Income Tax Appellate Tribunal - Pune
Rehau Polymers Pvt. Ltd.,, Pune vs Asistant Commissioner Of Income-Tax,, on 5 March, 2018
आयकर अपील
य अ धकरण "बी" यायपीठ पण
ु े म ।
IN THE INCOME TAX APPELLATE TRIBUNAL "B" BENCH, PUNE
ी अ नल चतव
, लेखा सद!य, एवं ी $वकास अव!थी, या यक सद!य के सम&
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BEFORE SHRI ANIL CHATURVEDI, AM AND SHRI VIKAS AWASTHY, JM
आयकर अपील सं. / ITA No. 519/PUN/2014
नधा(रण वष( / Assessment Year : 2009-10
Rehau Polymers Pvt. Ltd.
Khed- Pabal Road, Holewadi,
Rajguru Nagar, Tal : Khed,
Pune-410 505
PAN : AAACR7521E
......अपीलाथ / Appellant
बनाम / V/s.
The Assistant Commissioner of Income Tax,
Circle-10,
Pune.
......
यथ / Respondent
Assessee by : Shri Nikhil Pathak
Revenue by : Ms. Nirupama Kotru
सन
ु वाई क तार ख / Date of Hearing : 05.12.2017
घोषणा क तार ख / Date of Pronouncement : 05.03.2018
आदे श / ORDER
PER VIKAS AWASTHY, JM
This appeal by the assessee is directed against the assessment order dated 13.01.2014 passed under section 143(3) r.w.s 144C(13) of the Income Tax Act, 1961 (hereinafter referred to as 'the Act') for the assessment year 2009-10.
2. The brief facts of the case as emanating from the record are: The assessee company is engaged in the business of manufacturing, distribution and marketing of polymer products and providing technical, sales and other services in respect of such 2 ITA No. 519/PUN/2014 A.Y. 2009-10 products. The assessee also operates as an indenting agent in India for its overseas group companies. The assessee is a 100% subsidiary of Frankische Plastiks, Gmbh, Germany. The assessee is dealing in the plastic/polymer products with trade mark Rehau. During the period relevant to assessment year under appeal, the assessee entered into various international transactions with its group entities. To determine ALP of the transactions, the assessee applied cost plus method. The Transfer Pricing Officer accepted the method adopted by the assessee to bench mark its all international transactions except cost of sharing of intra group services. The Transfer Pricing Officer held that assessee has not been able to show as to what benefit the assessee has derived from services rendered by Rehau Pte. Ltd, Singapore. The assessee had made payment to the tune of Rs.4,36,74,768/- in respect of intra group services rendered by its AE during the relevant year. The Transfer Pricing Officer applied CUP to arrive at ALP of the transaction and determined the cost of intra group services at 'Nil'. Based on the adjustments made by the Transfer Pricing Officer vide order dated 18.01.2013, the Assessing Officer passed draft assessment order.
3. Aggrieved by the adjustment made by the Transfer Pricing Officer and the draft assessment order, the assessee filed objections before Dispute Resolution Panel (DRP). The DRP rejected the contentions of assessee and upheld the addition made by Transfer Pricing Officer. The Assessing Officer accordingly, made addition of Rs. 4,36,74,768/- on account of transfer pricing adjustment in the income returned by assessee. Now the assessee is in appeal before Tribunal assailing the said addition made by the Assessing Officer.
4. The assessee has raised following grounds in appeal assailing the order of Assessing Officer.
"1. On the facts and circumstances of the case and in law, the Dispute Resolution Panel ('DRP') erred in confirming the action of the Assessing Officer ('AO')/ Transfer Pricing Officer ('TPO') of determining the arm's length price of the international transaction pertaining to payments made to Associated 3 ITA No. 519/PUN/2014 A.Y. 2009-10 Enterprises('AE') for Intra Group Services ( Technical, Marketing & Sales and Administrative services) as 'Nil' instead of Rs.4,36,74,768/-.
The Appellant prays that the aforesaid adjustment be deleted.
2. The DRP erred in confirming the action of the AO/TPO of rejecting the aggregation of international transactions approach adopted by the Appellant and thereby evaluating the international transaction pertaining to Intra Group Services separately.
The Appellant craves leave to add, amend, alter, modify and/or substitute, all or any of the above grounds of appeal."
5. Shri Nikhil Pathak appearing on behalf of the assessee submitted that the assessee is a subsidiary of Frankische Plastiks, Gmbh, Germany. The assessee is engaged in the business of manufacturing, distribution and marketing of polymer products and providing technical, sales and other services in respect of such products. The assessee has received various intra group services viz. administrative, technical, marketing and sales from its AE, Rehau Pte. Ltd., Singapore. The intra group services have been rendered by the overseas company in accordance with the terms and conditions of the agreement dated 05.01.1998 at page No. 133 of the paper book. Thereafter, supplementary agreements were executed from time to time keeping all conditions set out in the main agreement intact except for change in allocation and percentage of the fee charged for the services rendered. The supplementary/amended agreements are at page No. 142 to 155 of the paper book. The ld. AR submitted that during the period relevant to assessment year under appeal, the assessee has entered into various international transactions. The Transfer Pricing Officer accepted the bench marking of all the transactions except cost of sharing of intra group services. Although, the method is stated to be cost plus method for determination of ALP but in fact it is Transactional Net Margin Method (TNMM). The Transfer Pricing Officer disallowed amount paid to Rehau Pte Ltd., Singapore for the reasons:-
(i) The assessee has not received any benefit.
(ii) There was no need to pay third party for such services.4 ITA No. 519/PUN/2014
A.Y. 2009-10 The Transfer Pricing Officer determined the cost of services as 'Nil'. The DRP sought remand report from the Transfer Pricing Officer.
6. The ld. AR of the assessee submitted before us that the agreement under which Rehau Pte Ltd., Singapore is charging for services was first executed in January, 1998. Till 2005, Rehau Pte Ltd., Singapore did not charge any amount for rendering the services, though the assessee started receiving services immediately after execution of agreement. Thereafter, Rehau Pte Ltd., Singapore started charging for services rendered and the assessee claimed the same as expenditure. The Department accepted the same and raised no question on such payments. The assessment year under appeal is the first year when the Transfer Pricing Officer has raised objections qua the payments made in lieu of services rendered by Rehau Pte Ltd., Singapore.
6.1 The ld. AR referred to the scope of services rendered by Rehau Pte Ltd., Singapore at page No. 135-136 of the paper book. The ld. AR further referred to the rate charged by Rehau Pte Ltd., Singapore for providing marketing and sales and technical services at page No. 144 of the paper book and for administrative services at page No. 146 of the paper book. The ld. AR explained that the intra group services received by assessee can be bifurcated into three segments viz.
(i) Technical Application Department (TAD)
(ii) Marketing & Sales
(iii) Administration cost (Finance, HR, IT and legal Services) The entire expenditure towards TAD is incurred by AE and is allocated to various units on the basis of sales. As regards marketing and administration costs, 50% of the cost incurred by AE is allocated. Marketing cost is allocated on the basis 5 ITA No. 519/PUN/2014 A.Y. 2009-10 of sales of various units and administration cost is allocated on the basis of head count of units.
6.2 The ld. AR submitted that the assessee had furnished several documents before authorities below to substantiate that the services were rendered by Rehau Pte Ltd., Singapore. The ld. AR referred to sample E-mails/correspondence to indicate that technical services, marketing & sales services and administrative services were provided by Rehau Pte. Ltd, Singapore. The said details are at page No. 240 to 817 of the paper book. The DRP sought remand report from the Transfer Pricing Officer in respect of voluminous documents furnished by the assessee before DRP. The remand report is at page No. 818 and 823 of the paper book. A perusal of the remand report would show that the Transfer Pricing Officer has not pointed any defect in the documents furnished by the assessee and no adverse comments have been made by the Transfer Pricing Officer in respect of the documents running in more than 600 pages. Thus, the objection raised by the Transfer Pricing Officer that documents are not exhaustive to indicate the services rendered by AE does not survive. In remand report, the Transfer Pricing Officer admitted that services were rendered by Rehau Pte Ltd, Singapore. However, the Transfer Pricing Officer defended his action by observing that even if services were rendered, they were in the nature of duplicate services and the assessee has not produced evidence to justify the price paid for such services and no independent enterprise would have paid any separate consideration for such services.
6.3 The ld. AR submitted that Rehau Pte Ltd., Singapore is charging cost to cost for rendering services to its group concerns. There is no mark upon the cost. One of the objections raised by the authorities below is that there has been decrease in the profits. The reason for decreasing profits is not connected with the services rendered by Rehau Pte Ltd., Singapore. The factor responsible for decline in profits are "notional currency fluctuation loss due to year end adjustment, provision for doubtful 6 ITA No. 519/PUN/2014 A.Y. 2009-10 debts, increase in depreciation of plant and machinery due to installation of new production line in financial year 2007-08. Whereas, there is no corresponding increase in turnover during Financial Year 2008-09 as expected after installation of additional production line".
6.4 The ld. AR submitted that charging of fees on basis of budget sales is accepted method of allocation as per OECD guidelines. The ld. AR referred to OECD guidelines with respect to consideration for intra group services. The ld. AR contended that the case of the assessee falls in Para 7.14 of chapter VII of the OECD guidelines. Further, in para 7.25 OECD has clarified that the cost can be allocated on turnover basis or head count basis. The ld. AR further referred to method of determination of ALP under OECD guidelines and allocation of turnover. In respect of increase in payment for services rendered by Rehau Pte Ltd., Singapore, the ld AR submitted that it is due to :-
(i) Increase in sale as compared to budget allocation.
(ii) The invoices received in August, 2008 includes payments for services rendered during the period January to March, 2008 i.e payments made in the Financial Year 2008-09 includes three months of prior period expenses.
To support his submissions, ld. AR referred to tax invoices at page No. 92 of the paper book.
6.5 The ld. AR contended that as a result of services rendered by the Rehau Pte Ltd., Singapore in various segment, the turnover of the assessee company substantially increased over the period of time. The ld. AR furnished chart/giving details of sales and profitability trend of the assessee over the years starting from assessment year 2006-07 to assessment year 2015-2016.
7ITA No. 519/PUN/2014
A.Y. 2009-10 6.6 The ld. AR contended that the authorities below have travelled beyond their jurisdiction in questioning the benefit derived by assessee from the services rendered by AE. Benefit test is not to be applied by TPO while determining ALP of intra group services. In support of his submission, the ld. AR placed reliance on the following decisions:-
(i) Dresser-Rand India Pvt Ltd Vs. Addl CIT. Range 6(2) Mumbai, in ITA No. 8753/Mum/2010
(ii) CIT Delhi Vs. EKL Appliances Ltd., in ITA No.1068/2011 & ITA No. 1070/2011.
(iii) Tata Johnson Controls Automotive Limited Vs. DCIT Circle-7 Pune, in ITA No. 1450/PN/2011.
(iv) Avery Dennison ( India) P. Ltd. Vs. ACIT (OSD) CIT-1, New Delhi, in ITA No. 4869/Del/2014.
(v) DCIT. Circle 10(1) New Delhi Vs. Danisco (India) Pvt. Ltd., in ITA No. 2444/Del/2012.
6.7 The ld. AR further pointed that in assessment year 2006-07, the Transfer Pricing Officer had allowed payments made by assessee to Rehau Pte Ltd., Singapore for rendering similar services. The ld. AR referred to the order of Transfer Pricing Officer dated 28.07.09 for assessment year 2006-07 at page No. 155 to 158 of the paper book ( legal compliation).
7. On the other hand, Smt. Nirupama Kotru representing the Department vehemently defended the findings of authorities below in disallowing payments made by assessee to Rehau Pte Ltd. Singapore. The ld. DR submitted that all the transactions for such payments are to be seen independently and are not to be clubbed with other transactions. The allocation of expenditure is without any scientific basis. The agreement furnished by the assessee between Rehau Pte. Ltd, Singapore and its various group entities is self-serving document. The most appropriate method applied by assessee to benchmark it Intra Group Services transaction is also defective. The TPO applied cup and determined the cost as 'Nil'. 8 ITA No. 519/PUN/2014
A.Y. 2009-10 The sales of the assessee have substantially increased in later year's which shows the allocation of services. There has been a categoric finding by the Transfer Pricing Officer and the DRP that benefit of services have not been proved. Further, the services rendered by Rehau Pte Ltd., Singapore are not distinguishable and quantified. Ld. DR in support of his submission placed reliance on the following decision:-
(i) Cranes Software International Ltd. Vs. Dy. CIT, 152 ITD 737 (Bang-Trib)
(ii) Deloitte Consulting India (P) Ltd. Vs. Dy. CIT, 137 ITD 21 (Mum-Trib)
(iii) Knorr Bremse India Ltd. Vs. Asst. CIT, 56 SOT 349, (Delhi-Trib)
8. The ld. AR controverting the submissions made on behalf of Department submitted that the TPO erred in applying CUP without selecting suitable comparables. Further, there is no duplication of services as has been alleged by the Revenue. The assessee is receiving these services as part of intra group service agreement and the assessee does not have any in house arrangement for such services. The assessee has been receiving these services from its AE at budgeted cost. The ld. AR reiterated that benefit test is not to be applied in view of the decision of Hon'ble Delhi High Court. The ld. AR further pointed that the decision rendered in the case of Cranes Software International Ltd. Vs. Dy. CIT (supra.) and Deloitte Consulting India (P.) Ltd. v. Dy. CIT (supra) are distinguishable on facts and the decision in the case of Knorr Bremse India Ltd. Vs. Asst. CIT (supra.) has been overruled by Hon'ble P & H High Court in assessee's own case in ITA No.182/2013 for assessment year 2007-08 decided on 06.11.2015.
9. We have heard the submissions made by representatives of rival sides and have perused the orders of Authorities below. We have also considered various documents and decisions referred to by the ld. AR during the course of his submissions. The primary reason raised for disallowing assessee's payment for intra- group services by TPO and DRP is that assessee has not been able to substantiate 9 ITA No. 519/PUN/2014 A.Y. 2009-10 from the documents, the need of services rendered and benefit derived from the services provided by AE.
10. The case of the assessee is that assessee has paid cost for sharing intra-group services, provided by the parent company i.e. Rehau Pte. Ltd. Singapore. The parent company provided various services which inter alia includes marketing, recruitment and technical support etc. to the group companies in Asia-Australia region. The services provided by AE is invoiced as management consultancy services. The ld. AR has drawn our attention to the agreement entered into by Rehau Pte. Ltd. Singapore with its various group entities including assessee for providing management consultancy services. The said agreement is placed at 133 to 138 of the paper book. For the sake of completeness, the relevant extract of the agreement indicating 'Areas of responsibility' of the parent company and details of 'Invoicing of Costs' are reproduced herein below:
"I. Areas of responsibility
1. Head Office Singapore (HO sin, contractor) provides the following services on behalf of the clients to the Sales Offices (S/Os) reporting to HO sin or directly to their customer (recipients of services).
The Technical Applications Department (TAD) and the Marketing & Sales Department (M&S) of the contractor are responsible ,for providing technical support with customer applications in the Asian and Australian sales offices' (S/Os) territories and for providing sales support in the interest of marketing.
2. The TAD is the contact between the customer and the appropriate REHAU department of the client. Its main duties are:
- The technical support of the sales officers in acquisition of new business.
- Product development (realization of customer specification, changes and adjustments).
- Technical evaluation of quotation request (feasibility analysis, TVK).
- Preparation of technical documentation (product description, technical terms of delivery, restriction of product applicability).
- Transformation of product requirements into production procedures and processes.
- Supervision of schedules and coordination between the specialized REHAU departments.
- Cooperation with the central quality management.
- Processing of customer claims related to technical issues.
- Support of the plant.
3. The M & S is responsible for market and customer related sales support, the coordination of sales management, planning and controlling in the interest of the client. Its main duties are:
- Key account management.10 ITA No. 519/PUN/2014
A.Y. 2009-10
- Development and implementation of new programs.
- Coordination of key actions in product implementation, market research and research of competitors.
- Involvement in regional adverting programs in coordination with sales offices/advertising department.
- Development and implementation of distribution concepts and sales directions.
- Establishment of terms and conditions of sale including discount and incentive programs.
- Observation and gathering of competitor's activities in the respective S/O area.
- Participation and coordination between REHAU specialized departments in order to optimize new business opportunities and to maintain high customer satisfaction
- Supervision and control of sales activities of the S/O employees according to the approved distribution and marketing concepts of the client.
- Reviewing and analyzing of the REHAU statistics concerning order flows, invoiced sales etc. II. Invoicing of Costs:
1. The efforts of the departments TAD and M & S are product-related. The clients include the costs for these services in the sales price of the Individual articles, except when the services result from a direct request by the individual S/O for a specific customer support.
Costs of the TAD and M & S departments of HO sin, which are not charged directly to the sales offices, are allocated to the individual REHAU production companies according to the production companies forecasted shares of delivers (valued at plant sales prices) into the S/O territories of Asia and Australia. Costs are to be billed monthly.
The payment terms correspond with the internal REHAU group directions for services.
2. The year-end settlement of costs of the TAD and M & S departments have to show the detailed costs incurred, reduced by the costs directly billed to the S/Os. The clients are entitled to review the basis and the detail of the invoiced amounts. If outside parties are used for their review, they are paid for by the clients." We find that agreement has been extended /renewed from time to time by execution of Supplementary Agreement with variation in the percentage of cost allocation. The relevant extract of the supplementary agreement relevant to assessment year under appeal indicating cost allocation is reproduced as under:
"II. To allocate 5% of the total HOSIN-admin costs, based on following proportion ratio effective 2006.
- P.T. REHAU, Indonesia 18.67%
- REHAU Polymers Pvt. Ltd 20.80%
- REHAU Polymers (Suzhou) Co. Ltd., China 15.47%
-Rehau Limited, Bangkok 45.07%
_________________
Total 100.00%
III. Above proportion uses actual headcount as at 1st, January 2008.
Singapore, the 22 Sept., 2009 India, the 22 Sept. 2009
REHAU Pte. Ltd. REHAU Polymers Pvt. Ltd."
11
ITA No. 519/PUN/2014
A.Y. 2009-10
11. The payments have been made by assessee to its parent company for providing various services including technical support, marketing & sales and administrative support in terms of the aforesaid agreement. The assessee has furnished voluminous data to substantiate the services rendered by parent company. The same has been furnished before the Tribunal in the form of paper book. However, the Authorities below have brushed aside the same to make addition. A perusal of orders of Authorities below reveals that there is no whisper pointing any defect or short coming in the documents furnished by assessee to substantiate the services provided by parent company.
12. Be that as it may, the Assessing Officer / TPO could not step into the shoes of the assessee to ascertain the need and requirement of the services. The Authorities below have not raised any doubt over the genuineness of the payments made by the assessee to its parent company. The entire emphasis of the TPO/ DRP in rejecting the assessee's claim is the benefit derived from services and need of the services. The Revenue Authorities cannot question the need for services. It should be left to the prudence of assessee to ascertain the need and requirement of services. The task of the Assessing Officer is to determine whether the cost paid for the services to AE is at arm's length or not and to make adjustment, if required. The assessee had made payments to its AE for intra group services at cost. The method for determining ALP has not been disputed by the Authorities below. The TPO merely on surmise has made adjustment by observing that no independent party would have made payment in uncontrolled circumstances for the purported services. Such observation of TPO, subsequently confirmed by DRP are not sustainable to make adjustment in the facts and circumstances of this case. The ld. AR of the assessee has pointed that in assessment year 2006-07, the TPO accepted the payments made to Rehau Pte. Ltd., Singapore by assessee on similar set of facts. This contention of the ld. AR has not been rebutted by the Department. Hence, the impugned order is set aside and appeal of the assessee is allowed.12 ITA No. 519/PUN/2014
A.Y. 2009-10
13. In proceedings before DRP, remand report was sought from TPO on the documents furnished by assessee. In remand report dated 28.10.2013, the TPO has admitted that documentary evidence has been submitted by the assessee. Moreover, the TPO time & again has questioned justification of the payment with reference to benefit received. We are of considered view that questioning the need of having such services from any outside agency by the assessee is beyond purview of Revenue Authorities. In so far as benefit derived from services is concerned, the Authorities below without appreciating the documents furnished by assessee has formed opinion that the assessee has not benefited from services provided by Rehau Pte. Ltd.
Singapore. The Mumbai Bench of Tribunal in the case of Dresser-Rand India Pvt. Ltd.
(supra.) while dealing with the similar controversy has held :
"8. We find that the basic reason of the Transfer Pricing Officer's determination of ALP of the services received under cost contribution arrangement as 'NIL' is his perception that the assessee did not need these services at all, as the assessee had sufficient experts of his own who were competent enough to do this work. For example, the Transfer Pricing Officer had pointed out that the assessee has qualified accounting staff which could have handled the audit work and in any case the assessee has paid audit fees to external firm. Similarly, the Transfer Pricing Officer was of the view that the assessee had management experts on its rolls, and, therefore, global business oversight services were not needed. It is difficult to understand, much less approve, this line of reasoning. It is only elementary that how an assessee conducts his business is entirely his prerogative and it is not for the revenue authorities to decide what is necessary for an assessee and what is not. An assessee may have any number of qualified accountants and management experts on his rolls, and yet he may decide to engage services of outside experts for auditing and management consultancy; it is not for the revenue officers to question assessee's wisdom in doing so. The Transfer Pricing Officer was not only going much beyond his powers in questioning commercial wisdom of assessee's decision to take benefit of expertise of Dresser Rand US, but also beyond the powers of the Assessing Officer. We do not approve this approach of the revenue authorities. We have further noticed that the Transfer Pricing Officer has made several observations to the effect that, as evident from the analysis of financial performance, the assessee did not benefit, in terms of financial results, from these services. This analysis is also completely irrelevant, because whether a particular expense on services received actually benefits an assessee in monetary terms or not even a consideration for its being allowed as a deduction in computation of income, and, by no stretch of logic, it can have any role in determining arm's length price of that service. When evaluating the arm's length price of a service, it is wholly irrelevant as to whether the assessee benefits from it or not; the real question which is to be determined in such cases is whether the price of this service is what an independent enterprise would have paid for the same. Similarly, whether the AE gave the same services to the assessee in the preceding years without any consideration or not is also irrelevant. The AE may have given the same service on gratuitous basis in the earlier period, but that does not mean that arm's length price of these services is 'nil'. The authorities below have been swayed by the considerations which are not at all relevant in the context of determining the arm's length price of the costs 13 ITA No. 519/PUN/2014 A.Y. 2009-10 incurred by the assessee in cost contribution arrangement. We have also noted that the stand of the revenue authorities in this case is that no services were rendered by the AE at all, and that since there is no evidence of services having been rendered at all, the arm's length price of these services is 'nil'. The Dispute Resolution Panel has also confirmed these findings of the Transfer Pricing Officer and the Assessing Officer. However, we have noted that vide letter dated 25th January 2010 (acknowledged to have been received in DRP office on 28th January 2010), the assessee has filed a huge compilation of papers, running into almost three hundred pages, including copies of reports, emails and other documents evidencing the rendering of services. Yet, the DRP simply brushed aside these documents by simply observing that "The DRP has perused the submissions of the assessee and the documents. In view of the DRP, such documents do not prove the receipt of services by the assessee ascertained ( asserted ?) to be provided by its AE, and, accordingly, the action of the AO in treating the cost of such services at zero is confirmed". All these evidences were before the DRP, but there is not even a whisper about what was the nature of these documents, why does the DRP find these documents to be not satisfactory, what is the kind of evidence that was necessary to prove the factum of services having been availed, and what precisely is the reason that these documents cannot be relied upon. The soul of an order is in its reasoning, and unless the reasons for coming to a conclusion in the order are not set out, it is not possible to do a meaningful scrutiny of the order, but we find no reasoning at all in the order passed by the DRP"
[Emphasis by us]
14. The Hon'ble Delhi High Court in the case of CIT Vs. EKL Appliances Ltd. (supra) had occasion to deal with similar issue where legitimacy of expenditure incurred by assessee was under question. The Hon'ble High Court after referring to various decisions sand Para 1.36 to 1.38 of OECD guidelines held:
"21. The position emerging from the above decisions is that it is not necessary for the assessee to show that any legitimate expenditure incurred by him was also incurred out of necessity. It is also not necessary for the assessee to show that any expenditure incurred by him for the purpose of business carried on by him has actually resulted in profit or income either in the same year or in any of the subsequent years. The only condition is that the expenditure should have been incurred "wholly and exclusively" for the purpose of business and nothing more. It is this principle that inter alia finds expression in the OECD guidelines, in the paragraphs which we have quoted above.
22. Even Rule 10B(1)(a) does not authorize disallowance of any expenditure on the ground that it was not necessary or prudent for the assessee to have incurred the same or that in the view of the Revenue the expenditure was unremunerative or that in view of the continued losses suffered by the assessee in his business, he could have fared better had he not incurred such expenditure. These are irrelevant considerations for the purpose of Rule 10B. Whether or not to enter into the transaction is for the assessee to decide. The quantum of expenditure can no doubt be examined by the TPO as per law but in judging the allowability thereof as business expenditure, he has no authority to disallow the entire expenditure or a part thereof on the ground that the assessee has suffered continuous losses. The financial health of assessee can never be a criterion to judge allowability of an expense; there is certainly no authority for that. What the TPO has done in the present case is to hold that the assessee ought not to have entered into the agreement to pay royalty/brand fee, because it has been suffering losses continuously. So long as the expenditure or payment has been demonstrated to have been incurred or laid out for the purposes of business, it is no concern of the 14 ITA No. 519/PUN/2014 A.Y. 2009-10 TPO to disallow the same on any extraneous reasoning. As provided in the OECD guidelines, he is expected to examine the international transaction as he actually finds the same and then make suitable adjustment but a wholesale disallowance of the expenditure, particularly on the grounds which have been given by the TPO is not contemplated or authorized."
[ Emphasis by us] Similar view has been taken by Pune Bench of Tribunal in the case of Tata Johnson Controls Automotive Limited Vs. DCIT (supra.) and by Delhi Bench of Tribunal in the case of Avery Dennison (India) P. Ltd. Vs. ACIT (supra.)
15. A perusal of the Chapter-VII of the OECD guidelines relating to Intra Group Services show that in Para 7.14 OECD has dealt with situations where some activities are centralized in parent company and are made available to group as whole. The relevant extracts of Para-7.14 of OECD guidelines are reproduced herein below:
"7. 14 Other activities that may relate to the group as a whole are those centralised in the parent company or a group service centre (such as a regional headquarters company) and made available to the group (or multiple members thereof). The activities that are centralised depend on the kind of business and on the organizational structure of the group, but in general they may include administrative services such as planning, coordination, budgetary control, financial advice, accounting, auditing, legal, factoring, computer services; financial services such as supervision of cash flows and solvency, capital increases, loan contracts, management of interest and exchange rate risks, and refinancing; assistance in the fields of production, buying, distribution and marketing; and services in staff matters such as recruitment and training. Group service centres also often carry out research and development or administer and protect intangible property for all or part of the MNE group. These type of activities ordinarily will be considered intra-group services because they are the type of activities that independent enterprises would have been willing to pay for or to perform for themselves."
Thus, OECD also recognizes the need for allowability of costs paid to parent company where services are centralized and are provided to group entities by parent company.
16. In view of the facts of the case, various cases laws discussed above & OECD guidelines, we are of considered view that Authorities below have erred in determining cost of Intra Group Services as 'Nil' and making adjustment of 15 ITA No. 519/PUN/2014 A.Y. 2009-10 Rs.4,36,74,768/- in respect of international transactions pertaining to intra group services provided by AE to the assessee.
17. In the result, appeal of the assessee is allowed.
Order pronounced on Monday , the 05th day of March, 2018.
Sd/- Sd/-
(अ नल चतव
ु द
/ANIL CHATURVEDI) ($वकास अव!थी /VIKAS AWASTHY)
लेखा सद य / ACCOUNTANT MEMBER या यक सद य/JUDICIAL MEMBER
पण
ु े / Pune; !दनांक / Dated : 05th March, 2018
SB
आदे श क+ , त-ल$प अ.े$षत / Copy of the Order forwarded to :
1. अपीलाथ / The Appellant.
2.
यथ / The Respondent.
3. The CIT(A)-13, Pune.
4. The CIT-IT/TP, Pune.
5. %वभागीय
त न(ध, आयकर अपील य अ(धकरण, "बी" ब,च,
पण
ु े / DR, ITAT, "B" Bench, Pune.
6. गाड/ फ़ाइल / Guard File.
// True Copy //
आदे शानुसार / BY ORDER,
नजी स(चव / Private Secretary
आयकर अपील य अ(धकरण, पण
ु े / ITAT, Pune.