Income Tax Appellate Tribunal - Mumbai
Shl ( India) P.Ltd, Mumbai vs Dcit 3(3), Mumbai on 6 December, 2017
IN THE INCOME TAX APPELLATE TRIBUNAL "E"
BENCH, MUMBAI
BEFORE SHRI RAJENDRA, AM &
SHRI SANDEEP GOSAIN, JM
आयकरअपीलसं./ I.T.A. No. 4092/Mum/2012
(निर्धारणवर्ा / Assessment Year: 2008-09)
SHL (INDIA) P. LTD. DCIT 3(3)
51, THE ARCADE, WORLD बिधम/ AAYAKAR BHAVN,
TRADE CENTRE, CUFFE Vs. MUMBAI
PARADE, MUMBAI
Mumbai.
स्थायीलेखासं ./ जीआइआरसं ./ PAN/GIR No. AADCS2982D
&
आयकरअपीलसं./ I.T.A. No. 4419/Mum/2012
(निर्धारणवर्ा / Assessment Year:2007-08)
DCIT 3(3) SHL (INDIA) P. LTD.
AAYAKAR BHAVN, 51, THE ARCADE,
बिधम/
MUMBAI WORLD TRADE
Vs. CENTRE, CUFFE
PARADE, MUMBAI
Mumbai.
स्थायीलेखासं ./ जीआइआरसं ./ PAN/GIR No. AADCS2982D
अपीलाथीकीओरसे/ Appellant by : Sh. R. Murlidhar
प्रत्यथीकीओरसे/Respondentby : Sh. V. Justin
सुनवाईकीतारीख/
: 26/09/2017
Date of Hearing
घोषणाकीतारीख /
: 06/12/2017
Date of Pronouncement
2
ITA No, 4092 & 4419/Mum/2012
SHL (INDIA) P. LTD.
आदे श / O R D E R
Per Shri Sandeep Gosain, Judicial Member:
These cross appeals filed by the assessee as well as revenue are against the order of Commissioner of Income Tax (Appeals)-7 Mumbai dated 24.02.12 for 2008-09.
2. Since all the issues involved are common, therefore, they have been clubbed, heard together and a consolidated order is being passed for the sake of convenience and brevity.
ITA No. 4092/Mum/2012 (AY 2008-09)3. First of all we take up assessee's appeal in ITA No. 4092/Mum/2012 for assessment year 2008-09 as lead case.
4. As per the facts of the present case, the assessee is engaged in the business of manpower recruitment & management consultancy. The return of income for the year under consideration was electronically furnished on 29.09.08 disclosing total income at Rs. 93,94,226 /- under normal provisions of the I.T. Act. The book profit of Rs. 43,41,407/- was computed under of provisions of section 115JB of the I.T. Act. The return was 3 ITA No, 4092 & 4419/Mum/2012 SHL (INDIA) P. LTD.
processed u/s 143(1) of the I.T. Act. Subsequently, the case was selected for scrutiny and after serving statutory notice, the order of assessment was completed u/s 143(3) of the I.T. Act thereby making additions /disallowance. While framing the order of assessment, the AO noticed that there was increase in the expenditure of license fee and technology support and break up and all the expenses are related with associate concern.
5. Aggrieved by the order of AO, assessee preferred appeal before Ld. CIT(A) and Ld. CIT(A) after considering the case of both the parties partly allowed the appeal of the assessee.
Aggrieved by the order of Ld. CIT(A), the assessee as well as revenue have filed their respective appeals. However at present, we are dealing with the appeal filed by the assessee.
6. At the very outset, Ld. AR drawn our attention to the application filed by the assessee for admission of additional evidence and the same are reproduced below:-
Application for admission of additional evidence The Applicant craves leave to rely on the following additional evidences during the hearing of the appeal.4
ITA No, 4092 & 4419/Mum/2012 SHL (INDIA) P. LTD.
1. Ground I - Disallowance of expenditure claimed by the Company on account of license fees.
1.1. The Applicant had submitted a copy of the agreement dated 01 December 2004 entered into by it with SHL UK (please refer to pages 46 - 80 of Paper Book I) before the Hon'ble CIT(A) vide submission dated 13 August 2011 (please refer to pages 35 --45 of Paper Book I). This has been duly discussed by the Hon'ble C11(A) at page number 19 of its order dated 24 February 2012. The Hon'ble CIT(A) has stated in his order that the aforesaid agreement is "not compiçtely authenticated" as the person named Mr. DP (the name of the person being Mr. David Price) has signed on behalf of the Applicant Company as well as other entities included in the agreement.
1.2. The Applicant wishes to put forth before the Hon'ble Bench that the above mentioned point was never put forth by the Hon'ble CIT(A) to the Applicant during the course of the appellate proceedings.
Accordingly, the Applicant was never granted an opportunity to provide its explanation / information on it. the Applicant wishes to respectfully submit the following documents evidencing that Mr. David Price has signed the agreement under discussion on behalf of the Applicant Company in the capacity of its director. Further, he was also a director in SHL (UK) Ltd. and hence the agreement was signed by him on behalf of SHL (UK) Ltd. as well.
a) Minutes of the board meeting on 12 September 2003 wherein Mr. David Price is appointed as director of SHL (India) Pvt. Ltd.
b) Minutes of the board meeting on 29 July 2005 wherein Mr. David Price resigned as director of SHL (India) Pvt. Ltd.5
ITA No, 4092 & 4419/Mum/2012 SHL (INDIA) P. LTD.
c) Documentary evidence (Form 288a filed with the Companies House, UK) for appointment of Mr. David Price as Director of SI-IL (UK) Ltd. and other group entities.
d) Documentary evidence (Form 288b filed with the Companies House, UK) for resignation of Mr. David Price as Director of SHL (UK) Ltd.
1.3. It is respectfully submitted that the aforesaid documents will show that Mr. David Price has duly signed the agreement entered into on 01 December 2004 on behalf of SHL (UK) Ltd as well as the Applicant along with other group entities in his capacity of director in such companies. Hence, the contention of the Hon'ble CIT(A) that the agreement is "not completely authenticated" as the same is signed by Mr. David Price on behalf of the Applicant company as well as different other entities, is factually incorrect and erroneous.
1.4. The Hon'ble CIT(A) has alleged that the expenditure towards license fees of Rs. 51,88,352 (being 5 percent of gross sales per annum) "is also not in consonance with the said agreement" and "the percentage of working is not found to be based on as enumerated in the said agreement".
1.5. The Applicant submits that the said point was never discussed during the course of the hearing before the Hon'ble CIT(A) and hence the Applicant had no opportunity to provide any working or explanation. The Applicant respectfully submits the reconciliation statement showing the working of the license fees payment with the amount debited to the profit and loss account for the year (enclosed at page 7A ). It is respectfully submitted that the allegation of the Hon'ble CIT(A) that payment of license fee "is also not in consonance with the said agreement" and "the percentage of working is not found to be based on as 6 ITA No, 4092 & 4419/Mum/2012 SHL (INDIA) P. LTD.
enumerated in the said agreement" is completely baseless.
1.6. The Applicant has explained before the learned AO (refer pages 31 to 33 and pages of Paper Book --I) as well as before the Hon'ble CIT(A) (refer pages 36 to 45 and pages 85 to 92 of Paper Book --I) vide its various submissions that the services have been rendered by the group entities against which the license fees and the technology support charges have been incurred by the Applicant. However, these explanations have been rejected by the learned AO as well as Hon'ble crr(A) and thereby disallowing the entire expenditure of license fees and the technological support charges. To further substantiate the Applicant's submission that various services are being rendered by the group entities against which the license fees or technological support charges or regional recharges are incurred by the Applicant, the Applicant wishes to submit the following:
a) A copy of sample contract entered into with one of the customers of the Applicant Company along with the standard terms and conditions (customer information sanitised for confidentiality purposes).
b) Sample copies of certain reports generated out of personality assessments.
Further, the Applicant wishes to submit information / details available in public domain i.e. the website of Applicant (www.cebglobal.com)
a) Overview of business of the Applicant company in India.
b) Details of various practice tests available online on the web portal.
7ITA No, 4092 & 4419/Mum/2012 SHL (INDIA) P. LTD.
c) Screenshots of one of the sample test available online on the website of the Applicant along with the sample assessment report.
It is respectfully submitted that the aforesaid documents will enable the Hon'ble Tribunal to properly appreciate the submissions of the Applicant with regards to its business operations.
2. Ground II - Disallowance of expenditure claimed by the Company on account of technological support charges and subscription.
2.1. The Hon'ble CIT(A) had noted that the expenditure towards technology support charges of Rs. 1,46,08,103 has been apportioned to the Applicant Company considering the head count in India to have taken as
15. However, because the list of employees submitted by the Applicant company is only 14, he held that the entire expenditure could not be allowed. The Hon'ble CIT(A) never gave the Applicant an opportunity to explain why the number of employees has reduced from 15 to 14 and how this has a bearing on the allowability of the expenditure. In this regard, the Applicant wishes to state that one of the employees might have left the organisation during the year, the exact details of which are not available with the Applicant.
2.2. Further, during the course of the proceedings before the Hon'ble CIT(A), it was explained that the difference in the technology support charges was majorly on account of one-time charges incurred towards implementation of ERP software being SUN accounting systems and Salesforce.com (refer page 40 of Paper Book I). To support this contention, the Applicant wishes to submit a sample of the email correspondence between the personnel of SHL UK Ltd to various users of the accounting package (including India) evidencing the information / usage of the 8 ITA No, 4092 & 4419/Mum/2012 SHL (INDIA) P. LTD.
function 'account balance enquiry' in the SUN accounting system (enclosed at pages ig--255.
3. For Ground I. II and III i.e. for disallowance of license fees, technology support charges and subscription and regional recharge : Regarding the orders of the AO, TPO and DRP for the subsequent years:
3.1. In AY 2012-13, the department has accepted that SHL Group Limited (the parent company of SHL (UK) Ltd.) has rendered various intra-group services such as IT services, business support services including legal, finance and human resource services, and R&D services to the Applicant along with the grant of the license to market, distribute, rent and deliver the SHL Solutions to client in India to the Applicant.
3.2. The profile of the Applicant has been described as follow by the TPO in the order dated 21 December 2015 passed for AY 2012-13:
Taxpayer's profile, The Assessee, as per TP Study report, provides Sill products (psychometric test) and solutions (`SHL Solutions') to the client in India in various industries viz., banking, Insurance, Retail, manufacturing, etc., and also perform R&D and business support. The assessee does not own any of the IF associates with the SHL solutions to its clients. The assessee also provides product consulting, training, one-to-one assessment and group assessment through qualified psychologist which includes science-based assessments, benchmark data, technologies and consultancy services to help organisation assess, select and develop the right people for the right roles.
[Please refer para 3 page 1 of the Transfer Pricing Order] 9 ITA No, 4092 & 4419/Mum/2012 SHL (INDIA) P. LTD.
The limited dispute relevant for AY 2012-13 is with regard to the arm's length price paid by the Applicant to the group companies.
3.3. It is submitted that the department has accepted in AY 2012-13 that the Applicant has received services from its group entities is a relevant factor which has to be considered for AY 2008-09 because the fundamental facts have remained the same.
3.4 The Applicant craves leave to refer to and rely upon the following documents:
The order of the Transfer Pricing Officer dated 21 December 2015 for AY 2012-130 0(4 The final Assessment order dated 31 January 2017 for AY 2012-
13.
It is submitted that the said document could not be relied upon before the Hon'ble CIT(A) because it was received subsequent to the passing of the Order by the Hon'ble CET(A) for AY 2008-09.
3.5. For the sake of completeness, it is stated that in AY 2013-14 and AY 2014-15.the learned AO has disallowed the payments by the Applicant to its group concerns without appreciating that in AY 2012-13, similar payments were treated as allowable expenditure by the AO and there is no change in the facts and circumstances of this case.
PRAYER:
It is humbly submitted that the aforesaid documents go to the root of the matter and are necessary to be considered by the Hon'ble Tribunal to appreciate the dispute between the parties in the proper perspective. The Applicant prays that the Hon"ble Tribunal may be pleased to admit the aforesaid evidence and decide the appeal.10
ITA No, 4092 & 4419/Mum/2012 SHL (INDIA) P. LTD.
The Hon'ble bench is requested to take the above on record and oblige.
For SHL (India) Private Limited
7. On the other hand Ld. DR opposed the said application.
8. We have heard the counsels for both parties and we have also perused the material placed on record as well as orders passed by the revenue authorities. We find that Ld. CIT(A) in its order has held that the agreement dated 01.12.14 entered into by the assessee with SHL UK is 'not completely authenticated' as the person named Mr. D.P. (Mr. David Price) has signed on behalf of the applicant company as well as other entities include in the agreement.
Now by virtue of the present application, assessee wants to place on record the agreement evidencing that Mr. David Price had signed on behalf of the applicant company in the capacity of director. The assessee also wants to prove that Mr. David Price was also director of SHL UK.
11ITA No, 4092 & 4419/Mum/2012 SHL (INDIA) P. LTD.
Apart from the above, the assessee also wants to place on record the documents mentioned in the application i.e. minutes of board meetings, documentary evidences, copy of sample contract, sample copy of certain reports to show and prove that Mr. David Price had signed the agreement on behalf of the applicant company in the capacity of its director. Apart from that Mr. David Price was also director in SHL UK Ltd and hence the agreement was signed by him on behalf of SHL UK Ltd. as well.
The assessee also placed on record the documents in the shape of orders of transfer pricing officer (TPO) dated 21.12.15 for AY 2012-13 and final assessment order dated 31.01.17 in order to prove that the revenue has already accepted in AY 2012- 13 that the assessee has received services from its group industries. In this respect, it was submitted that the above orders of TPO and final assessment order, etc could not be relied upon before Ld. CIT(A) as the same were received subsequently to the passing of the orders of Ld. CIT(A) for the AY 2008-09.
After considering the factual as well as legal proposition, we are of the considered view that the documents mentioned in the application are material and necessary to decide the 12 ITA No, 4092 & 4419/Mum/2012 SHL (INDIA) P. LTD.
controversy in question effectively. Therefore we allow the application filed by the assessee for admission of additional evidence.
Considering the interest of justice, we set aside the order of Ld. CIT(A) and remit the matter back to the file of AO with a direction to verify the documents filed by the assessee and thereafter pass afresh order assessment. It is needless here to mention that before passing the order of assessment, the AO shall provide sufficient opportunity of hearing to the assessee. Before parting, we may make it clear that our decision to restore the matter back to the file of AO shall in no way be construed as having any reflection or expression on the merits of the dispute, which shall be adjudicated by the AO independently in accordance with law.
9. In the net result, the appeal filed by the assessee stands allowed for statistical purposes.
13ITA No, 4092 & 4419/Mum/2012 SHL (INDIA) P. LTD.
Now we take up I.T.A. No. 4419/Mum/ 2015 (AYs 2008- 09 filed by revenue for decision:-
10. Since we have already decided the appeal of ITA No. 4092/Mum/2012 for the AY 2008-09 and set aside the order of Ld. CIT(A) and restore the matter back to the file of AO for passing afresh order of assessment after considering the documents produced by the assessee in additional evidence.
Therefore following our own decision in ITA No. 4373, we apply the same findings in the present appeal and in order to maintain judicial consistency which is applicable mutatis mutandis in the case of the assessee.
11. In the net result, both the appeals filed by the assesses as well as revenue is allowed Order pronounced in the open court on 6th December, 2017 Sd/- Sd/-
(Rajendra) (Sandeep Gosain)
ले खासदस्य / Accountant Member न्याययकसदस्य / Judicial Member
मुंबई Mumbai;यदनां कDated : 06.12.2017
Sr.PS. Dhananjay
14
ITA No, 4092 & 4419/Mum/2012
SHL (INDIA) P. LTD.
आदे शकीप्रनिनलनपअग्रे नर्ि/Copy of the Order forwarded to :
1. अपीलाथी/ The Appellant
2. प्रत्यथी/ The Respondent
3. आयकरआयुक्त(अपील) / The CIT(A)
4. आयकरआयुक्त/ CIT- concerned
5. यवभागीयप्रयतयनयध, आयकरअपीलीयअयधकरण, मुंबई/ DR, ITAT, Mumbai
6. गार्ड फाईल / Guard File आदे शधिुसधर/ BY ORDER, उप/सहधयकपंजीकधर .
(Dy./Asstt.Registrar) आयकरअपीलीयअनर्करण, मुंबई/ ITAT, Mumbai