Income Tax Appellate Tribunal - Kolkata
M/S. Development Consultants (P) Ltd., ... vs Dcit, C Ircle- 11, Kolkata, Kolkata on 15 February, 2017
IN THE INCOME TAX APPELLATE TRIBUNAL "C", BENCH KOLKATA
BEFORE SHRI N.V.VASUDEVAN, JM & DR. A.L.SAINI, AM
आयकर अपील सं./ITA No.1591/Kol/2010
( नधा रण वष / Assessment Year :2005-2006)
Dy.Commissioner of Income Vs. Development Consultants
Tax, Cir-11, Kolkata, Ltd.,24B, Development House,
P-7, Chowringhee Square, Park Street, Kolkata-700016
Kolkata-700069
थायी ले खा सं . /जीआइआर सं . /PAN/GIR No. : AAACD 8900 F
(अपीलाथ /Assessee) .. ( यथ / Respondent)
AND
Cross Objection No.144/Kol/2010
( नधा रण वष / Assessment Year :2005-2006)
Development Consultants Vs. Dy.Commissioner of Income Tax,
Ltd.,24B, Development Cir-11, Kolkata,
House, Park Street, P-7, Chowringhee Square,
Kolkata-700016 Kolkata-700069
थायी ले खा सं . /जीआइआर सं . /PAN/GIR No. : AAACD 8900 F
(अपीलाथ /Assessee) .. ( यथ / Respondent)
राज व क ओर से /Revenue by : Shri G.Mallikarjuna, CIT, DR
नधा रती क ओर से /Assessee by : Shri Kamal Sawhney, Advocate
सन
ु वाई क तार ख / Date of Hearing : 31/01/2017
घोषणा क तार ख/Date of Pronouncement 15/02/2017
आदे श / O R D E R
Per Dr. Arjun Lal Saini, AM:
The captioned appeal filed by the Revenue and the Cross Objections filed by the Assessee, pertaining to assessment year 2005-2006, are directed against the order passed by the ld. Commissioner of Income Tax (Appeals)-XII, Kolkata, in Appeal No.1033/XII/Cir-11/09-10, dated 27.05.2010, which in turn arises out of an assessment order passed by the Assessing Officer (AO) Under Section 143 (3) of the Income Tax Act 1961, (hereinafter referred to the 'Act'), dated 17.12.2008.
2. The Appeal filed by the Revenue and Cross Objection filed by the Assessee relate to the same assessee, same assessment year, common issues 2 ITA No.1591/Kol/2010 CO No.144/Kol/2010 M/s Development Consultants Ltd.
involved, therefore, these have been clubbed and heard together and a consolidated order is being passed for the sake of convenience and brevity.
3. Brief facts of the assessee company of M/s Development Consultants Private Limited ( hereinafter referred to as 'DCPL'), are that the assessee is a closely held private limited company and parent company of the Development consultants (DC) group. The DCPL has subsidiaries in the Bahamas and United States of America ( New York and Philadelphia). Moreover, the DCPL has a 100% subsidiary in India- Data Core (India) Private Limited. The DCPL is the focal point for all design engineering activities. It directly executes all domestic projects and Group operations assigned to it. The DCPL is an India-based, transactional Consultig Engineering Group. It renders concept-through- completion services covering planning, technology selection and development, design engineering, procurement assistance, construction supervision and project management services, for implementing diverse core-sector and high- technology projects around the world.
The DCPL has a wholly owned subsidiary in the Bahamas, M/s Development Consultant International Limited (DCIL). The DCIL in turn has a wholly owned subsidiary in the United States of America, M/s AMDC Inc. USA. The AMDC Inc. USA has two wholly owned subsidiaries in USA, Data-Core Systems Inc. (Data- Core US) and The Kuljian Corporation (TKC). The DCPL (assessee) also has a wholly owned subsidiary in India M/s Data-Core (India) Private Limited (Data- Core India). The DCPL (assessee) entered into the following international transactions during the previous year relevant to Assessment Year 2005-06 with three related parties, DClL,TKC and Data-Core USA all of which are Associated 3 ITA No.1591/Kol/2010 CO No.144/Kol/2010 M/s Development Consultants Ltd.
Enterprises (AEs) within the meaning of section 92A of the Income-tax Act, 1961.
The DClL provides engineering services to its clients who are engaged in turnkey projects at various industrial sites. It acts as a distributor undertaking marketing activities. The DCPL has TP study report, prepared by PWC ( big 4 audit firm) and analysis made by the assessee in its TP study report to justify the arm's length nature of its international transactions and the TP study report recommended the CPM and the TNMM method as the most appropriate methods.
The details of the international transactions entered into by the assessee during the assessment year under consideration are as follows:
Associated Description of Class of Value (in Rs.) Enterprise transaction transaction DCIL Engineering Drawing & Service 28,054,019 design Services TKC Engineering Drawing & Service 4,531,613 Design Services Deputation Service 4,768,494 Data-Core Reimbursements Reimbursement 41,219,082 US
4. Analysis done by TP study report of the assessee in respect of engineering drawing & design Services provided to DClL & TKC are as follows:
DClL provides engineering services to its clients who are engaged in turnkey projects at various industrial sites. It acts as a distributor undertaking marketing activities and downloads all the design and engineering work generated by it to the assessee. TKC is engaged in provision of engineering services to its customers most of which are in the Middle East. In certain cases, TKC does not have the necessary technical expertise to complete the contract and such portion of the job are subcontracted to assessee for which TKC pays fees to the assessee based on man- hours utilised. The work carried out by assessee is in the nature of engineering services like technical drawing, design etc. 4 ITA No.1591/Kol/2010 CO No.144/Kol/2010 M/s Development Consultants Ltd.
The assessee used the internal Cost Plus Method (CPM) to justify this class of international transaction. The assessee provides such services not only to its AE's but also to third parties. The margins (Gross Profit/Direct & Indirect cost of production or 'GP/DICOP') earned by the assessee in transactions with DClL & TKC was compared with margins earned by it in transactions with third parties. The results of analysis have been provided in the table below:
DESCRIPTIOIN TKC DCIL OTHERS
Design Design Design
Income 45.32 280.54 324.52
Less:Salary 3.57 27.28 56.37
Less Direct travel 35.90 52.64
Less Direct Cost
Total direct & indirect cost 3.57 63.18 109.01
Gross Margin 41.75 217.36 215.51
GP/DICOP 1169.47% 344.03% 197.70%
Less:Overheads 5.20 39.72 82.07
Operating profit 36.55 177.64 133.44
Total Cost 8.77 102.90 191.08
OP/TC 416.76% 172.63% 69.83%
The results of the analysis show that the arm's length GP /DICOP earned by the assessee in transactions with third parties is 197.70% whereas the assessee earned a profitability at the gross level of 1169.47% on its international transactions with TKC and 344.03% on its international transactions with DClL in the relevant year. This establishes that the international transactions with AEs in relation to Engineering Drawing & Design Services are at arm's length.
5. While making assessment, the Assessing Officer observed that since the assessee company has International transactions with the associated enterprises therefore, he referred the matter to Transfer Pricing Officer, u/s, 92 of the Income Tax Act.
The Transfer Pricing Officer while passing order U/s 92CA (3) of the Income Tax Act,1961, stated that "since in the earlier years, similar adjustments have been made, in this year also, the same adjustments are being proposed. By applying the markup on costs 5 ITA No.1591/Kol/2010 CO No.144/Kol/2010 M/s Development Consultants Ltd.
percentage earned from the unrelated parties to the costs incurred in relation to the international transactions with the AEs, the ALP is determined in the following manner.
Determination of ALP
X Arms Length Mark-up% 198%
Y Direct and Indirect Costs incurred by 356.13
assessee in India for rendering services
to AEs
Z-X x Y Arms Length Mark-up on costs 705.14
ALP= Y+Z Arms Length Price of the services 1061.27
rendered to the AEs
Thus, the arm's length price for services rendered should have been Rs.1061.27 lakhs as against Rs.705.14 lakhs disclosed by the assessee. Accordingly, the adjustment to the prices of international transactions will be Rs.275.54 lakhs. Accordingly an addition of Rs.275.54 lakhs is to be made to the total income."
The Transfer Pricing Officer, determined the Arm's Length Price for the International transactions with assessee's Associated Enterprises to be at Rs. 1061.27 lakhs in place of Rs.705.14 lakhs claimed by the assessee company. Accordingly, on the basis of order of Transfer Pricing Officer, an addition of Rs. 275.54 lakhs is made to the total income of assessee.
However, we noticed that the difference between the arm`s length price computed by the Transfer Pricing Officer at Rs.1061.27 and arm`s length computed by the assessee at Rs.705.14 comes at Rs. 356.13 Lakhs [1061.27- 705.14], therefore, the transfer pricing adjustment should be at Rs. 356.13 lakhs instead of Rs. 275.54 lakhs. Since the Revenue is not an appeal before us for this arithmetical error therefore, we just highlighted this error as a passing reference and it does not have any impact on our adjudication process, because the issue before us, in this appeal, is to decide whether Cost Plus method (CPM) or Resale Price Method (RPM) would be applicable to the assessee. 6 ITA No.1591/Kol/2010 CO No.144/Kol/2010
M/s Development Consultants Ltd.
Based on the order of the Transfer Pricing Officer U/s 92CA(3) of the I.T. Act, the Assessing Officer made the addition of Rs. 275.54 lakhs.
6. Aggrieved from the order of the Assessing Officer, the assessee filed an appeal before the ld. Commissioner of Income Tax (Appeals). The Commissioner of Income Tax (Appeals), observed that since the assessee company was engaged in similar/identical business activities with its same AEs in the assessment years 2003-04 & 2004-05 and the facts of the case were duly covered, in assessee`s own case, in the appeal no. ITA Nos. 79 & 80/Kol/2008, Hon'ble ITAT 'A' Bench, Kolkata for the assessment years 2003-2004 & 2004- 2005 and the AO had not brought on record any new facts, based on the ITAT judgement. Accordingly, the ld CIT(A) directed to the AO to compute ALP on a transaction-by-transaction basis.
The ld CIT(A) also supported the judgment of the Hon`ble ITAT in assessee`s own case (supra), for international transactions of the assessee with associated enterprises, namely, The Kuljian Corporation, USA and Datacore Systems Inc. USA. The ld CIT(A) confirmed the analysis done by the assessee in connection with international transactions of rendering of engineering, drawing and design services and deputation of employees by the assessee to its AE's namely The Kuljian Corporation, USA and international transactions with Data core systems Inc, USA on the basis of Hon'ble ITAT's decision that the transfer pricing analysis should be done from the Indian side considering the assessee as the tested party.
Regarding international transactions of the assessee with its AE 'DClL', the ld CIT(A) agreed with the Hon'ble ITAT judgment (supra) with some modification, 7 ITA No.1591/Kol/2010 CO No.144/Kol/2010 M/s Development Consultants Ltd.
stating that Resale Price method is appropriate method for the purpose of calculation of ALP in respect of such international transactions. However, Ld. CIT (A) deviated from the judgment of Hon`ble ITAT Kolkata in assessee`s own case (supra), stating that if there are differences between the accounting periods, accounting policies etc. of the assessee and its AE's, the price at which services are resold by the AE is not commensurate with the price at which services obtained from the assessee. Therefore, Ld.CIT(A) held that if ALP should be computed for the purpose of determining the total income of the assessee on the basis of sale of DCIL it shall distort the result and whole purpose of the provisions of the Act in relation to computation of ALP shall be defeated. Therefore, ALP shall be computed on the basis of RPM as directed by the Hon'ble ITAT but by using a contemporary resale price which is generally allowed in developed countries by applying the margin earned by the DCIL on resale of the services obtained from the assessee. Based on the above observations the ld CIT(A) computed the ALP as follows:
(a).First of all Ld. CIT (A) worked out the GP/Cost ratio @ 159.67% by taking the sale and cost of sale of DCIL in US $, as under:
Margin of the DClL is computed by the CIT(A), as under:
Sale of DCIL US $ 12,20,404
Cost of sale (sub contracting fees) US $ 4,69,984
GP/Cost = [( 12,20.404-4,69,984)/4,69,984]* 1 00= 159.67
(b)Thereafter, the ld CIT(A) computed the ALP in respect of transactions with the DClL based on Re-Sale Price Method (RPM ) as under:
Sale Value of the assessee (Cost of sale for DClL) 280.54 lacs Add: Gross margin earned by the DClL on sale of such 447.94 lacs services @159.67% on cost Sales (Cost + Gross margin) 728.48 lacs GP/Sales 61.49% Arm's Length GP/Sales 25.69% 8 ITA No.1591/Kol/2010 CO No.144/Kol/2010 M/s Development Consultants Ltd.
Arm's Length GP/Sale considering 5% 26.97%
Arm's Length Gross margin 196.47 lacs
Arm's Length cost of sale 532.01 lacs
Deficit in fees paid to the assessee by DCIL 251.47 lacs
( 532.01 -280.54)
This way, the ld.CIT (A) calculated the ALP at Rs. 251.47 lakhs and he, accordingly, directed the AO to calculate the ALP at Rs. 251.47 lakhs, in respect of international transactions with DClL. The ld.CIT(A), also sated that the ALP determined in respect of the international transactions of the assessee with AE's namely The Kuljian Corporation, USA and Datacore System INC, USA by the assessee is correct. However, the ALP determined by the assessee in respect of DClL is not correct and accordingly ALP should be recomputed at Rs.251.47 Lakhs, as explained in the above cited computation, done by the ld.CIT(A). In fact, the ld. AR for the assessee submitted before us that ld.CIT(A) has disregarded and deviated from the judgment of Ho`ble ITAT Kolkata, in assessee`s own case (supra), so far the ALP of transactions of DCIL are concerned. The ALP in respect of DCIL transactions, computed by the ld.CIT(A) neither falls in CPM method nor in RPM method.
7. Therefore, being aggrieved from the order of the ld.CIT(A), the Revenue is in appeal before us, and Assessee is in cross objections before us. The grounds of appeal taken by the Revenue and the Cross Objections raised by the Assessee are as follows:
Grounds of Appeal Taken by the Revenue
1.On the facts and circumstances of the case whether the ld. CIT(A) was correct in rejecting the transfer price determined by the TPO as per Cost Plus Method and in its place applying the Resale Price Method.
Cross-Objections raised by the Assessee 9 ITA No.1591/Kol/2010 CO No.144/Kol/2010 M/s Development Consultants Ltd.
1. That on the facts and in the circumstances of the case, the appellant erred in not appreciating that the Ld. CTT (Appeals) was correct in rejecting the transfer price determined by the Ld. Transfer Pricing Officer by applying the Cost Plus Method and accepting the Resale Price Method applied by the respondent in determining transfer price.
2. That on the facts and in the circumstances of the case, the Ld. CIT (Appeals) erred in directing the Ld. Assessing Officer to compute an adjustment of Rs. 25,147,000/- to the international transactions of the assessee with its Associated Enterprise (AE), namely, Development Consultant International Ltd. without considering the mode of computation adjudicated by the Honb'le jurisdictional Appellate Tribunal in the respondent's own case, namely ITA NO.79 & 80/Kol/2008 [(2008) 23 SOT 455 (KOL.)).
3. That on the facts and in the circumstances of the case, the Ld. ClT (Appeals) erred in not appreciating that the aforesaid verdict of the Hon,ble jurisdictional Appellate Tribunal is binding on the authorities below.
4. Without prejudice to grounds (1) to (3) above, the Ld. CTT (Appeals) erred in ignoring the 'Economic Analysis' with respect to the international transaction between the assessee company and Development Consultant International Ltd., contained in the "Analysis of Transfer Pricing Arrangement with Associated Enterprises - Fiscal year ending 31st March, 2005", which was filed before the Ld. Transfer Pricing Officer during the course of assessment proceeding under Section 92CA (3) of the Income-tax Act.
5. That the assessee company craves leave to add to and/or alter, amend, modify or rescind the grounds hereinabove before or at the hearing of this appeal.
8. The grounds of appeal taken by the Revenue and the cross objections raised by the assessee relate to the same issue, that is, whether cost plus method (CPM) or Resale Price Method ( RPM) should be applied to determine the Arm`s Length Price of transactions with DCIL. The Solitary grievance of the Revenue is that the cost plus method (CPM) should be applied to determine the Arm`s Length Price (ALP) whereas the solitary grievance of the Assessee is that Re-Sale Price Method (RPM) should be applied to compute the ALP.
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8.1 Before us, the Ld DR for the Revenue has submitted that the assessee has himself accepted the Cost Plus Method (CPM) and Transactional Net Margin Method (TNMM) as most appropriate method in his Transfer Pricing Study Report (TP-Study Report), submitted by him before the Transfer Pricing Officer (TPO). Therefore, the CPM method recommended by the TPO is the appropriate method, which is based on the TP study report of the assessee. This way, the ld DR for the Revenue has strongly defended the order passed by the ld. TPO. He also pointed out that order passed by the ld CIT(A) is not in accordance with the TP study report of the assessee therefore, it should be dismissed and TPO order should be restored.
8.2 Before us, the Ld. AR for the assessee, has submitted that the A.O/TPO has not followed the ITAT's decision in the appellant's own case on a similar issue and instead computed the ALP in respect of international transactions of the assessee by selecting the cost plus method wherein the TPO compared all the related party transactions without considering the transaction separately as held by the ITAT. The Hon'ble Income Tax Appellate Tribunal- Kolkata, in the appeal No.ITA Nos.79 & 80/Kol/2008, in the case of the assessee for assessment years 2003-04 & 2004-05, had concluded that in relation to the engineering drawing and design services rendered by the assessee to its associated enterprise DClL, the DClL should retain the gross margins as determined through the benchmarking exercise. In accordance with the ruling of the Hon'ble Tribunal, the assessee submitted the analysis of its international transactions with the associated enterprise DClL relevant for assessment year 2005-06. The Ld. AR for the assessee submitted that M/s Development Consultants International Limited ('DClL') is a wholly owned 11 ITA No.1591/Kol/2010 CO No.144/Kol/2010 M/s Development Consultants Ltd.
subsidiary of the assessee in Bahamas. It is engaged in providing engineering services to its clients who are engaged in turnkey projects at various industrial sites. Since, DClL does not have the necessary technical expertise it downloads all the design and engineering work it generates to the assessee. As per the ld AR for the assessee the margin earned by DClL for the year ended 31st December 2004 are provided in the table below:
(Amount in US Dollars) Profit Level Indicator-DCIL Year Ending Dec 2004 Particulars Turnover 1,220,404 Cost of Sales (COS) Sub Contracting fee 469,984 Salary 103,615 Travelling 1,056 Total COS 574,655 Gross Profit 645,749 GP/Sales 52.91% The assessee computed the arm's length GP/ Sales of the comparable companies at 25.69% in his analysis. The arm's length GP/ Sales of the comparable companies at 25.69% is lower than the GP/Sales of DClL for the year ended 31st December 2004 of 52.91% explained in the table above, which clearly indicates that DClL has retained more than the arm's length margin. However, the TPO while passing the order for the assessment year under consideration chose to ignore order of Hon'ble Tribunal and following its own approach which is not justifiable. The ld AR for the assessee mentioned that verdict of jurisdictional Tribunal is binding on the authorities below i.e. the assessing and the appellant authority as per the judgment of Hon`ble Supreme Court in the case of Union of India vs. Kamalakshmi Finance Limited - AIR 1992 SC 711.12
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The Ld AR for the assessee also pointed out that ld CIT(A) accepted the judgment of the Hon`ble ITAT with some modification and computed the ALP in respect of transactions with the DClL based on Re-Sale Price Method (RPM ) as under:
Sale Value of the assessee (Cost of sale for DClL) 280.54 lacs Add: Gross margin earned by the DClL on sale of such 447.94 lacs services @159.67% on cost Sales (Cost + Gross margin) 728.48 lacs GP/Sales 61.49% Arm's Length GP/Sales 25.69% Arm's Length GP/Sale considering 5% 26.97% Arm's Length Gross margin 196.47 lacs Arm's Length cost of sale 532.01 lacs Deficit in fees paid to the assessee by DCIL 251.47 lacs ( 532.01 -280.54) This way, the ld.CIT (A) calculated the ALP at Rs. 251.47 lakhs and he, accordingly, directed the AO to calculate the ALP at Rs. 251.47 lakhs, in respect of international transactions with DClL. The above cited method adopted by the ld CIT(A) to compute the ALP, neither falls in CPM Method nor in RPM Method. The Gross profit on sales of DCIL has been applied by ld.CIT(A) as Gross profit on cost of sales @ 159.67% which is wrong. Because, the Gross profit percentage on sales can not be applied for Gross profit percentage on cost therefore, the method adopted by the ld CIT(A) to compute ALP is wrong and against the provisions of Rule 10B(1) (b) of the Income Tax Rules, which are reproduced below:
"Rule 10B. Determination of arm's length price under section 92C.
(1) (b) resale price method, by which,-13
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(i) the price at which property purchased or services obtained by the enterprise from an associated enterprise is resold or are provided to an unrelated enterprise, is identified;
(ii) such resale price is reduced by the amount of a normal gross profit margin accruing to the enterprise or to an unrelated enterprise from the purchase and resale of the same or similar property or from obtaining and providing the same or similar services, in a comparable uncontrolled transaction, or a number of such transactions;
(iii) the price so arrived at is further reduced by the expenses incurred by the enterprise in connection with the purchase of property or obtaining of services;
(iv) the price so arrived at is adjusted to take into account the functional and other differences, including differences in accounting practices, if any, between the international transaction 66 [ or the specified domestic transaction] and the comparable uncontrolled transactions, or between the enterprises entering into such transactions, which could materially affect the amount of gross profit margin in the open market;
(v) the adjusted price arrived at under sub-clause (iv) is taken to be an arm's length price in respect of the purchase of the property or obtaining of the services by the enterprise from the associated enterprise;"
The ld AR for the assessee pointed out that ALP computed by the CIT (A) by following contemporary resale price method is not in accordance with Rule 10B (1) (b) of the Income Tax Rules. The said Rule 10B (1) (b) defines the Resale Price Method, which is applicable to the assessee under consideration but the ld CIT (A) ignored it and applied his own method which is not applicable in Indian scenario. Therefore, ld CIT(A) has deviated from the accepted method in India.
Hence, ld AR for the assessee has requested the Bench to direct the ld.CIT(A) to follow the method accepted by the Hon`ble Tribunal in assessee`s own case (supra).
8.3. Having heard the rival submissions, perused the material available on record, we are of the view that there is merit in the submissions of the assessee, as the propositions canvassed by the ld. AR for the assessee are supported by the judgment of Hon`ble ITAT Kolkata in assessee`s own case (supra). As ld AR 14 ITA No.1591/Kol/2010 CO No.144/Kol/2010 M/s Development Consultants Ltd.
for the assessee has rightly pointed out that method adopted by the ld.CIT(A) to compute ALP neither falls in CPM Method nor in RPM Method.The Hon'ble Income Tax Appellate Tribunal-Kolkata, in the appeal No.ITA Nos.79 & 80/Kol/2008, in the case of the assessee for assessment years 2003-04 & 2004- 05, had concluded that in relation to the engineering drawing and design services rendered by the assessee to its associated enterprise DClL, the DClL should retain the gross margins as determined through the benchmarking exercise. In accordance with the ruling of the Hon'ble Tribunal, the assessee submitted to the TPO, the analysis of its international transactions with the associated enterprise DClL relevant for assessment year 2005-06, which is given below:
SI. No. Particulars Reference Amount
(USD)
l. Actual Sales 1,220,404
2. Actual Cost of Sales 574,654
3. Actual Gross Profit (1-2) 645,750
4. GP/Sales 3/1 52.91%
5. Arm's Length 25.69%
6. Arm's length Gross 1 *5 313522
7. Arm's length Cost of 1-6 906,882
8. Arm's length Cost of 7*95% 861,538
Sales considering 5%
9. Deficit in fees paid to 8-2 286,884
Hence, based on the above analysis, the appellant offered the amount of adjustment to the international transaction with DCIL at USD 286,884. No doubt, the ld CIT (A) had confirmed the applicability of Re sale Price Method (RPM) as the most appropriate method, but with some modification. The ld CIT(A) observed that accounting period of assessee (DCPL) and accounting 15 ITA No.1591/Kol/2010 CO No.144/Kol/2010 M/s Development Consultants Ltd.
period of DCIL (subsidiary) is different. Therefore, the ld.CIT(A) did the modification in the approach adopted by the Hon`ble ITAT in assessee`s case (supra), which is not justifiable. While doing the modification, the ld CIT(A) had only gone by the assumption that since Sale figure for January 2005 to March 2005 was not available therefore, he arrived at some sort of a hypothetical figure by applying the contemporary resale price method wherein he tried to correlate the sale price of DCPL for March ending with cost price of DCIL for December ending and determine the gross profitability for March ending to compute the value of adjustment of Rs.251.47 lakhs, as follows:
Margin of the DClL is computed by the CIT(A), as under:
Sale of DCIL US $ 12,20,404
Cost of sale (sub contracting fees) US $ 4,69,984
GP/Cost = [( 12,20.404-4,69,984)/4,69,984]* 1 00= 159.67 Adjustment of Rs.251.47 lakhs computed by the ld CIT(A), as under
Sale Value of the assessee (Cost of sale for DClL) 280.54 lacs Add: Gross margin earned by the DClL on sale of such 447.94 lacs services @159.67% on cost Sales (Cost + Gross margin) 728.48 lacs GP/Sales 61.49% Arm's Length GP/Sales 25.69% Arm's Length GP/Sale considering 5% 26.97% Arm's Length Gross margin 196.47 lacs Arm's Length cost of sale 532.01 lacs Deficit in fees paid to the assessee by DCIL 251.47 lacs ( 532.01 -280.54) We observed that the above cited method adopted by the ld CIT(A), to compute the ALP is not accepted because of the following reasons: (1). First of all, as we have seen that ld CIT(A) has ignored the provisions of Rule 10B (1) (b) of the Income Tax Rules, which contain the definition of RPM. 16 ITA No.1591/Kol/2010 CO No.144/Kol/2010
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(2).The ld.CIT(A) referred the contemporary resale price and stated that this method is internationally recognized in developed countries. The ld CIT(A) failed to explain that how and why his method is recognized internationally, he failed to bring any evidence and citation on record.
(3) The Ld.CIT (A) failed to demonstrate that why Rule 10B(1) (b) of the I.T. Rules is not applicable to the assessee under consideration. The only grievance of the ld CIT(A) is that the accounting period of the assessee (DCPL) is different from the DCIL. To address this issue of ld CIT(A) the assessee has submitted the following computation before us ( which is as per the Judgment of Hon`ble ITAT Kolkata in assessee`s own case.):
Determining DCIL gross margin from March ending financials Particulars Label 31 March 05 USD Sale of DCIL M 1,337,869 Cost of sale N 637,590 GP O=M-N 700,279 GP/Sales P=O/M 52.34% Arm's length GP/Sales H 25.69% Arm's length gross margin Q=M*H 343.699 Arm's length cost of sale R=M-Q 994,170 Amount of adjustment S=R-N 356,580 Average exchange rate in FY T 43,750 2004-05* Amount of adjustment (in INR) K=I*J 15,600,375 To address, CIT(A)'s reservations, the audited financial data for the period April 04 to March 05 is available now and the same should be considered for determination of arm's length price. Basically, the ld CIT(A) adopted his own approach because data for the period January 2005 to March 2005 ( for three Months) were not available before him because he did not give an opportunity to the assessee to produce the same.17
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We are of the view that in any event the ld CIT(A) can not apply his own method except the method given in Rule 10B (1) (b) of the I.T. Rules. However, for difference in accounting period the TPO/AO may examine the figures for the period January 2005 to March 2005.
As per the additional evidence produced by the ld AR for the assessee, before us, (financials of DCIL from January 2005 to March 2005), since these figures of financials of DCIL from January 2005 to March 2005 were not available before the TPO/AO. Therefore, for difference in accounting period, the TPO/AO may examine the figures for the period January 2005 to March 2005 of DCIL. Therefore, we direct the TPO/AO to examine the figures of the financials of DCIL for the period January 2005 to March 2005 and compute the ALP as per the method suggested by the Hon`ble ITAT in assessee`s own case and submitted by the assessee before us. We direct TPO/AO only to examine the figures of the financials of DCIL from January 2005 to March 2005, and if he finds the figures of the financials of DCIL true and correct, he should accept the computation of the assessee as furnished by the assessee before us, which is reproduced by us above.
Therefore, based on the factual position, we direct the AO/TPO to accept the computation as given before us, (after verification of figures of January 2005 to March 2005), which is based on the method accepted by the Hon`ble ITAT, Kolkata in assessee`s own case (supra).
8.4 In the result, the appeal filed by the Revenue is dismissed and cross objections filed by the assessee are also allowed for statistical purposes. 18 ITA No.1591/Kol/2010 CO No.144/Kol/2010
M/s Development Consultants Ltd.
Order pronounced in the open court on this 15/02/2017.
Sd/- Sd/-
(N.V.VASUDEVAN) (DR. A.L.SAINI)
या यक सद य / JUDICIAL MEMBER लेखा सद य / ACCOUNTANT MEMBER
कोलकाता /Kolkata; $दनांक Dated 15/02/2017
काश 'म)ा/Prakash Mishra, न.स/ PS
आदे श क त ल प अ े षत/Copy of the Order forwarded to :
1. अपीलाथ / The Assessee-DCIT, Cir-11, Kolkata
2. यथ / The Respondent.-Development Consultants Ltd
3. आयकर आय* ु त(अपील) / The CIT(A), Kolkata.
4. आयकर आय* ु त / CIT
5. +वभागीय त न.ध, आयकर अपील य अ.धकरण, कोलकाता / DR, ITAT, Kolkata
6. गाड फाईल / Guard file.
स या+पत त //True Copy// आदे शानस ु ार/ BY ORDER, उप/सहायक पंजीकार (Asstt. Registrar) आयकर अपील%य अ&धकरण, कोलकाता / ITAT, Kolkata