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2019 (11) TMI 408

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..... he assessee, prima facie, is acceptable if one has to strictly go by the meaning of “tax”, defined under section 2(43) of the Act, as it only refers to tax paid under the provisions of the Act. Pertinently, unlike section 91 read with Explanation-(iv), section 90 does not provide for inclusion of tax levied by any State/ local authority of that country within the expression ‘income tax’. In view of the aforesaid, we direct the Assessing Officer to verify whether the State taxes paid by the assessee overseas are eligible for any relief under section 90 of the Act and if it is not found to be so, assessee’s claim of deduction should be allowed. In view of our decision above, no separate adjudication of grounds no.1.2 is required. TDS u/s 195 - Disallowance of expenditure incurred for purchase of software by invoking the provisions of section 40(a)(i) - HELD THAT:- Further enquiry is required to be made by the Assessing Officer to factually verify the nature of transaction relating to acquisition of software product for trading purpose to find out whether it is sale of copyrighted article simpliciter or sale of copyright. In case, the payment made by the .....

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..... vided to the AEs - HELD THAT:- After considering the submissions of the parties and examining the material on record, we are convinced that various submissions made by the assessee before learned Commissioner (Appeals) have not at all been dealt with. The primary contention of the assessee that the advance made to the AEs is in the nature of quasi equity and falls within shareholder’s activity has not been properly addressed by the Departmental Authorities keeping in view the ratio laid down in the relevant case laws. It also requires deliberation whether it can be considered as an international transaction under section 92B r/w Explanation-1(c). Since, the aforesaid legal and factual aspects have not been considered properly, we are inclined to restore the issue to the file of the Assessing Officer for de novo adjudication after due opportunity of being heard to the assessee. The Assessing Officer must examine all relevant facts to find out the exact nature of the advances made to the AEs. He should also examine the applicability of the ratio laid down in the case of DLF Hotel Holdings Ltd. [2016 (11) TMI 1031 - ITAT DELHI] and any other case laws which may be cited before h .....

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..... payment viz. commission has also not been disputed by the Revenue. That being the case, since the commission paid to the non-resident agents is not chargeable to tax in India at their hands, there is no necessity for the assessee to withhold tax under section 195(1) of the Act on such payment. Accordingly, we uphold the decision of learned Commissioner (Appeals) on this issue. Comparable selection - HELD THAT:- learned Commissioner (Appeals) has taken pains to examine in detail the alternative benchmarking done by the assessee with foreign comparables and after detailed analysis has shortlisted the final comparables to be considered for comparability analysis. No convincing argument or evidence has been brought on record by the learned Departmental Representative to persuade us to disturb the finding of learned Commissioner (Appeals) on these issues. In view of the aforesaid, we do not find any merit in the grounds raised by the Revenue on the issues. Accordingly, grounds are dismissed. - ITA no.5713/Mum./2016, IT(TP)A no.5823/Mum./2016 - Dated:- 30-10-2019 - Shri Saktijit Dey, Judicial Member And Shri N.K. Pradhan, Accountant Member For the Assessee : Shri Porus Kaka For the Reve .....

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..... g Officer, however, did not find merit in the submissions of the assessee. He observed, the expression tax under section 40(a)(ii) of the Act would encompass all taxes levied on the profit or gains of the business or profession and is not limited to tax levied on total income computed under the provisions of Indian Income Tax Act. Referring to various judicial precedents in this context, the Assessing Officer ultimately disallowed the deduction claimed on account of State taxes paid overseas. Though, the assessee challenged the aforesaid disallowance before learned Commissioner (Appeals), however, he also sustained the disallowance noticing that while deciding identical issue in assessee s own case in assessment year 2005-06, the Tribunal has upheld such disallowance. 4. Shri Porus Kaka, the leaned Sr. Counsel for the assessee submitted, the State taxes in respect of which the assessee claimed the deduction were paid in USA and Canada to the State authorities. He submitted, these taxes were levied on the income of the assessee by various Provincial and State Governments and not by Federal / Central Government. He submitted, section 40(a)(ii) of the Act does not allow deduction of t .....

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..... an any tax paid under the provisions of the Act. Section 40(a)(ii) of the Act says that any rate or taxes levied on the profits or gain in any business or profession would not be allowable as deduction. Explanation-1 to section 40(a)(ii) of the Act inserted by the Finance Act, 2006, w.e.f. 1st April 2006, further clarifies that any sum eligible for relief of tax either under section 90 or 91 of the Act would not be allowable as deduction under section 40(a)(ii) of the Act. It is the say of the assessee that the tax eligible for relief under section 90 of the Act are only those taxes which are levied by Federal / Central Government and not by any local authority of State, City or County. Thus, it is ineligible for any relief under section 90 of the Act. The aforesaid submissions of leaned Sr. Counsel for the assessee, prima facie, is acceptable if one has to strictly go by the meaning of tax , defined under section 2(43) of the Act, as it only refers to tax paid under the provisions of the Act. It is also worth mentioning, the State taxes paid by the assessee in DTAA countries are not eligible for relief under section 90 of the Act. Therefore, the issue which arises is, whether it c .....

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..... nal use amounting to ₹ 47,36,54,498, and for trading purpose amounting to ₹ 31,03,03,823. After perusing the details, the Assessing Officer was of the view that the amount paid towards acquiring software brought along with support service is in the nature of royalty as per section 9(i)(vi) of the Act. In this context, he referred to Explanation-3 to section 9(1)(vi) of the Act as well as CBDT Circular no.621 dated 9th December 2019. Having held so, the Assessing Officer observed that since the assessee had not deducted tax at source while making payment for purchases of software both for internal use as well as for trading purpose, the amount paid is liable for disallowance under section 40(a)(i) of the Act. Accordingly, he disallowed the entire amount of ₹ 78,39,58,321. The assessee challenged the aforesaid disallowance before the first appellate authority. 9. Learned Commissioner (Appeals) following the order passed by the Tribunal in assessee s own case for the assessment year 2005-06, held that the expenditure incurred on software products acquired for internal use is a capital expenditure, hence, the assessee is entitled to depreciation thereon. However, in r .....

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..... Ltd. v/s DCIT, 7 SOT 465 (Mum.). 12. The leaned Sr. Counsel for the assessee submitted, even the payment made towards purchase of software cannot be treated as royalty under the tax treaties as the definition of royalty therein is narrower than the definition in the Act. Referring to Article-12 of Indo-US Tax Treaty, he submitted, the payment made for a copyrighted article is not covered within the meaning of royalty. He submitted, the technical explanation issued by US IRS for explaining the background and the rationale behind the drafting of the Indo-US Tax Treaty clearly indicate that the license granted to the company to use software not being contingent on its use, productivity or further alienation, the license fee paid cannot take the colour of royalty. He submitted, the same rationale can be extended to the Tax Treaties with other countries as the definition of royalty same in all treaties. He submitted, the OECD commentary on Article-12 also clarifies that payment for partial or complete rights in a copy of the program does not amount to royalty. In this context, he relied upon the decision of the Tribunal in its own case in ITA no.7513/Mum./2010, dated 23rd March 2017, an .....

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..... sessing Officer has not at all deliberated on the factual aspect of the issue. Simply relying upon certain judicial precedents and the statutory provisions, he has concluded that the payment made by the assessee for acquiring these software is in the nature of royalty as per section 9(1)(vi) of the Act, hence, assessee is liable to deduct tax at source under section 195(2) of the Act. Whereas, learned Commissioner (Appeals) has improved upon the reasoning of the Assessing Officer by observing that the software acquired by the assessee for trading purpose were not sold as it is by the assessee but have been utilized in programs developed by it for its clients. He has observed that the products developed by the assessee using software acquired were then sold to clients with rights and license. Thus, according to the learned Commissioner (Appeals), it is not a case of mere purchase and subsequent sale of software as a re-seller / trader. He observed, assessee s software package will not be complete without the software acquired for trading purpose. In other words, the software acquired by the assessee is a necessary ingredient of the package being developed and supplied to the client .....

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..... th the software product. No doubt, in assessee s own case for assessment year 2005-06, the Tribunal in ITA no.7513/Mum./2010, dated 23rd March 2017 (after recall of the original appeal order) while dealing with similar issue has held that the payment made by the assessee towards acquiring the software products is not royalty as the assessee has sold a copyrighted article and has not transferred any license or copyright. However, in the facts of the present case, in our considered opinion, further enquiry is required to be made by the Assessing Officer to factually verify the nature of transaction relating to acquisition of software product for trading purpose to find out whether it is sale of copyrighted article simpliciter or sale of copyright. In case, the payment made by the assessee is found to be royalty in view of Explanation-4 to section 9(1)(vi) of the Act, the contention of the assessee that it could not have withheld tax anticipating the change in law brought with retrospective effect, has to be considered keeping in view the decision of the Hon'ble Jurisdictional High Court in NGC Network India Pvt. Ltd. (supra). Further, assessee s contention that Explanatino-4 to s .....

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..... towards brand building, hence, capital in nature. Having held so, the Assessing Officer observed that 1/5th of the expenditure amounting to ₹ 7.75 crore would be allowed in the current year and the balance 80% amount to ₹ 31,00,09,210, would be amortized over the period of next three years in equal proportion. The assessee challenged the aforesaid disallowance before the first appellate authority. 19. The learned Commissioner (Appeals), after considering the submissions of the assessee in the context of facts and material on record, held that except the amount of ₹ 5.28 crore, the balance amount has to be treated as revenue expenditure. Insofar as the amount of ₹ 5.28 crore is concerned, learned Commissioner (Appeals) held it to be capital in nature by observing that the assessee itself has admitted it to be so. 20. The leaned Sr. Counsel for the assessee submitted, assessee had incurred the expenditure for advertisement in newspaper/magazines for marketing of its products of ongoing business. He submitted, such expenditure is routinely incurred every year. He submitted, the expenditure incurred is not in the nature of brand building, hence, not capital. He .....

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..... and perused the material on record. We have also carefully examined the case laws cited before us. On a detailed analysis of facts on record, we have noted that the reasoning of the Assessing Officer that the expenditure was incurred for brand building is without any basis. It is to be noted, before the Departmental Authorities the assessee had demonstrated that in no way it is connected with development of Tata brand. The details of expenditure incurred clearly demonstrate that they were basically for the purpose of advertising assessee s products in print media or through seminar, conferences, etc. As rightly observed by learned Commissioner (Appeals), the Assessing Officer has brought no material on record to establish that the expenditure is for brand building. As observed earlier, the expenditure relates to advertisement in newspaper, magazine, events, seminars, conferences, exhibitions, etc. Thus, the nature of expenditure incurred by the assessee clearly indicates that it was for promoting its own business. Further, considering the turnover of the assessee, the expenditure incurred on advertisement does not appear to be unusually high. That being the case, the expenditure in .....

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..... of its claim of tax credit under section 90 and 91 of the Act amounting to ₹ 93,48,94,709. It was contended by the assessee that the tax paid on income charged to tax outside India and in India would be eligible for deduction in terms of the applicable tax treaties as well as under section 91 of the Act. The Assessing Officer after examining the claim of the assessee and verifying the details allowed tax credit in respect of tax paid overseas on the income which was not only offered to tax abroad but was also subjected to tax in India to the extent not exceeding the rate of tax payable in India. However, in respect of income subjected to tax abroad but exempt from payment of tax in India, he did not grant relief either under section 90 or 91 of the Act. The assessee challenged the aforesaid decision of the Assessing Officer before the first appellate authority. 28. Learned Commissioner (Appeals), after considering the submissions of the assessee and taking note of the decision of the Hon ble Karnataka High Court in Wipro Ltd. v/s DCIT, [2015] 62 taxmann.com 26 (Kar.) bifurcated the foreign tax credit into three parts i.e., tax paid in USA, tax paid in other DTAA countries and .....

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..... lause also appear in various other tax treaties concluded by the Government of India with foreign countries from which the assessee has received income under section 10A / 10AA of the Act till assessment year 2009-10, such as, Denmark, Finland, Hungary, Norway, Oman, South Africa, Saudi Arabia, Taiwan. In this context, he drew our attention to the relevant clauses of the DTAAs with the above noted countries. Thus, he submitted, tax credit has to be provided for taxes paid in overseas jurisdiction in respect of section 10A/10AA eligible income in India as per the provisions of respective DTAAs. He submitted, even under MAT computation, the assessee should be allowed full credit for taxes paid overseas in respect of section 10A/10AA eligible income. In support of his contention, the learned Sr. Counsel put strong reliance upon the decision of the Hon ble Karnataka High Court in Wipro Ltd. (supra).The learned Sr. Counsel submitted, when no decision of the Hon'ble Jurisdictional High Court is available on the issue and the only decision of a High Court which is available is that of the Hon ble Karnataka High Court, even though, the decision is of a non-jurisdictional High Court, ho .....

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..... t, it is open to the Parliament to grant exemption under the Act from payment of tax for any specified period, normally, to incentivize the assessee the to carry on manufacturing activities or providing services. The Court thereafter referring to the treaty provisions with USA held that it is not the requirement of law that the assessee before he claims credit under the Indo-US convention or under the provision of the Act must pay tax in India on such income. The Court observed, as per the embargo placed in the DTAA, the assessee is entitled to such tax credit only in respect of that income which is taxed in USA. In similar context, the Court also referred to the tax treaty with Canada where the provisions does not allow credit for tax paid in Canada if the income is not subjected to tax in India. With regard to country s with which India does not have any agreement for avoidance of double taxation, the Court observed that as per section 91 of the Act, the assessee would be eligible to avail tax credit. Thus, on a careful reading of the aforesaid judgment of the Hon ble Karnataka High Court, it becomes clear that where the respective tax treaty provides for benefit for foreign tax .....

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..... are quasi equity in nature. Therefore, no interest has been charged and the loans have been provided to further the interest of the assessee and not to assist the AEs in any way. The Transfer Pricing Officer, however, did not find merit in the submissions of the assessee. He observed, unduly the assessee has extended loan to its AEs without charging any interest. Further, the loan advanced is unsecured. He observed, in similar uncontrolled transaction between non-related parties, interest would have been charged taking into account creditworthiness of the AEs, margin, security or any other consideration relevant for deciding the financial solvency of the borrower. He observed, if the assessee would have given similar loan to unrelated party under similar circumstances, it certainly would have earned interest. Accordingly, he proceeded to determine the arm s length price of the interest on free loans advanced to the AEs by charging interest @ 9% per annum in respect of loans advanced to TCS Ibero America, TCS FNS Pty. Ltd., TCS Asia Pacific Pty. Ltd., TCS Morocco Ltd. and suggested an adjustment of ₹ 43,97,31,046. Though, the assessee challenged the aforesaid adjustment before .....

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..... controlled transaction, certainly interest would have been charged. Therefore, the Transfer Pricing Officer was justified in determining the arm s length price of interest on interest free loans. Thus, he submitted, the decision of the learned Commissioner (Appeals) on the issue should be sustained. 37. We have considered rival submissions and perused the material on record. We have also carefully gone through the case law cited before us. Notably, right from the stage of transfer pricing proceeding itself the assessee has taken a stand that loans and advances to the AEs are in the nature of quasi equity, hence, cannot be treated as loan simpliciter. It is relevant to observe, the transfer pricing adjustment made on account of interest is in respect of loans advanced to four overseas AEs. From the details available on record, it is noticed that major portion of loans advanced to TCS Ibero America, is for acquisition of downstream subsidiary and about 20% of the advance was for working capital. Money advanced to TCS FNS Pty. Ltd., Australia, was purely for acquisition of downstream subsidiary. Similarly, advance to TCS Asia Pacific Pty. Ltd., is for acquisition of downstream subsidi .....

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..... to the file of the Assessing Officer for de novo adjudication after due opportunity of being heard to the assessee. The Assessing Officer must examine all relevant facts to find out the exact nature of the advances made to the AEs. He should also examine the applicability of the ratio laid down in the case of DLF Hotel Holdings Ltd. (supra) and any other case laws which may be cited before him. The assessee must be afforded reasonable opportunity of being heard. Ground is allowed for statistical purposes. 38. In ground no.10, the assessee has challenged the addition made on account of provision for various guarantees. 39. Brief facts are, during the transfer pricing proceedings, the Transfer Pricing Officer noticed that the assessee has provided various guarantees such as performance, financial and other guarantees to the AEs during the year without charging any commission. The Transfer Pricing Officer was of the view that in an arm's length scenario, an independent enterprise would have paid commission to the enterprise for a similar guarantee to its bank for credit facility. According to the Transfer Pricing Officer, the guarantee provided by the assessee on behalf of its AE .....

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..... Court in CIT v/s Everest Canto Cylinders Ltd., [2015] 378 ITR 57 (Bom.). Further, he relied upon the decision of the Tribunal in WNS Global Services Pvt. Ltd. v/s ITO, ITA no.7378/Mum./ 2012, dated 16th January 2019. 42. The learned Departmental Representative relying upon the observations of the Transfer Pricing Officer submitted, the guarantee fee charged by the Transfer Pricing Officer should be restored. 43. We have considered rival submissions and perused the material on record. We have also applied our mind to the decisions relied upon. Insofar as the contention of learned Sr. Counsel for the assessee that provision of guarantee is not an international transaction as per section 92B of the Act, we are unable to accept such contention. In our considered opinion, after introduction of Explanation-(i)(c) to section 92B of the Act, with retrospective effect from 1st April 2002, provision of guarantee to AEs has to be considered as an international transaction. Different Benches of the Tribunal have also expressed similar view on the issue. Therefore, we hold that the provision of guarantee to the AEs is an international transaction. In fact, the aforesaid view has been expressed .....

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..... l Representative though relied upon the observations of the Assessing Officer, however, he fairly submitted that the issue has been decided in favour of the assessee in assessment year 2005-06. 52. The learned Sr. Counsel for the assessee submitted, the decision of the Tribunal in assessment year 2005-06 has also been upheld by the Hon'ble Jurisdictional High Court while dismissing the appeal filed by the Revenue. 53. We have considered rival submissions and perused the material on record. As noted, identical issue arising in assessee s own case for the assessment year 2005-06 came up for consideration before the Tribunal in ITA no.6820/Mum./2010 dated 4th November 2015. While deciding the issue, the Tribunal held that since both, section 80HHE and section 10A of the Act entitle the assessee for benefit, the assessee would legitimately be entitled to the benefit of that provision of law which enables a larger benefit being earned by him. It is also noticed that the aforesaid decision of the Tribunal has been upheld by the Hon'ble Jurisdictional High Court while deciding Revenue s appeal in ITA no. 1778/2016, vide judgment dated 18th March 2019. The observations of the Hon&# .....

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..... roviso reads as under:- "10A(1)Provided that where in computing the total income of the undertaking for any assessment year, its profits and gains had not been included by application of the provisions of this section as it stood immediately before its substitution by the Finance Act, 2000, the undertaking shall be entitled to deduction referred to in this subsection only for the unexpired period of the aforesaid ten consecutive assessment years. As per this proviso, therefore, while computing total income of the undertaking for any assessment year, the profit and gain which had not been included prior to the introduction of Finance Act, 2000, such an undertaking would be entitled to deduction as per sub-section (1) only for the unexpired period of 10 consecutive assessment years. In plain terms, therefore, this proviso would apply to an industry which was already in existence, engaged in manufacturing and export of computer software when the said amendment was made in section 10A. However, such an industry would be eligible to claim that deduction in relation to profit and gain arising out of such activity only for remainder of the period of 10 assessment years, which could b .....

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..... non-residents for getting contracts in their country of residence. On factually verifying the issue, learned Commissioner (Appeals) found that non-resident agents did not have any business connection in India. Since, the remittances were not in the nature of interest, royalty and fees for technical services, learned Commissioner (Appeals) held that at best the commission paid can be treated as business income of the non-residents and which can only be brought to tax in India if the non-residents have business connection in India or have permanent establishment (PE) in India. Thus, learned Commissioner (Appeals) finally concluded that neither the non residents have any business connection in India nor they have PE in India. Therefore, he held that there is no requirement for deduction of tax at source on the commission paid to non-residents. 5. We have considered rival submissions and perused the material on record. The facts on record clearly reveal that commission has been paid to non-resident agents located in their respective countries towards services rendered by them in those countries in relation to obtaining export contracts for the assessee. No material has been brought on .....

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..... tably, identical issue came up for consideration before the Tribunal in assessee s own case in assessment year 2005-06 (supra). The Tribunal while deciding the issue has held that foreign currency expenditure has to be reduced both from the export turnover as well as total turnover. The aforesaid decision of the Tribunal has been upheld by the Hon'ble Jurisdictional High Court while deciding Revenue s appeal for the assessment year 2005-06 in ITA no.1778/ 2016, dated 18th March 2019. Respectfully following the decision of the Co-ordinate Bench and the decision of the Hon'ble Jurisdictional High Court as referred to above, we uphold the decision of learned Commissioner (Appeals) on this issue. Ground raised is dismissed. 9. The issue raised in ground no.7, has already been decided by us in ground no.6 of assessee s appeal being ITA no.5713/Mum./2016. Hence, no separate adjudication is required. 10. In grounds no.8, 9 and 10, the Revenue has challenged certain decisions of learned Commissioner (Appeals) with regard to the transfer pricing adjustment relating to provision of software consultancy services to the AEs. 11. As discussed elsewhere in this order, on the very same is .....

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..... es with weighted average PLI of 9.80% as against the PLI of the assessee shown at 33.35%. Thus, the price charged for the transaction with AEs were claimed to be at arm's length. Additionally, the assessee also computed the margin earned from the AEs @ 27.15% to net margin earned from both, AEs and non-AEs. Since, the margin earned from AEs was higher, the transactions were taken to be at arm's length. After examining the transfer pricing study report in detail, the Transfer Pricing Officer, however, did not accept the assessee as a tested party. He was of the view that the activities of the assessee is more complex compared to the AEs. The Transfer Pricing Officer observed, the assessee is engaged in the core activities for providing service in the nature of designing, development and maintenance of software service and products to overseas clients through the AEs. Thus, ultimately he held that the AEs should be considered as tested parties. Further,, he did not agree with the PLI adopted by the assessee and held that the cost incurred by the AEs on payment of price to TCS are in the nature of pass through cost, hence, cannot be considered for computing the margin of the A .....

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..... in those geographical locations. Whereas, the grounds raised by the assessee are on selection of the tested party and some other ancillary issues. 16. However, at the outset, learned Sr. Counsel for the assessee, submitted, if the grounds raised by the Department are decided against it, there would be no need to adjudicate assessee s grounds. In view of the aforesaid, to begin with, we propose to deal with the grounds raised by the Department. 17. The learned Departmental Representative submitted, the order passed by the Transfer Pricing Officer is a well-reasoned one, wherein, he has dealt with all the aspects of the issue. He submitted, adoption of OP/VAE as PLI is most appropriate considering the FAR analysis of the assessee as well as the AEs. He submitted, the observation of the Transfer Pricing Officer that the cost incurred by the AEs is in the nature of pass through cost is well thought out and well-reasoned. He submitted, though, the Transfer Pricing Officer may not have mentioned in so many words about the search process undertaken to find out comparables, however, he had undertaken a search process. Thus, he submitted, learned Commissioner (Appeals) was not justified in .....

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..... and significant as the delivery function. Accordingly, the AEs do perform significant function and assume distribution and marketing risk. Therefore, the cost of sub-contracting cannot be ignored while determining the PLI as is the case with all the comparables. The learned Sr. Counsel submitted, there is no dispute on the geographical region comparables relating to the North America, Asia Pacific and European Region. He submitted, after further analysis of the comparables by learned Commissioner (Appeals), it was remanded for further verification to the Transfer Pricing Officer and the same has been accepted by the Revenue as there is no appeal on the issue. Thus, he submitted, the companies approved / selected by learned Commissioner (Appeals) should be considered as comparables with gross profit / sales as the PLI. 20. We have considered rival submissions and perused the material on record. We have also applied our mind to the decisions relied upon. From the grounds raised by the Revenue, the following three issues arise for consideration - (i) what should be the appropriate PLI; (ii) whether cost of outsourcing / sub-contracting to the TCS should be considered for computing the .....

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..... ugh cost, learned Commissioner (Appeals) was absolutely correct in observing that the decision of the Transfer Pricing Officer to exclude such costs while computing the margin of the AEs is incorrect. When similar cost incurred by the comparables were not excluded while computing their margin, a different treatment cannot be given to such costs in case of the AEs. Certainly, the aforesaid approach of the Transfer Pricing Officer has resulted in distorting the correct PLI of the AEs. In the aforesaid context, the observations of learned Commissioner (Appeals) are appreciable, wherein, he has observed that the PLI of the AEs and PLI of comparables have not been computed on similar lines by the Transfer Pricing Officer, hence, comparability condition fails. It is further relevant to observe, the alternative benchmarking furnished by the assessee before the Transfer Pricing Officer by considering the AEs in different geographic locations as tested parties with the comparables selected on the basis of the respective geographic locations furnished before the Transfer Pricing Officer were not properly considered. However, in course of appeal proceedings, the learned Commissioner (Appeals) .....

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