WHAT'S INSIDE...

Direct Tax

Transfer Pricing

Indirect Tax

June 01-15

What’s inside… DIRECT TAX

1. Having claimed depreciation for the current year a taxpayer

cannot opt out of claiming unabsorbed depreciation 2. Factors relevant to valuation of goodwill analyzed by the

High Court 3. Supply of “contract solutions” not Royalty

TRANSFER PRICING 4. CBDT issues draft guidelines on application of “Range”

concept and use of “Multiple Year Data” – Would it change the way ALP is computed?

5. The Income Tax Appellate Tribunal agrees with the Commissioner of Income Tax (Appeals) in deleting the TP adjustment; Held that comparison has to be made between the price charged from associated enterprise and unrelated party; Other factors should not be given any weightage while making such comparison

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DIRECT TAX

INDIRECT TAX 6. Refund of input services used for export of service is

allowable when payment received in Indian rupees in terms of FEMA Regulations

7. Effective date for increased rate of service tax and other changes notified

1. Having claimed depreciation for the current year a taxpayer cannot opt out of claiming unabsorbed depreciation

Seshasayee Paper & Boards Ltd. [‘the taxpayer’] was engaged in the business of manufacturing paper and for the relevant year, had unabsorbed investment, as also unabsorbed depreciation allowance of the prior years. In its return of income the taxpayer declared ‘Nil’ income after claiming set off of the current year’s depreciation and unabsorbed investment allowance. The taxpayer did not

opt to claim set off of unabsorbed depreciation of prior years for the reason that unabsorbed investment allowance had a limitation period for carrying it forward while there was no limitation to carry forward unabsorbed depreciation allowance. The Assessing Officer was of the view that unabsorbed depreciation of the earlier years had to be set off first before adjusting unabsorbed investment allowance and, accordingly, the Tax Authority adjusted unabsorbed depreciation of the earlier years thereby altering the taxpayer’s computation. The taxpayer contended that if it had not claimed the

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set off of unabsorbed depreciation, the same could not be thrust upon him. The Commissioner of Income Tax (Appeals) the Income Tax Appellate Tribunal and the High Court all ruled against the taxpayer. The matter came before the Supreme Court for adjudication on the question whether the taxpayer had an option to claim depreciation of the current year and choose not to make a claim of set off of unabsorbed depreciation which is deemed to be a part of the current year’s depreciation. The Supreme Court ruled in favour of the Revenue and observed that having claimed depreciation of the current year, the taxpayer could not opt out of unabsorbed depreciation, for the reason that by legal fiction, unabsorbed depreciation becomes depreciation of the current year and gets merged with the current depreciation and once, by fiction, unabsorbed depreciation had become part of depreciation of the current year, it was not open to the taxpayer to bifurcate two components again and to exercise its choice to claim depreciation of the current year and to take a different position for unabsorbed depreciation. The Supreme Court, however, clarified that the position could have been different if the taxpayer had not claimed any depreciation at all. In any such case, the ratio, as decided by the SC in the case of Mahendra Mills (243 ITR 56), would apply. [Source: TS-282-SC-2015]

2. Factors relevant to valuation of goodwill analyzed by the High Court Motherson Auto P. Limited [‘the

taxpayer’], an Indian company was taken over by a new company i.e. Motherson Sumi Systems Pvt. Ltd. promoted by the taxpayer and two Japanese companies in terms of a collaboration agreement approved by the Central Government. The agreement specified that the consideration of the unit as a going concern could be adjusted against the goodwill of the taxpayer. The valuation of the goodwill was based

on ‘assumptions and projections’ evaluated and approved by the investing/purchasing Japanese Companies. The total consideration (including the goodwill) agreed upon by the parties was INR6.09 million. The Assessing Officer [‘AO’] was of the opinion that valuation of the goodwill at INR 5.13 million claimed by the taxpayer was not based on any established principle and therefore, the AO did not accept such goodwill valuation. Further, the taxpayer had incurred a loss during the previous year and further the goodwill claimed was founded on the expertise drawn from the collaborating company. The Income Tax Appellate Tribunal observed that the report of the Chartered Accountant, supported the taxpayer’s stand. Though the taxpayer was incorporated in 1984, it had taken over the business of an existing firm, Sehgal Cables and even though the taxpayer had

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incurred losses during the first year of its operation, those losses were wiped out during the next year. Also, the taxpayer had orders worth INR48.7 million in its hand when the takeover transaction had taken place and that it had a manufacturing monopoly over the product i.e. wireless harness. Accordingly, the Tribunal allowed the taxpayer’s appeal. The High Court, in due course of appeal, observed and ruled as under – Reference was drawn to the Tribunal’s order and observed the

basis for valuation of goodwill which was that the taxpayer, though established in 1984, was continuously engaged in the business since 1975, when Sehgal Cables started functioning. Further, the taxpayer had unexecuted orders worth INR48.7 crore on hand, when the collaboration agreement was signed and its profit for one year offset the loss for the previous year and also had a manufacturing monopoly over one product, i.e. wireless harness.

Reference was drawn to the Supreme Court’s decision in the case of S. C. Cambatta wherein it was held that there was no stipulated matrix of factors which are to be taken into consideration for valuation of goodwill. The length of time for which a business might operate, its profitability, etc. are relevant. Equally relevant is whether, and to what extent it has competition in respect of the business activities it undertakes, the market acceptability and demand for the product or services in question, capital employed, unique expertise developed, etc.

The Tribunals assessment and weightage to the monopoly enjoyed by the taxpayer in respect of the product manufactured, the continuous functioning since the business of Sehgal Cables

3. Supply of “contract solutions” not Royalty Aspect Software Inc. [‘Aspect US’] is

a corporation incorporated in USA is engaged in business of provision of hardware, software and rendering of support services that enable call centre companies. The assessee derives its revenue primarily from supply of “contact solutions”, software license and provision of services including, installation, maintenance and professional services. The assessee had also provided installation/ implementation and maintenance of the supplied hardware and software. Aspect US has 2 subsidiaries in India

had been taken over by the taxpayer and the large volume of orders at hand when the collaboration transaction took place, were sufficient basis for valuation. The AO and Commissioner of Income-tax (Appeals) did not refer to the report of the Chartered Accountant firm. The court observed that it could not be held that the valuation of goodwill made by the taxpayer was unreasonable or untenable in law. Accordingly, the sum of INR5.13 million received by the company from its collaborators was on account of goodwill and was not subject to tax. [Source: CIT v. Motherson Auto P. Ltd. (ITA 178/2001)]

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– Aspect Contact Center Software Software India Private Limited [‘ACC’] and Aspect Technology Center (India) Private Limited [‘ATC’]. ACC is involved in business of installation of the equipment and providing marketing support to the assessee. ATC is the R&D entity, which involves as well as provides, testing, providing maintenance support to the assessee. The Assessing Officer [‘AO’] held that the assessee had a Permanent Establishment in India in the form of Fixed Place, Installation as well as Dependent agent under Article 5 of the Tax Treaty. ACC, the Indian Subsidiary of assessee, was held to be PE of the assessee in India. The AO further held that revenue from supply of hardware was taxable as per Article 7 r/w Article 5 of Indo-US DTAA [‘Tax Treaty’] and that the revenues earned from supply of software and support services were taxable as 'Royalty'/Fees for Included Services [‘FIS’] under the Act and as per Article 12 of Tax Treaty on gross basis @15%. 4. He then proceeded to attribute to the PE in India @ 15% of software licensing revenues. And 57.5% of revenues earned from rendering services to the customers located in India and outside India (i.e. Sri Lanka and Middle East). The DRP concurred with the Assessing Officer. The Income Tax Appellate Tribunal, upon appeal, observed and ruled as under – Royalty What is sold to the end customer is a product comprising of both

hardware and software. The software is not separately licensed. Further, Aspect US retains all the intellectual property rights in the software and the end user is merely provided with limited right to use the licensed product solely for internal use.

There was no transfer of any right in respect of copyright by assessee and that it was a case of mere transfer of a copyrighted article. The payment was for a copyrighted article and thus merely represented purchase price of an article. Further, the receipts would constitute business receipts in the hands of the assessee and is to be assessed as business income subject to assessee having business connection/ PE in India”.

Implementation Services As implementation service was inextricably and essentially linked

to the supply of software, thus provision contained in clause (a) to Article 12 (4) would not apply to both Implementation and maintenance services as the supply of software itself was not taxable as “royalty” under the Tax Treaty. There was nothing to show that these services provided by the assessee actually made available to the End User/ Channel Partners any technical knowledge, experience, skill, know-how or processes so as to enable them to apply the said technology.

Determination of PE Neither the assessee nor the revenue had been able to

conclusively demonstrate the absence or presence of the assessee’s fixed place of business in India under Article 5 of the India – USA Treaty or otherwise of a ‘dependent agent PE’. The matter was remitted back to the AO for proper verification and fresh consideration.

ITAT held that Article 5(2)(k) should be read as a whole. The term ‘in connection therewith’ would apply for the entire preceding words viz., a ‘building site or construction, installation or assembly project or supervisory activities’.

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The term installation project cannot be read de-hors. Accordingly, observing that assessee was not carrying on business in India through a building site or construction, ITAT held that there was no installation PE of the assessee in India. Attribution of Profits ITAT found merit in assessee’s argument that where an

associated enterprise (that also constitutes a PE) is remunerated on arm’s length basis taking into account all the risk taking functions of the multinational enterprise, nothing further would be left to attribute to PE. Since the AO had not provided the basis for attributing the income to assessee’s PE in India. ITAT held that calculation of the profits attributable to a PE is a fact specific exercise which has to be computed considering the provisions of law and the precedents on the subjects.

Revenue from services provided to customers located in Sri Lanka and Middle East To tax the income earned by Aspect US from customers located

outside India under Sec. 9(l)(vi)(c)/ 9(1)(vii)(c ) of the Act, the Revenue must prove that the customers located in Sri Lanka / Middle East carry on business in India and that they have used Aspects US rights in the IPs/ services for the purposes of such business in India; or that they have used rights in the IPs/ Services for the purpose of making or earning income from a source in India. In the present case, the Revenue taxed the said income on the sole reason that these services are provided by Indian subsidiary of the assessee and the assessee is earning huge income from these customers.

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The ITAT thus held that, as revenue in question cannot be brought to tax as “royalties/FTS” there was no need to examine the taxability of the same under Article 12 of the Tax Treaty. [Source: TS-286-ITAT-2015(Del)]

Transfer Pricing

4. CBDT issues draft guidelines on application of “Range” concept and use of “Multiple Year Data” – Would it change the way ALP is computed?

Finance Minister of India, Mr. Arun Jaitley, in his Budget speech during July 2014, had announced the introduction of the “Range” concept and use of “multiple year data” for determining the Arm’s Length Price (“ALP”) of a given international transaction or specified domestic transaction. Practitioners and taxpayers awaited guidelines and expected to hear more on this issue in

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Finance Act, 2015. However, the issue was side tracked then. Now the CBDT came out with a draft proposal on the subject matter on 21 May 2015 and is open for comments from stakeholders and professionals till 31 May 2015. Once in effect, these guidelines would be applicable for international transactions and specified domestic transactions “SDT” entered into from 01 April 2014. The salient feature of the guidelines are as under: Adoption of the Range Concept: Applicable only in case the method used for determination of ALP is Transactional Net Margin Method (TNMM), Resale Price Method (RPM) or Cost Plus Method (CPM) A minimum of 9 entities are required to be selected as

comparable companies. Range between 40th – 60th percentile to be accepted. Weighted average of 3 years financial data to be applied Benefit of tolerance band not available under range concept. Use of Multiple Year Data Once again, applicable only in cases where Transactional Net

Margin Method (TNMM), Resale Price Method (RPM) or Cost Plus Method (CPM) is applied as the most appropriate method for determination of ALP.

Use of contemporaneous data for 2 out of 3 years as of the date

of filing the return of income is allowed.

Certain scenarios prescribed for allowing non usage of current year data.

Current year data can be used at the time of audits by both (taxpayer and revenue department) if it is available in public domain

Continued use of Arithmetic Mean Arithmetic mean can be used where range is not used.

Benefit of 3% tolerance band is allowed.

Multiple year data can be used for arriving at Arithmetic mean. Way Forward Whilst it is heartening to see bold measures being undertaken to align the Indian transfer pricing provisions with the international best practices, there is still possibility for litigation due to want of clarity. Say for instance, range can be computed by applying either

exclusive or inclusive method. Which one is being proposed by the CBDT?

The need for 9 comparable companies as a pre-requisite for applying “range” may actually entice the revenue authorities to reject few comparable in cases where the threshold is met by the taxpayer in its transfer pricing study. Further the underlying reason for this threshold of 9 comparables is not clear.

Range of 40th to 60th percentile is trivial. Globally accepted principles revolve around 25th to 75th percentile. This could create a disconnect when it comes to negotiations through MAPs or APAs.

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5. The Income Tax Appellate Tribunal agrees with the Commissioner of Income Tax (Appeals) in deleting the TP adjustment; Held that comparison has to be made between the price charged from associated enterprise and unrelated party; Other factors should not be given any weightage while making such comparison

Facts of the Case High Polymer Labs Limited (Now HPL Additives Ltd.), [“the taxpayer”], is an Indian Company engaged in the production of various chemicals viz. blowing agents which include polymer additives, speciality chemicals and industrial chemicals. The taxpayer has a subsidiary in USA which acts as its marketing agent.

During AY 2005-06, the taxpayer entered into an international transaction of sale of blowing agents & antioxidants to its associated enterprise [“AE”]. The taxpayer benchmarked the aforesaid transaction using Comparable Uncontrolled Price [“CUP”] method. During the course of the assessment proceedings, the Transfer Pricing Officer [“TPO”] observed that the taxpayer’s business is

In a scenario where 10 independent comparables are accepted in the transfer pricing documentation whilst during the course of audits, if the transfer pricing officer (“TPO”) rejects 2 comparables, would that render the entire report as “defective” under section 92C(3) since the threshold of 9 comparables is not met for application of “range”?

Nevertheless, the final guidelines could drastically change the Indian transfer pricing litigation scenario since the issues revolving around use of multiple year data and the need for permissibility of application of range can now find legislative support.

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addition was made by observing that the price charged by the taxpayer from its AE was less than that charged from the Non-AE. The ITAT, post considering the facts and submissions of the taxpayer, referred to provisions of Section 92(1) of the Income-tax Act, 1961 along with Rule 10B of Income-tax Rules, 1962 and noted that the TPO had made the TP adjustment due to of difference in the rates charged from AEs and non-AEs in the months of July and August, 2014 and February, 2005. The ITAT further observed that CIT(A) recorded a categorical finding that the difference was observed by the TPO by considering the price inclusive of freight and insurance and if such amount is excluded, then the price charged from AE is comparable with that of charged from non-AEs. ITAT observed from the impugned order of the TPO that in July, 2004, the taxpayer charged USD 2/kg. from its AE and similar rate from its non-AE in Turkey but a lower rate of USD 1.92/kg. from a non-AE in Bangladesh. Similarly, in August, 2004, the price charged from AE was USD 2/kg. in comparison with USD 1.94/kg. from a non-AE in Bangladesh. Similar was the position regarding February, 2005 transactions. ITAT held that the price to be compared has to be exclusive of freight etc. for the mere reason that the product going to a far off place may incur higher amount of freight in comparison with the lower amount of freight incurred on a product sold to a nearer destination. As a comparison is made between price charged from AEs and non-AEs for the same product, the freight factor is required to be excluded for making such a comparison. Finally, ITAT concluded that if the freight and insurance cost are excluded from the amount invoiced, then, the price charged by the taxpayer from AEs is within the permissible range of that charged from non-AEs. ITAT therefore, approve the view taken by CIT(A) in deleting the TP adjustment. Source: DCIT Vs. High Polymer Labs Ltd. [ITA No. 4725/Del/2011]

segregated in three divisions, viz. Polymer Additives Division; Speciality Chemicals Division; and Industrial Chemical Division. He further observed that products sold to its AE belonged to the Polymer Additives and Industrial Chemical Division. The TPO deduced that, firstly, the price charged from the AE in various transactions was lower than the price charged from unrelated parties for similar items; and secondly, in case of material difference between the control and uncontrolled transactions, the taxpayer failed to establish or quantify any adjustment which could affect the determination of the Arm’s Length Price [“ALP”]. The TPO made a comparison with the sales made to the unrelated party and noted that the difference in the prices in the months of July and August, 2004 and February, 2005 were breaching the +/- 5% cushion. Accordingly, on the basis of difference between the prices charged from AE vis-à-vis non-AEs, the TPO proposed upward adjustment of INR 1.39mn for which addition was made by the Assessing Officer [“AO”]. The taxpayer filed its objections before the Commissioner of Income Tax (Appeals) [“CIT(A)”]. The CIT(A) deleted the aforesaid TP adjustment. Aggrieved by the same the Revenue filed an appeal before the Income Tax Appellate Tribunal [“ITAT”]. Price charged by the taxpayer from its AE vis-à-vis that charged from non-AEs, exclusive of freight and insurance, is favourably comparable The ITAT observed that there was no dispute in relation to the selection of TP methodology (i.e. CUP method) in the instant case for benchmarking the taxpayer’s international transaction. However,

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6. Refund of input services used for export of service is allowable when payment received in Indian rupees in terms of FEMA Regulations

Sun-Area Real Estate Private Limited [the “Assessee”] filed a refund claim of input services used in relation of output services which qualify as export in terms of the Export of Services Rules, 2004. The Authorities rejected the refund claim on the ground that the services provided by the Assessee do not qualify as export as the payment for same has not been received in convertible foreign exchange. Further, refund

Claim pertaining to security and air travel agent services were rejected on the ground that the same have no nexus to the output service. Consequently, order rejecting the refund claim was passed by the Authorities. On Appeal, the Commissioner (Appeals) also upheld the finding of the Authorities. Aggrieved, the Assessee filed an appeal before the Mumbai Tribunal. The broad contentions of the Assessee were as under– In the instant case payment for export of services in Indian

INDIRECT TAX rupees have received through Deutsche Bank who have issued FIRC certifying that though the payment is in India rupees but the same is received in convertible foreign exchange from abroad through banking channel.

Issuance of FIRC by Bank itself substantiate the fact that payment

were received in foreign exchange as in terms of clause 3A.6 of Exchange Control Manual of Reserve Bank of India (‘RBI’), FIRC is issued by bank in respect of remittance of foreign exchange.

Notification No. FEMA 9/2000-RB dated 3 May 2000 issued by RBI (‘NN 9/2000’), under Foreign Exchange Management (Realisation, Repatriation and Surrender of Foreign Exchange) Regulations, 2000 provides that when a person receives in India, payment in rupees from the account of the bank or any exchange house situated in any country outside India, maintained with authorised dealer, the said person shall be deemed to· have repatriated the realized foreign exchange to India.

Reliance is also placed on Foreign Exchange Notification No. FEMA 14/2000-RB dated 3 May 2000 of RBI (‘NN 14/2000’)wherein, as per Regulation 3, Manner of Receipt in Foreign Exchange, the payment of any rupees from the account of a bank situated in any country other than member country of Asian Clearing Union or Nepal or Bhutan is considered as foreign exchange.

The Mumbai Tribunal observed and ruled as under – With regard to payment received in Indian rupees: In the instant case, there is specific certification in FIRC that

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payment has not been received in non-convertible rupees which establish that payment is received in convertible foreign exchange. Relying on NN9/2000 and NN 14/2000, the foreign remittance

received by the Assessee in the instant case in Indian rupees through Deutsche Bank is the receipt of payment in convertible foreign exchange.

Reliance is also placed on Supreme Court Judgment in the case of JB Boda and Company Private Ltd.

With regard to admissibility of input service credit: As the issue of admissibility of input service was not raised in the

show cause notice, denial of refund on air travel and security services on adjudication level is not correct.

The security services and air travel services used by the Assessee for export services appears to have direct nexus with the export services. Accordingly the same are admissible input services.

[Sun-Area Real Estate Private Limited V. Commissioner of Service Tax, Mumbai-I, in appeal no. ST/88549/2014]

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7. Effective date for increased rate of service tax and other changes notified The Finance Bill, 2015 has received an assent of the Hon’ble President on 14 May 2015. Consequent to the above, vide notifications published in the Gazette of India, following changes have been introduced: CHANGES IN RATES

• The new rate of service tax i.e. 14% shall be effective from 1 June 2015.

• The provisions levying Education Cess and Secondary and Higher Education Cess cease to have effect from 1 June 2015.

• Circular dated 19 May 2015 illustrates, the rate of service tax that would be applicable in various scenarios in terms of the Point of Taxation Rules, 2011, as follows:

Service Provided

Issuance of Invoice

Receipt of Payment

Point of Taxation Rule

Applicable Rate of service Tax

Before rate change

After After Rule 4(a)(i) 14%

Before rate change

Before After Rule 4(a)(ii) 12.36%

Before rate change

After Before Rule 4(a)(iii) 12.36%

After rate change

Before After Rule 4(a)(i) 14%

After rate change

Before Before Rule 4(a)(ii) 12.36%

After rate change

After Before Rule 4(a)(iii) 14%

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• Consequent to the upward revision in Service Tax rate, the alternative rates for payment of service tax in the case of air travel agents; insurance services etc have been revised proportionately.

CENVAT CREDIT

• Effective from 1 June 2015, under Rule 6(3)(i) of Cenvat Credit Rules 2004, rate of payment of amount is enhanced to 7% of the value of exempted services (the rate was 6% prior to 1 June 2015)

SWACH BHARAT CESS

• Levy of Swatch Bharat Cess on taxable services to be notified in due course.

EXCLUSIONS FROM THE NEGATIVE LIST EFFECTIVE 1 JUNE 2015

• Services provided by way of admission to entertainment event or access to amusement facility

• Service by way of any process for production or manufacture of alcoholic liquor for human consumption

EXEMPTIONS INTRODUCED EFFECTIVE 1 JUNE 2015

• Service by way of right to admission to exhibition of cinematographic films, circus, dance, theatrical performance, recognized sporting event

EXEMPTION WITHDRAWN EFFETIVE 1 JUNE 2015 12

• Carrying out an Intermediate production process as job work in relation to alcoholic liquor for human consumption

[Source: Notification No.14/2015-Service Tax, dated 19 May 2015; Notification No.15/2015-Service Tax, dated 19 May 2015; Notification No.16/2015-Service Tax, dated 19 May 2015; TRU Circular D.O.F.No.334/5/2015-TRU dated 19 May 2015]

The Information provided in this document is provided for information purpose only, and should not be construed as legal advice on any subject matter. No recipients of content from this document, client or otherwise, should act or refrain from acting on the basis of any content included in the document without seeking the appropriate legal or professional advice on the particular facts and circumstances at issue. The Firm expressly disclaims all liability in respect to actions taken or not taken based on any or all the contents of this document.

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