Income Tax Appellate Tribunal - Delhi
Towers Watson India Pvt. Ltd.,, Gurgaon vs Dcit, Gurgaon on 2 April, 2019
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IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI 'I-1' BENCH,
NEW DELHI
BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER, AND
SHRI SANDEEP GOSAIN, JUDICIAL MEMBER
ITA No. 1710/DEL/2016
[A.Y 2011-12]
M/s Tower Watson India Pvt Ltd Vs. The Dy. C.I.T
2nd Floor, Tower B, Unitech Business Circle - 4(1)
Park, South City -1, Gurgaon
Sector - 41, Gurgaon
PAN: AAACG 2955 K
(Applicant) (Respondent)
Assessee By : Shri Nageswar Rao, Adv
Shri Parth, Adv
Department By : Shri Sandeep Kumar Mishra, Sr.DR
Date of Hearing : 11.03.2019
Date of Pronouncement : 02.04.2019
ORDER
PER N.K. BILLAIYA, ACCOUNTANT MEMBER,
This appeal by the assessee is preferred against the order dated 29.02.2016 framed u/s 143(3) r.w.s 144C(13) of the Income-tax Act, 1961 [hereinafter referred to as 'the Act' for short], pertaining to A.Y 2011-12.
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2. The sum and substance of the grievances of the assessee are as under :
i) Re-characterising the subsidy income as income received from provision of services;
(ii) Rejection of Comparable Uncontrolled Price [CUP] method applied by the assessee as the Most Appropriate Method [MAM] for bench marking the international transactions pertaining to provision of consultancy services, thereby applying Transactional Net Margin Method [TNMM] as the MAM.
(iii) Alternatively, the assessee pleads that the Assessing Officer erred in inappropriately allocating the costs between AEs vis a vis non AEs by taking such subsidy as a part of turnover pertaining to transaction with AEs and allocating the entire costs on the basis of that turnover.
(iv) In the alternative, the assessee pleads that the TPO/ Assessing Officer erred in not providing search process used for selecting comparable companies for the year under consideration.
(v) On corporate tax issues, the assessee is aggrieved by the addition of Rs. 5,30,305/- in respect of unreconciled entries in the AIR information.3
3. Briefly stated, the facts of the case are that the appellant company is engaged in the business of HRD consultancy. The India operations provide expert advice on human capital and financial management, specializing in the areas of human capital consulting, employee benefits and insurance.
4. The international transactions reported during the year as per Form 3 CEB are as under:
Transaction 'SI. Amount of Method No transaction in Rs. adopted 1 Purchase of publications (Paid/Payable) 98,619 CUP Provision of consulting Services 2,45,64,401 CUP 2 rendered (Received/Receivable) Provision of consulting Services availed 3 (Paid/Payable) 67,54,487 CUP Service Agreement: Income
5 (Received/Receivable) 7,70,23,981 Commission on Publication Sold 6 (Received/Receivable) 12,51,725 7 Reimbursements received 4,92,357 8 Allocations (Received/Receivable) 47,58,125 9 Allocations (Paid/Payable) 17,27,812 10 Reimbursements (Paid/Payable) 8,93,427 Total 11,30,38,342 4
5. During the year under consideration, the assessee has rendered services to its AE as well as availed services from the AE. The nature of such services relate to consulting services referred to various core services as undertaken by Watson Wyatt Group of Companies, which are post-retirement benefits, actuarial valuation etc. Watson Wyatt India renders these services to both - Associated Entities and Unrelated Parties. Services were rendered to Associated Entities in order to service certain client projects overseas.
6. The assessee has also received services from its AE for projects in India or other assistance provided by its AE. Services are rendered by Associated Entities for India in order to service certain projects in India. The appellant is a loss making company since its inception and has got accumulated losses of Rs. 20,19,72,132/- upto 31/03/2009. It was facing financial constraints and like in the past, it has been financially supported by way of interest-free loans from Watson Wyatt Tokyo or Other Associated Companies.
7. As part of its global policy, the Top Company Management of Watson Wyatt Worldwide Inc. decided to support its financially loss making subsidiaries. Pursuant to such a decision, a 'Service Charge 5 Agreement' was executed on 30.06.2006 by all countries concerned and its parent 'WW USA' decided to provide adequate funding to its structurally loss subsidiaries. Since the appellant company meets the definition of 'structurally loss subsidiary' it received subsidy for which no actual services were being rendered by the company and the billing is done and money is received purely to support the presence of this multi-national group in India. The assessee received Rs. 7,70,23,981/- on this count and no method was used to bench mark because it is the claim of the assessee that no third party would give like subsidy to unrelated party.
8. Even before us, the ld. AR vehemently stated that this is nothing but exgratia payment made by the AE to support structural loss of the appellant, which is in line with the service charge agreement executed on 30.06.2006.
9. The ld. DR strongly opposed to this contention of the assessee and stated that the service charge subsidy received from the AE is inseparably linked to the provision of services rendered by the assessee to its AE. It is the contention of the ld. DR that the purpose of the payment of this subsidy is to maintain the strategic presence of 6 WW Global Network. It is the say of the ld. DR that clause 1.1 clearly mentions, "each subsidiary shall provide the WW Global Network all or any of the services outlined in Schedule 1 to the agreement.
10. We find that the Schedule 1 to the agreement which is at page 315 of the paper book lists out the services which the subsidiaries are bound to provide for receiving the service charges and reads as under:
" The subsidiary agrees to provide all or some of the following services to the WW Global Network:
1. Maintenance and provision of highly skilled and experienced Associates to work on multi-national projects and proposals for any member of the WW Global Network in an advisory and consultancy capacity.
2. Maintenance and provision of any other service that Watson Wyatt & Company, Watson Wyatt Limited or another member of WW Global Network might require the subsidiary' to provide from time to time for the benefit of the WW Global Network. "7
11. The ld. DR further stated that the method of computation of service charge, as detailed in the Schedule 2 of the agreement clearly reveals that the amount of service charge is linked to the cost incurred by the assessee for rendering services to its AEs. The ld. DR once again reiterated that the service charges are not only inseparably linked to the services rendered by the assessee to its AEs. Therefore it is part and parcel of the total revenue received from AEs.
12. We have given a thoughtful consideration to the orders of the authorities below and have gone through the service charge agreement. As per Schedule 1 of the agreement, which is exhibited hereinabove, it can be seen that the subsidy received by the appellant company is directly linked to the outcome of this agreement by which the appellant company agrees to provide all or some of the services listed in Schedule 1 hereinabove. No doubt, the assessee has shown this service charge subsidy in its profit and loss account, but the same has been shown separately without any bench marking. It is true that no third party would have paid such a subsidy to an unrelated party but the fact of the matter is that the appellant did receive this service charge subsidy which is directly related to services provided by it to its AEs. In our considered opinion, this service agreement income of Rs. 8 7,70,23,981/-, is part of provision of consulting services rendered by the assessee and, therefore, we do not find any error in clubbing service agreement income with provision of consulting services of Rs. 2,45,64,401/-. This ground is accordingly dismissed.
13. Next grievance relates to application of MAM.
14. The assessee has applied CUP as MAM for bench marking provision of consulting services.
15. The assessee has bench marked this transaction under CUP. The bench marking is based upon invoice billed by the appellant towards consultancy services rendered. The appellant company has compared the invoice raised on its AE with the invoices raised on other group entities. The appellant has also compared the invoices raised on its AE with the invoices raised on few Indian entities. The TPO has dismissed this claim of the assessee on the ground that the comparison of the invoice has been done with AEs and third parties located in different geographical locations and the charges depend upon the nature and technical difficulties of the services rendered. The TPO further 9 observed that the assessee has not furnished any of the technical description of the services rendered to the AE and non-AEs.
16. Before us, the ld. AR stated that the comparables as per the CUP may be external or internal comparable. It is the say of the ld. AR that internal comparables have a more direct and closer relationship to the transaction under review than the external comparables. The ld. AR explained that the assessee is dealing in professional expertise of human resource services and time is recorded based on Rate Per Hour Methodology and, therefore, there are no external comparables available for such a business.
17. The ld. AR further stated that even if the assessee tried to obtain rates per hour of various consultants, which are competitors, the same would not be made available due to confidentiality of the rates. In view of the non-availability of external comparables, the internal comparables are most appropriate for bench marking transaction under CUP method. The ld. AR further pointed out that even as per the Associate Consulting Agreement, which governs sharing of work between all AEs, it has been clearly mentioned that the price to be 10 charged to the AEs should be same as charged to the unrelated parties. Therefore, CUP is MAM and not TNMM applied by the TPO.
18. The ld. DR stated that for using CUP method to benchmark international transactions, strict similarity of services rendered to AE and Unrelated Enterprise (URE) must be established by the assessee on the basis of reliable evidences. The assessee has failed to establish such strict similarity of functions. The ld. DR further stated that there is no scope of services rendered/work done for AEs. The ld. DR further stated that no details or description of services actually rendered during the year to the AEs and URE have been provided. Therefore, it cannot be stated that similar services were rendered to AEs and non AEs. It is the say of the ld. DR that even the method of billing is different for AEs and UREs. The AEs have been billed on the time spent basis, whereas the UREs have been billed on predetermined fixed rate. The ld. DR concluded by stating that due to lack of evidences, TNMM is the MAM.
19. We have heard the rival submissions and have given thoughtful consideration to the orders of the authorities below qua the issue. Facts on record reveal that the time is recorded on rate per hour 11 methodology. The AEs are charged on the basis of hours spent on services rendered to them. Though the UREs are also charged on hourly rate basis, but due to cut-throat competition in this line, pre- determined fixed rate is billed and if the hourly rate is higher than the pre-determined fixed rate, then difference is written off. In our considered opinion, this is a standard practice followed by the enterprises providing similar consultancy services. Further, we find that the assessee has to assume total risk when it is providing services to the UREs whereas when the services are provided to AEs, the risk is that of the AEs whose client has been serviced.
20. We do not find any force in the contention that the evidences are not brought on record. The invoices raised to AEs and non AEs are exhibited in the paper book. Whether the same person is providing service to both the AEs and non AEs is irrelevant, so as long as the evidences of services provided are available. The services are provided by different set of personnel, having different qualification and it would not be justifiable to ask for invoices of the same person who has provided service to AEs and also to non AEs. 12
21. Moreover, considering the nature of services provided by the assessee, we do not find the geographical locations relevant because the consulting services provided by the assessee would remain the same whether the service receiver is located in 'X' country or 'Y' country as long as service provider is in India. Our view is fortified by the fact that the price charged to non AEs, [irrespective of geographical location] is comparable to the price that is charged to Indian entities. Moreover, rate per hour for consultant, once decided, does not change irrespective of country and whether it is related or unrelated entity.
22. As mentioned elsewhere, risk and responsibility to the client is direct in Indian non AEs and for AEs the overall responsibility to the client is of the AE itself. In this line, work is assigned to different team members [whether relating to AE or non AE] based on the specific job skill-set requirement, available resources and overall deliverable expected, meaning thereby, that if the work requires more time of a junior consultant, he/she is assigned that work whereas if a senior's assistance is required, they devote time. Accordingly, a proper team composition is there to take care of the nature and technical difficulties of the project. Even the OECD Guidelines of July 13 2010 preferred internal CUP over other methods, since it bears a more direct and closer relationship to the transaction under review.
23. Considering the totality of the facts in the light of invoices relating to AEs and non AEs exhibited in the paper book, we are of the considered opinion that CUP is the MAM and has been rightly adopted by the assessee to bench mark its transactions for provision of consulting services rendered. This grievance is, accordingly, allowed.
24. The other related issues become academic in nature.
25. On corporate tax issues, the Assessing Officer is directed to decide this issue afresh after verifying the AIR information with detailed submissions made by the assessee. The Assessing Officer is further directed to allow eligible brought forward business losses and unabsorbed depreciation as per provisions of law. These issues are treated as allowed for statistical purposes.
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26. In the result, the appeal of the assessee in ITA No. 1710/DEL/2016 is partly allowed.
The order is pronounced in the open court on 02.04.2019.
Sd/- sd/-
[SANDEEP GOSAIN] [N.K. BILLAIYA]
JUDICIAL MEMBER ACCOUNTANT MEMBER
Dated: 02nd April, 2019
VL/
Copy forwarded to:
1. Appellant
2. Respondent
3. CIT
4. CIT(A)
5. DR
Asst. Registrar,
ITAT, New Delhi
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Date of dictation
Date on which the typed draft is placed before the dictating Member Date on which the typed draft is placed before the Other Member Date on which the approved draft comes to the Sr.PS/PS Date on which the fair order is placed before the Dictating Member for pronouncement Date on which the fair order comes back to the Sr.PS/PS Date on which the final order is uploaded on the website of ITAT Date on which the file goes to the Bench Clerk Date on which the file goes to the Head Clerk The date on which the file goes to the Assistant Registrar for signature on the order Date of dispatch of the Order