

2016 (8) TMI 324 - ITAT DELHI

Transfer pricing adjustment - royalty payment - Held that:- It it is not necessary for the assessee to show that any legitimate expenditure incurred by him was also incurred out of necessity. It is also not necessary for the assessee to show that any expenditure incurred by him for the purpose of business carried on by him has actually resulted in profit or income either in the same year or in any of the subsequent years. The only condition is that the expenditure should have been incurred “whol .....

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impugned royalty payment in accordance with the provisions of Sec.92C of the Act. Accordingly, we are of the opinion that the ALP of the impugned payment for royalty has been wrongly determined as NIL by the TPO and the issue needs to be examined afresh. Accordingly we set aside the order of Assessing Officer/TPO on this issue and restore the same to the file of the TPO for examination of the same afresh in accordance with the law, after affording opportunity of being heard to the assessee. - De .....

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facts of the case are that the taxpayer filed its return of income on 30.09.2009 declaring total income of ₹ 73,15,61,449/-. Since the taxpayer had undertaken international transactions with its associated enterprises, a reference was made by the Assessing Officer (AO) to the Transfer Pricing Officer, New Delhi, under section 92CA(1). Vide order dated 16.01.2013 the Transfer Pricing Officer (TPO) proposed an addition of ₹ 83,47,73,540 and AO vide his draft assessment order dated 18.0 .....

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IBM Daksh is the leading provider of BPO services to Fortune 500 companies in the transaction processing and customer care services segments. Daksh offers remote support services including customer care and technical support through multiple communication channels, back-end transaction processing, outbound collections, telemarketing and web based services including real-time chat. IBM Daksh s unique co-sourcing model and 100 percent BPO focus the enabled IT to re-engineer processes and also prov .....

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s 70,180,368 7 Buy B Buy Back of equity shares 1,162,615,075 4. The taxpayer furnished the TP Study and selected TNMM as the most appropriate method to benchmark its international transactions. The taxpayer had selected 10 comparables in its transfer pricing study. The three year weighted average cost plus margin of comparables was 12.29 percent and IBM Daksh's cost plus margin was 10.32 percent. The taxpayer applied the ±5% range and held that the transaction was at arm's length. .....

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an addition of ₹ 55,11,71,637 in the ITES segment. Further, the TPO noticed that the taxpayer had made a payment of ₹ 28,36,01,903 towards Royalty. The taxpayer in its TP study had aggregated this international transaction with other transaction and by using TNMM along with ITeS services stated that this payment of royalty was also at arm's length. The taxpayer also stated that the payment of royalty was within the permissible limit set by FEMA, 1999 therefore, no separate analy .....

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nciple by applying most appropriate method. Further, relying on the principle of benefit test , TPO held the CUP to be the most appropriate method. Hence, TPO determined the ALP of the transaction relating to Royalty to be at Nil" and thus, proposed as an adjustment of ₹ 28,36,01,903/-. 5. Aggrieved, the assessee raised objections before the DRP. The objections raised by the assessee and the subsequent adjudication by the DRP thereon are as under: i. The assessee s objection before th .....

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ax payer s comparables and including new comparables, while making the comparability analysis. In this regard, the DRP - a) Upheld the TPO s action of rejecting companies having ITes income of less than 75% of the total income as such companies would not be functionally similar to that of the assessee. b) Upheld the TPO s action of rejecting companies whose export revenues were less than 75% of the total revenue on the ground that such filter ensures further refinement of functional proximity in .....

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ubstantial impact on the margins of such companies. f) Upheld the inclusion/exclusion of the following comparables by the TPO a) Coral Hub Ltd. - Inclusion by TPO upheld b) Eclerx Services Ltd. - Inclusion by TPO upheld c) Acropetal Technologies Ltd. - Inclusion by TPO upheld d) Caliber Point Business Solution Ltd. - Exclusion by TPO upheld e) R System International - Exclusion by TPO upheld f) Datamatics Financial Services Ltd. - Exclusion by TPO upheld g) In House Production Ltd. - Exclusion b .....

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jection before the DRP was regarding the AO/TPO s action in determining the value of Royalty at NIL. This objection of the assessee was rejected and the TPO s action of proposing an adjustment of ₹ 28,36,01,903/- was upheld. v. The assessee s fifth claim before the DRP was whether the benefit of +-5% could be claimed as a standard deduction for the purpose of computing ALP. This claim was also rejected by the DRP. vi. On the corporate tax issue, the assessee objected to the AO s proposal t .....

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; 2,01,86,30,817/-. Aggrieved, the assessee has raised the following grounds of appeal before us: That on the facts and circumstances of the case, and in law: 1. The assessment order passed by the Learned Assessing Officer ( Ld. AO ) pursuant to the directions of Learned Dispute Resolution Panel ( Ld. DRP ) is bad in law and void ab-initio. 2. The Ld. AO (following the directions of the Ld. DRP), erred on facts and in law in enhancing the income of the Appellant by ₹ 52,00,18,918 holding t .....

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2.2 using data available at the time of assessment proceedings, instead of using data available at the time of preparing the TP documentation for comparable companies. In doing so, the Ld. TPO has ignored the fact that this data was not available to the Appellant at the time of complying with the TP documentation requirements. 2.3 not applying multiple year/prior year data for comparable companies, while determining the arm s length price. 2.4 rejection of comparabilityanalysis undertaken by the .....

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analysis using non contemporaneous data andsubstituting the Appellant s analysis of filters and comparables with fresh benchmarking analysis based on his own conjectures and surmises. 2.8 applying certain arbitrary filters to arrive at a fresh set of comparables and in determining the arm s length price in connection with the international transactions pertaining to the BPO services segment and holding that the Appellant s international transaction is not at arm s length. 2.9 computing the mark- .....

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does not satisfy the arm s length principle envisaged under the Act and in doing so have grossly erred in: 3.1 holding that the Appellant did not receive any tangible benefit in lieu of the payment of royalty; thereby challenging the commercial wisdom of the Appellant in making payment for royalty and passing the order in contrast with the recent judicial pronouncements in this regard; and 3.2 holding that as per the facts of the case of the Appellant, no independent party would have paid made .....

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e Act. 5. On the facts and in the circumstances of the case and in law, the Ld. AO erred in disallowing prior period expenses of ₹ 5,433,214, without appreciating that the same were crystallized during Financial Year 2008-09. 5.1 That on the facts and in circumstances of the case , the Ld. AO ought to be directed to enhance the deduction under section 10A/10AA of the Act by increasing the profit of the 10 A/ 10 AA undertaking by the amount of disallowance of prior period expenses. 6. The L .....

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either before or during the hearing. 7. On ground no. 2 regarding comparable, the Ld. AR submitted that the assessee is contesting five of the nine companies selected by the TPO as comparable viz. Acropetal Technologies Ltd. (Seg.), Coral Hub, Cosmic Global, Eclarx Services and Infosys BPO Ltd. The Ld. AR drew our attention to the decision of the Hyderabad Bench of the Tribunal in the case of M/s Capital IQ Information Systems (India) Pvt. Ltd. vs. ACIT in ITA Nos. 124/Hyd./2014 & 170/Hyd./2 .....

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ervices Ltd. was excluded relying on the decision of the Special Bench of the ITAT in case of Maersk Global Centre (India) Pvt. Ltd. vs. ACIT in ITA No. 7466/Mum./2012 and holding that the company was a KPO. iii) Cosmic Global Ltd. was excluded relying on the decision of the co-ordinate bench of the Tribunal (Del.) in the case of Mercer Consulting (India) Pvt. Ltd. vs. DCIT in ITA No. 966/Del/2014. iv) Acropetal Technologies Ltd. (Seg.) was excluded from the list of comparables on the ground tha .....

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(Seg.), Cosmic Global Ltd., Eclerx Services Ltd. and Infosys BPO Ltd. Reliance was further placed on the decision of the Hyderabad Bench in Hyundai Motors India Engineering P. Ltd. vs. DCIT in ITA No. 255/Hyd/2014 for the exclusion of Acropetal Technologies Ltd. (seg.), Cosmic Global Ltd., Eclerx Services Ltd. and Infosys BPO Ltd. from the list of comparables. The Ld. AR also relied on numerous other decisions of the co-ordinate Benches of the Tribunal for the exclusion of these four companies .....

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rporation and IBM Daksh Business Process Services Pvt. Ltd. The Ld. AR submitted that the Royalty has been paid at the rates approved by the Reserve Bank of India and as such the same is undoubtedly at Arm s Length. He also drew our attention to page 389 wherein the payment of Royalty has been discussed in the Transfer Pricing Study. Our attention was also drawn to pages 679 to 696 of the Paper Book which contain submissions before the TPO/DRP justifying the payment of royalty. It was submitted .....

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and direct mailing activities. All promotional material is standard and is provided for these types of activities but may be marginally changed for local requirements. In performing or delivering global services, standard IBM service models are used. These employ global processes, best practice methods and risk assessment approaches, and use various tools that have been developed centrally for global use. In delivering their services, IBM Daksh uses these global processes, best practice methods .....

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or delivery, which is applied on all such engagements by consultants. IBM Daksh also adapts standard IBM U.S. created marketing material. It was submitted that IBM U.S. undertakes the above headquarters, marketing and advertising activities in support of the IBM logo, trademarks, and trade names and therefore owns all of the IP associated with them. IBM worldwide subsidiaries do not own these intangibles but licenses the right to use them to conduct their sales, marketing and services activities .....

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ment in order to better service their customers. It was submitted that IBM Daksh is continuously dependent on the technology and innovation which IBM Corporation conducts at their end. There is a clear nexus between the technologies, intangibles, trademarks, etc. owned by IBM and the services rendered by IBM Daksh. IBM Daksh would not be in a position to operate in the Indian market, without the support of the intangibles licensed to it. 10. On the issue of benefits being reaped from the payment .....

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cements, and newly developed intangibles as well, for no additional charge.IBM Daksh has paid an effective royalty of 2.92% to IBM World Trade Corporation on sales made to non-AE s during FY 2008-09 and it is pertinent to note that there has been a substantial increase in profits of IBM Daksh from 7.56% in FY 2005-06 to 22.61% in FY 2008-09. IBM Daksh was granted access to IBM's IP (Including brand) effective from 1 April 2005 and has paid royalty for the use of the same. The use of the said .....

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ed by paying royalty) during the last 5 years, vis-à-vis 7.56% during FY 2004-05 when Daksh was not part of the IBM Group. The above facts clearly state that IBM Daksh derives significant benefits from the IP including brand licensed to it by IBM. It was submitted that based on the above analysis, it can be reasonably asserted that IBM Daksh derives significant benefits from the use of IBM's IP including brand and therefore is justified in the payment of royalty for accessing the same .....

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ique, valuable intangibles including innovative technologies, brands, know-how, customer lists or simply a certain 'look'. If it has value, it can generate licensing revenue and boost a company's bottom line. It was submitted that approximately three-quarters of the total market capitalization of fortune 500 enterprises in the late 1990's is accounted for in intangibles such as patents, trademarks, know-how and customer relationships. The exportation of intangible assets to the U .....

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ayment was disallowed because as per the TPO, the benefit test was not satisfied. He relied on the decision of the Hon ble Delhi High Court in the case of EKL Appliances in ITA No. 1068/2011 & 1070/2011 for the proposition that the Tax Department cannot dictate to the tax payer whether to incur a particular expenditure or not and that the Arm s Length Price of royalty cannot be linked with profit/income resulting there from. The ld. AR also submitted that the observation of the TPO in Para 1 .....

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d that since the total turnover as well as the export turnover are the same in the year under consideration and hence it has become academic in nature. 13. On ground no. 5 on the issue of prior period expenses, it was submitted that in these cases, the bills for services rendered were received after the close of the financial year and hence they were eligible deductible expenses and not essentially prior period items. 14. The Ld. DR, in response, submitted that Cosmic Global Ltd. was earlier sel .....

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other and the application of Rule 10B should be carried out and judged not with technical rigor, but on a broader perspective. He relied on the decisions Techbook International Pvt. Ltd. vs DCIT (2015-TII- 282- ITAT- DEL-TP) and DCIT vs. Deloitte Consulting India Pvt. Ltd (2011 - TII - 88- ITAT- HYD- TP) for these propositions. It was the Ld. DR s submission that the functional similarity cannot be ignored and he relied on the Annual Reports of the disputed companies in support of his argument. .....

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d perused the material on record. Coming to the issue of comparables, it is seen from the Transfer Pricing Study (Pg 374 of the Paper Book) that the business units (BU) at IBM Daksh are categorized as under - Telecom BU catering to clients engaged in telecommunications - eCom & Travel BU catering to clients engaged in online retail sales, travel and hospitality - Tech support BU catering to clients engaged in technical support - Banking, Financial and Insurance BU catering to clients engaged .....

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port further specifies that IBM Daksh undertakes the following broad functions - Rendering services to clients of group entities in accordance with the contracts entered into by the group entities Liaising with clients at the operational level Training employees to maintain the quality of services provided 16. The TP report also specifies that the entity operates as a BPO services company within a globally integrated enterprise from its centres located in Gurgaon, Mumbai, Bangalore, Kolkata and .....

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being incomparable before the TPO on the ground of turnover filter and on other grounds as well. However, the TPO declined to accept the assessee s contention. The issue was again raised before the DRP but it is seen that somehow the DRP has omitted to record a finding. Therefore, we deem it fit to restore this company to the file of the DRP to record its finding after giving due opportunity to the assessee to present its case. (ii) Eclerx Services Ltd - The assessee is objecting to the inclusio .....

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ata analytics services with expertise in financial service and retail and manufacturing. The service provided by the company are high end in nature involving special knowledge and domain expertise and therefore, not functionally comparable with the assessee company which is engaged in providing low end ITES enabled call centre services to its AE. The fact Eclerx Services Ltd. is providing high end services involving special knowledge and domain expertise is evident from the company's own rep .....

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d in providing low end services to group companies. The relevant finding of the Hon'ble Tribunal read as follows:- "In so far as M/s eClerx Services Limited is concerned, the relevant information is available in the form of annual report for financial year 2007-08 placed at page 166 to 183 of the paper book. A perusal of the same shows that the said company provides data analytics and data process solutions to some of the largest brands in the world and is recognized as experts in chose .....

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g. It is claimed to be engaged in providing solutions that do not just reduce cost, but help the clients increase sales and reduce risk by enhancing efficiencies and by providing valuable insights that empower better decisions. M/s eClerx Services Pvt. Ltd. is also claimed to have a scalable delivery model and solutions offered that include data analytics, operations management, audits and reconciliation, metrics management and reporting services. It also provides tailored process outsourcing an .....

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that this company is also mainly engaged in providing high-end services involving specialized knowledge and domain expertise in the field and the same cannot be compared with the assessee company which is mainly engaged in providing low-end services to the group concerns. For the reasons given above, we are of the view that if the functions actually performed by the assessee company for its AEs are compared with the functional profile of M/s eClerx Services Pvt. Ltd. and Mold-Tek Technologies Lt .....

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ctional profile of the assessee company. For the aforesaid reasons, we direct that Eclerx Services Ltd. be excluded from the final list of comparables. (iii) Cosmic Global Ltd - The assessee has relied on the decision of the ITAT Delhi Bench in Mercer Consulting (India) Pvt. Ltd. vs DCIT in ITA 966/Del/2014 for the exclusion of this company whereas it is the department s plea that this company was originally included in the list of comparables by the assessee itself and hence the assessee is pre .....

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n/exclusion of this company from the final set of comparables to the file of the TPO. Needless to say, the TPO will afford a reasonable opportunity to the assessee of being heard before such adjudication. (iv) Acropetal Technologies Ltd. (Seg.) - The objection of the assessee with reference to this company is that the company is involved in engineering design services and high end services and has products in its inventory. It is also involved in R&D activities and in developing sophisticate .....

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list of comparbles. (v) Coral Hub ( formerly Vishal Information Technologies Ltd.- The assessee s objections are that the functional asset & risk profile is dissimilar. The Hon ble Delhi High Court in Rampgreen Solutions (P) Ltd. (supra) had the occasion to consider Vishal Information Technologies Ltd. Paras 37 & 38 are the relevant paragraphs and they read as under: 37.Applying the aforesaid principles to the facts of the present case, it is once again clear that both Vishal and eClerx .....

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and back-office support, portfolio risk management services and various critical data management services. Clearly, the aforesaid services are not comparable with the services rendered by the Assessee. Further, the functions undertaken (i.e. the activities performed) are also not comparable with the Assessee. In our view, the Tribunal erred in holding that the functions performed by the Assessee were broadly similar to that of eClerx or Vishal. The operating margin of eClerx, thus, could not be .....

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the Tribunal directed the exclusion of eClerx as a comparable for the reason that it was engaged in providing KPO Services and further that it had also returned supernormal profits. 38. In our view, even Vishal could not be considered as a comparable, as admittedly, its business model was completely different. Admittedly, Vishal's expenditure on employment cost during the relevant period was a small fraction of the proportionate cost incurred by the Assessee, apparently, for the reason that .....

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the Tribunal to conclude that the outsourcing of services by Vishal would have no bearing on the profitability of the said entity. Drawing strength from the ratio laid down by the Hon ble Delhi High Court, we direct the exclusion of Coral Hub from the final list of comparables. 17. Before proceeding to adjudicate on the issue of royalty, it will be worthwhile to refer to some precedents laid down by the Hon ble Delhi High Court as well as the co-ordinate Benches of the ITAT. The Hon ble Delhi H .....

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ses in their commercial or financial relations which differ from those which would be made between independent enterprises then any profit which would, but for those conditions, have accrued to one of the enterprises, but, by reason of those conditions, if not so accrued, may be included in the profits of that enterprise and taxed accordingly. By seeking to adjust the profits in the above manner, the arm s length principle of pricing follows the approach of treating the members of a multi-nation .....

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ordinarily should be based on the transaction actually undertaken by the associated enterprises as it has been structured by them, using the methods applied by the taxpayer insofar as these are consistent with the methods described in Chapters II and III. In other than exceptional cases, the tax administration should not disregard the actual transactions or substitute other transactions for them. Restructuring of legitimate business transactions would be a wholly arbitrary exercise the inequity .....

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rs from its form. In such a case the tax administration may disregard the parties characterization of the transaction and recharacterise it in accordance with its substance. An example of this circumstance would be an investment in an associated enterprise in the form of interest - bearing debt when, at arm s length, having regard to the economic circumstances of the borrowing company, the investment would not be expected to be structured in this way. In this case it might be appropriate for a t .....

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impedes the tax administration from determining an appropriate transfer price. An example of this circumstance would be a sale under a long-term contract, for a lump sum payment, of unlimited entitlement to the intellectual property rights arising as a result of future research for the term of the contract (as previously indicated in paragraph 1.10). While in this case it may be proper to respect the transaction as a transfer of commercial property, it would nevertheless be appropriate for a ta .....

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stances described above, the character of the transaction may derive from the relationship between the parties rather than be determined by normal commercial conditions as may have been structured by the taxpayer to avoid or minimize tax. In such cases, the totality of its terms would be the result of a condition that would not have been made if the parties had been engaged in arm s length dealings. Article 9 would thus allow an adjustment of conditions to reflect those which the parties would h .....

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structured by the associated enterprises. It is of further significance that the guidelines discourage restructuring of legitimate business transactions. The reason for characterisation of such re-structuring as an arbitrary exercise, as given in the guidelines, is that it has the potential to create double taxation if the other tax administration does not share the same view as to how the transaction should be structured. 18. Two exceptions have been allowed to the aforesaid principle and they .....

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(Appeals) has referred to and applied them and his decision has been affirmed by the Tribunal. These guidelines, in a different form, have been recognized in the tax jurisprudence of our country earlier. It has been held by our courts that it is not for the revenue authorities to dictate to the assessee as to how he should conduct his business and it is not for them to tell the assessee as to what expenditure the assessee can incur. We may refer to a few of these authorities to elucidate the poi .....

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T v. Walchand & Co. etc., (1967) 65 ITR 381, it was held by the Supreme Court that in applying the test of commercial expediency for determining whether the expenditure was wholly and exclusively laid out for the purpose of business, reasonableness of the expenditure has to be judged from the point of view of the businessman and not of the Revenue. It was further observed that the rule that expenditure can only be justified if there is corresponding increase in the profits was erroneous. It .....

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d by the Supreme Court again in CIT v. Rajendra Prasad Moody , (1978) 115 ITR 519, and it was observed as under: - We fail to appreciate how expenditure which is otherwise a proper expenditure can cease to be such merely because there is no receipt of income. Whatever is a proper outgoing by way of expenditure must be debited irrespective of whether there is receipt of income or not. That is the plain requirement of proper accounting and the interpretation of Section 57(iii) cannot be different. .....

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n stronger. 20. In the case of Sassoon J. David & Co. Pvt. Ltd. v. CIT, (1979) 118 ITR 261 (SC), the Supreme Court referred to the legislative history and noted that when the Income Tax Bill of 1961 was introduced, Section 37(1) required that the expenditure should have been incurred wholly, necessarily and exclusively for the purposes of business in order to merit deduction. Pursuant to public protest, the word necessarily was omitted from the section. 21. The position emerging from the abo .....

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ess and nothing more. It is this principle that inter alia finds expression in the OECD guidelines, in the paragraphs which we have quoted above. 22. Even Rule 10B (1)(a) does not authorise disallowance of any expenditure on the ground that it was not necessary or prudent for the assessee to have incurred the same or that in the view of the Revenue the expenditure was unremunerative or that in view of the continued losses suffered by the assessee in his business, he could have fared better had h .....

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iterion to judge allowability of an expense; there is certainly no authority for that. What the TPO has done in the present case is to hold that the assessee ought not to have entered into the agreement to pay royalty/ brand fee, because it has been suffering losses continuously. So long as the expenditure or payment has been demonstrated to have been incurred or laid out for the purposes of business, it is no concern of the TPO to disallow the same on any extraneous reasoning. As provided in th .....

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as suffering losses continuously and these have been referred to by us earlier. Full justification supported by facts and figures have been given to demonstrate that the increase in the employees cost, finance charges, administrative expenses, depreciation cost and capacity increase have contributed to the continuous losses. The comparative position over a period of 5 years from 1998 to 2003 with relevant figures have been given before the CIT (Appeals) and they are referred to in a tabular form .....

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(P) Ltd 367 ITR 730 (Del.): This is the distinction between the jurisdiction of the AO and the TPO; the TPO determines whether the stated transaction value represents the ALP or not (including whether the ALP is nil), while the AO makes the decision as to validity of the deduction under section 37. This means the decision as to whether the expenditure was "laid out or expended wholly and exclusively for the purposes of the business" is a fact determination or verification to be underta .....

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nt; even the sub license fee for the use of trade mark is also faulty. Under the guise of TPO provisions, the TPO cannot determine the ALP at NIL as held by the Hon'ble Delhi High Court in the case of EKL Appliances Ltd., {supra). Therefore, rejecting the entire payment without there being any analysis on the CUP method cannot be accepted. In the guise of analyzing the transactions in the CUP method, the TPO has not brought any evidence on record to reject the 1% payment made to Italcementi .....

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. Even though Italcementi Group was being used from earlier years, AMP expenses of current year also included in this, which is not correct. Moreover, Italcementi Group itself is a 50% shareholder in the assessee-company from the beginning. Therefore, it cannot be stated that 'Zuari Cements' is exclusive brand owner of the Birla Group in exclusion of Italcementi Group. The entire approach by the TPO is biased and cannot be justified on the facts of the case. Therefore, we are not in a po .....

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. In view of this, without deciding the merits of various issues, we set aside the orders and direct the TPO to re-consider the entire order and analyse them in fresh, first by determining the most appropriate method and then analyzing the transactions under the provisions of the TP. The orders of the TPO/DRP on the TP issues are therefore set aside and the entire issue on TP analysis is restored to the file of AO for fresh consideration. The grounds raised are accordingly allowed for statistica .....

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he assessee in that regard. The Learned A.R also relied up on host of case law in connection with this issue. Further the observation of DRP with regard to the trade mark registration, though defended before us by the assessee, requires examination at the end of the Assessing Officer/TPO. Accordingly we are of the view that the ALP of the impugned royalty payment and the issue relating to the trademark registration need to be examined afresh. Accordingly we set aside the order of Assessing Offic .....

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lhi High Court had the occasion to consider an issue of disallowance of royalty by TPO because the assessee in that case had been suffering losses, the Hon'ble High Court while holding that so long as the expenditure or payment by assessee has been demonstrated to have been incurred or laid out for the purposes of business, it is no concern of the TPO to disallow the same on any extraneous reasoning. Furthermore, we are of the opinion that once TNMM has been applied to the assessee company s .....

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seen that the payment of royalty cannot be examined divorced from the production and sales. Royalty is inextricably linked with these activities. In the absence of production and sale of products, there would be no question arising regarding payment of any royalty. Rule 10A (d) defines 'transaction as a number of closely linked transactions. Royalty, then, is a transaction closely linked with production and sales. It cannot be segregated from these activities of an enterprise, being embedde .....

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for examining the royalty….. 22. In the case of DCIT - LTU vs CLSA India Ltd. (2013) 33 taxmann.com 260 (Mumbai Tribunal), the Bench held that CUP method cannot be applied if the relevant information is not available. No such comparable transaction has been brought on record by the Assessing Officer or even by the DRP. No such comparable case has been placed before us by the revenue even now. 23. Therefore, on an overall consideration of the facts of the case and the judicial precedents .....

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