Income Tax Act, 1961 – Section 115JB – Assessment of income – Computation of book profits – Addition of bad debts – Sustainability – Appellant/assessee is engaged in business of software development consultancy services – Assessee filed return of income for AY 2012-13 – Assessing Officer completed assessment after making additions to book profits under Section 115JB of the Act towards provision for bad debts – CIT(A) affirmed addition made by AO – Whether CIT(A) has erred in confirming addition of bad debts while computing book profits under Section 115JB of the Act – HELD – Provision for doubtful debt debited to P&L account constitutes an actual write off, if same is simultaneously reduced from loans & advances/debtors to reflect net balance in statement of financials – Assessee has reduced provision for doubtful debts from trade receivables and has shown only the net figure in balance sheet of assessee – Bad debts which is reduced from asset side of debts amounts to actual write off and cannot be adjusted for purpose of book profits under Section 115JB of the Act – Assessee has actually written off the bad debts as of 31-3-2012 – Actual write off of asset cannot be considered as an addition under clause (i) of Explanation 1 to Section 115JB of the Act – Impugned order passed by CIT(A) set aside – Appeal is allowed
Wealth Tax Act, 1957 – Sections 2(ea) and 18(1)(c) – Business asset – Tax liability – Appellant/assessee filed his return of wealth for Assessment Year 2009-10 declaring total taxable wealth consisting of value of motor car and gold bar – Assessing Officer determined taxable net wealth after considering lands owned by assessee as assets within meaning of Section 2(ea) of the Act and demanded Wealth Tax thereon – CIT(A) confirmed additions made by AO – Whether CIT(A) has erred in confirming addition of value of land as chargeable to wealth tax – HELD – Assessee has placed on record, the findings of CIT(A) in his appellate order in penalty proceedings for same AY 2009-10 in assessee’s own case, wherein levy of penalty under Section 18(1)(c) of the Act have been deleted – In penalty proceedings, CIT(A) observed that land at Sakarda is treated as business asset not liable to Wealth Tax – In regard to land at Kapurai, CIT(A) similarly observed that said land is treated as business activity of assessee which is not an asset under Section 2(ea) of the Act, as assessee is not the owner of land and he is a Power of Attorney holder to sell above land to third party – Revenue could not able to inform either penalty order is a subject matter of appeal before this Tribunal, thus findings made by CIT(A) in penalty proceedings has attained finality – Since lands in question are not assets within meaning of Section 2(ea) of the Act, additions made by AO are deleted – Appeal is allowed
Income Tax Act, 1961 – Section 143(3) – Assessment of income – Disallowance of interest expenses – Appellant/assessee filed its return of income for AY 2018-19 – Assessing Officer completed assessment under Section 143(3) of the Act by determining total income of assessee after making addition on account of disallowance of interest expenses – CIT(A) affirmed order of AO – Whether CIT(A) has erred in confirming addition made by AO on account of disallowance of interest paid on loans given to related parties – HELD – AO disallowed interest expenses on ground that assessee did not respond to query raised by him as to why proportionate interest income on advance given to Musaddilal Holdings Pvt. Ltd. has not been offered to tax – When assessee has filed requisite details before completion of assessment, observation of AO that assessee has not filed requisite details is incorrect – Submission of assessee is that if an opportunity is given, assessee is in a position to substantiate with evidence to satisfaction of AO that it has got sufficient funds to advance amount for business exigency and therefore, no disallowance can be made under provisions of law – Considering the totality of facts of case and in interest of justice, issue restored to file of AO with a direction to examine details already filed by assessee and decide issue as per fact and law after giving due opportunity of being heard to assessee – Appeal is allowed
Income Tax Act, 1961 – Section 68 – Determination of income – Addition of share capital – Appellant/assessee filed return of income for relevant assessment year – Assessing Officer completed assessment by determining total income of assessee after making addition of alleged sum received in form of share capital and share premium by invoking provisions of Section 68 of the Act – CIT(A) dismissed appeal filed by Appellant – Whether CIT(A) has erred in confirming addition made by AO under Section 68 of the Act on account of unexplained share capital and share premium – HELD – Assessee received share capital and share premium from four investor companies – Assessee filed complete details to explain alleged sum – Perusal of details filed by assessee make it clear that all investor companies are regularly assessed to tax and they have sufficient funds in form of share capital and security premium to explain alleged investment in assessee company – Source of share capital and share premium has been successfully explained to best possible extent by assessee by furnishing all evidences and none of them were found to be incorrect – Assessee has successfully discharged its primary onus casted upon it of proving identity and creditworthiness of investor companies as well as genuineness of transactions – Order of CIT(A) confirming action of AO making addition under Section 68 of the Act set aside – Appeal is allowed
Income Tax Act, 1961 – Sections 132(4A) and 147 – Reopening of assessment – Addition of unaccounted income – Assessee is a company mainly engaged with completion of project – Assessee filed return of income for AY 2007-08 declaring total income at nil – AO completed assessment by accepting returned income – Pursuant to search and seizure conducted on Aerens group, AO reopened case of assessee under Section 147 of the Act and made addition on account of unexplained cash receipt – CIT(A) partly allowed appeal filed by Respondent/assessee – Whether CIT(A) has erred in allowing ground of assessee regarding addition on account of cash receipt against booking of space while directing AO to tax this amount as per Percentage Completion Method of revenue recognition – HELD – Assessee has denied alleged cash receipt by it from parties mentioned in xls sheet seized during course of search – AO made impugned addition relying only on provisions of Section 132(4A) of the Act by completely overlooking fact that presumption under said section is rebuttable – Where there is denial of such presumption, onus shifts to AO to make further investigation which has not been done – No attempt has been made by AO to examine parties to establish veracity of entries made in xls sheet when their complete addresses have been mentioned therein – Record of assessee needs to be examined as to either in its case Percentage Completion Method has been applied or assessment has been made on basis of Project Completion Method – Issue restored back to file of AO to carry out necessary investigation as to receipt of alleged cash by assessee and arrive at conclusion afresh in light of material gathered – Order of CIT(A) set aside – AO is directed to make reassessment afresh keeping in view of above directions – Appeal is allowed
Income Tax Act, 1961 – Sections 142(1), 143(2), 144 and 145(3) – Estimation of income – Respondent/assessee is engaged in business of Real Estate Development and filed its return of income for relevant assessment year – Since there was no response from assessee to notices issued by AO under Sections 143(2) and 142(1) of the Act, AO framed assessment under Section 144 of the Act after making additions on account of Current liabilities, Commission expenses and Consultancy fees – CIT(A) deleted additions made by AO – Whether CIT(A) has erred in deleting additions made by AO on ground that AO has estimated income under Section 144 of the Act – HELD – CIT(A) has proceeded on premises that instead of making additions by AO while passing order under Section 144 of the Act, AO ought to have estimated a fair and reasonable income on basis of material available on record – Said proposition is applicable only in case when AO after rejecting books of accounts under Section 145(3) of the Act proceeded to estimate income on some reasonable and proper basis – Books of accounts and other relevant records was produced by assessee before CIT(A) – Once books of accounts and other relevant records was produced by assessee first time during appellate proceedings before CIT(A), principles of natural justice demands that other party should be given an opportunity to verify evidence produced at appellate stage – CIT(A) has passed impugned order without giving any reason as to why books of accounts and other relevant material produced by assessee was not referred to AO for his examination and report – It is a clear violation of principles of natural justice, as AO was not even given an opportunity to verify material/evidence and give his comments/report – Impugned order of CIT(A) set aside – Matter remanded to AO for passing assessment order afresh after verification and examination of relevant record and books of accounts to be produced by assessee – Appeal is allowed by remand
Income Tax Act, 1961 – Section 92CA – Transfer pricing adjustment – Selection of comparables – Respondent/assessee is engaged in providing software development services to its group companies as well as third parties – Assessee filed return of income for AY 2011-2012 – AO referred matter to TPO to determine Arm’s Length Price of international transactions undertaken by assessee with its Associated Enterprises – TPO proposed TP adjustment vide order passed under Section 92CA of the Act – Pursuant to directions of DRP, TPO revised TP adjustment to `Nil’ – AO passed final assessment order after considering DRP’s directions – Whether DRP has erred in excluding comparables having turnover more than Rs.2000 crores – HELD – Size and turnover of company are deciding factors for treating a company as a comparable – Companies could be classified under three major heads depending on turnover of company, viz., less than Rs.200 crores categorized as small size companies, Rs.200 crores to Rs.2000 crores categorized as medium size companies and more than Rs.2000 crores categorized as large size companies – Since turnover of assessee is Rs.332 crore, it would fall within category of medium size company, therefore, companies not falling within range, i.e. Rs.200 crore to Rs.2000 crore, deserves to be excluded – DRP was justified in its directions to include only those companies having turnover of Rs.200 crore to Rs.2000 crore as a comparable for making TP study in assessee’s case – Appeal is dismissed
Income Tax Act, 1961 – Sections 143(3) and 263 – Escaped assessment – Invoking of revisionary jurisdiction – Appellant/assessee filed its return of income for AY 2015-16 – Assessing Officer completed assessment under Section 143(3) of the Act after making addition on account of interest – On perusal of assessment order, PCIT found that capital gain earned by assessee on sale of property has escaped assessment – PCIT invoked revisionary jurisdiction under Section 263 of the Act and set aside assessment order with a direction to AO to frame fresh assessment after proper enquiries on aforementioned issue – Whether PCIT has erred in passing order of revision under Section 263 of the Act – HELD – Assessee had sold residential flat and had not offered long term capital gain on sale of property in return of income and no addition was made on account of capital gain while completing assessment under Section 143(3) of the Act – Assessee has not produced any concrete materials before any authorities that property sold is business asset and not liable for capital gain – In absence of same, there is no merit in arguments of assessee that invocation of revision proceedings under Section 263 of the Act is bad in law – No infirmity is found in revision order passed by PCIT who has remanded case to AO to verify facts and pass order in accordance with law – Appeal is dismissed
Income Tax Act, 1961 – Sections 12AA, 115BBC, 143(1), 143(3), 147 and 263 – Assessment of income – Invoking of revisionary jurisdiction – Appellant/assessee is an Educational Trust running schools and colleges – Assessee filed its return of income for AY 2011-12 declaring deficit – Assessing Officer processed return under Section 143(1) of the Act – Subsequently, AO reopened assessment under Section 147 of the Act and made addition on account of anonymous donations under Section 115BBC of the Act – CIT (Exemption) invoked revisionary jurisdiction under Section 263 of the Act and set aside order of AO with direction to AO to undertake assessment proceedings de novo – Whether CIT(E) has erred in invoking jurisdiction under Section 263 of the Act and setting aside order passed by AO under Section 143(3) read with Section 147 of the Act by holding such order to be erroneous in so far as prejudicial to interest of Revenue – HELD – Only those issues for which assessment was reopened could be revised in order under Section 263 of the Act – Reason for reopening of assessment is for verification of cash donation and its taxability under Section 115BBC of the Act as anonymous donation – Assessee is not registered under Section 12AA of the Act for impugned assessment year, therefore, assessee is an AOP for impugned assessment year, but not a charitable trust – In assessment order, AO noted that as assessee does not have eligibility certificate under Section 12AA of the Act, corpus donation being building fund shown in balance sheet received during year is to be assessed as income of assessee – Only reason stated by CIT(E) is that AO has granted set off deficit of assessee against anonymous donation – There is no error in computation, because losses can be set-off for same assessment year, therefore, to that extent, there is no error in order of AO – Impugned order passed by CIT(E) under Section 263 of the Act quashed – Appeal is allowed
Income Tax Act, 1961 – Sections 37(1) and 143(3) – Payment towards contractual obligation – Business expenditure – Allowable deduction – Respondent/assessee is engaged in business of trading of various medical equipments and consumables – Assessee filed their return of income for AY 2016-17 – Assessing Officer completed assessment under Section 143(3) of the Act after making addition of amount paid by assessee to Atlantic Pharmaceuticals by holding that it was in nature of penalty – CIT(A) deleted addition made by AO – Whether CIT(A) has erred in deleting addition of amount paid by assessee to Atlantic Pharmaceuticals – HELD – Nipro Corporation (Japan) was selling bulk needles in India through a third party distributor/Atlantic Pharmaceuticals – Assessee was formed for purpose of marketing and supply of Nipro products in India – In view of trading activity undertaken by Nipro Corporation through one of its subsidiary, business of Atlantic Pharmaceuticals was reduced, therefore, Atlantic Pharmaceuticals brought a suit against Nipro Corporation – Having realised futility of litigation, both parties approached an Arbitrator – Arbitrator passed award for a sum payable by Nipro Corporation to Atlantic Pharmaceuticals – Assessee paid said sum and claimed same as business expenditure under Section 37(1) of the Act – When trading activity of Nipro Corporation (Japan) was carried out in India by Atlantic Pharmaceuticals and subsequently for very same purpose assessee was formed on transfer of trading assets and trading liabilities including 3rd party claims relating thereto, assessee acquired entire package which shall include obligation to pay amounts under arbitration award – Payment made by assessee was towards discharge of liability as contractual obligation and transaction does not constitute any offence nor it is prohibited by law – Findings of CIT(A) is affirmed and appeal is dismissed
Income Tax Act, 1961 – Section 56(2)(viia) – Purchase of own shares – Extinguishment by reducing paid-up capital – Respondent/assessee had purchased its own shares from its associate concerns – Assessing Officer picked up the issue and made addition under Section 56(2)(viia) of the Act – On appeal, CIT(A) deleted addition made by AO – Whether CIT(A) has erred in deleting addition made by AO by applying provisions of Section 56(2)(viia) of the Act – HELD – Provisions of Section 56(2)(viia) of the Act should be applicable only in cases where receipt of shares become property in hands of recipient and shares shall become property of recipient only if it is “shares of any other company” – In present case, assessee purchased its own shares under buyback scheme and claimed that same has been extinguished by reducing paid up capital of assessee company – Factum of extinguishment of purchased shares by reducing paid up capital of assessee company has not been examined and verified by AO – Issue is restored to file of AO for a limited purpose of examining and verifying fact of extinguishment of shares by reducing paid-up capital of assessee in accounts of assessee – AO is directed to delete addition, in case said fact is found to be correct – Appeal is allowed
Income Tax Act, 1961 – Sections 32(1)(iia) and 263 – Assessment of income – Invoking of revisionary jurisdiction – Setting aside of order of assessment – Appellant/assessee is engaged in business of manufacturing of various specialty chemicals – Assessee filed its return of income for AY 2010-11 – Assessing Officer completed assessment by determining total income of assessee – Principal Commissioner of Income Tax (PCIT) perused assessment records and found that additional depreciation allowed by AO are against provisions of Section 32(1)(iia) of the Act – PCIT invoked revisionary jurisdiction under Section 263 of the Act and set aside order of AO – Whether PCIT has erred in holding that assessment order passed by AO is erroneous in so far as prejudicial to interest of Revenue – HELD – AO called for explanation from assessee on various Plant & Machinery on which additional depreciation claimed and same were furnished by assessee – AO having been satisfied with explanation offered by assessee completed assessment by passing a detailed assessment order – AO has conducted necessary enquiry and verification before passing assessment order – When AO had access to all records of assessee and perusing records and framed assessment order, said assessment order could not be re-opened in exercise of revision power under Section 263 of the Act for making further inquiries – There is no error in order passed by AO so as to justify initiation of revision proceedings under Section 263 of the Act by PCIT – Revision order passed by PCIT is quashed – Appeal is allowed
Income Tax Act, 1961 – Sections 36(1)(va) and 43B – Employees’ contribution – Allowable deduction – Appellant/assessee filed its return of income for relevant assessment year – Assessing Officer completed assessment by determining total income of assessee after making certain additions/disallowances – On appeal, CIT(A) confirmed disallowances made by AO – Whether CIT(A) has erred in confirming disallowance of contribution to gratuity fund under Section 43B of the Act and employees’ contribution to ESI under Section 36(1)(va) of the Act – HELD – As assessee has made contribution to LIC Gratuity Fund before due date of filing of return of income, assessee is eligible for claiming deduction for this amount – In respect of addition made for delay in depositing of employees’ contribution to ESI, from perusal of Form 3CD, there is a typographical mistake in writing year of deposit which has been mentioned as “2018” instead of “2017” – Said fact has been corroborated by three challans to demonstrate correct date of deposit of ESI contribution which is made on or before respective due dates – Considering the factual matrix along with verifiable documentary evidence, additions are directed to be deleted – Appeal is allowed
Income Tax Act, 1961 – Section 143(3) – Purchase of vehicle – Addition on account of unaccounted investment – Appellant/assessee is engaged in business of trading of agricultural produce – Assessee filed return of income for Assessment Year 2017-18 – Assessing Officer completed assessment under Section 143(3) of the Act by determining total income of assessee after making additions on account of unexplained investment in purchase of vehicle, and low gross profit declared by assessee – CIT(A) affirmed order of AO – Whether CIT(A) has erred in confirming order of AO by treating difference between cost of vehicle and valued declared in books of accounts as unexplained investments of assessee – HELD – There was a mismatch in facts as observed by lower authorities in value of vehicle shown by assessee viz a viz actual value of vehicle – Entries shown in books of accounts cannot be used to draw any adverse inference in event assessee failed to make complete disclosure – Assessee has filed ledgers documents in support of payment made for purchase of vehicle – In interest of justice, issue remanded to AO for fresh adjudication as per provisions of law and in light of documents available in paper book – Appeal allowed on this ground – Whether CIT(A) has erred in confirming addition made by AO on account of low gross profit declared by assessee – HELD – There is no dispute to fact that there is a downfall in gross profit ratio declared by assessee in year under consideration in comparison to earlier years – Downfall in gross profit ratio does not gave authority to revenue to make any addition without pointing out any defect in amount of purchases, sales stock shown in books of accounts – Necessary details furnished by assessee have not been appreciated in right perspective by lower authorities – In interest of justice, issue is restored to file of AO for fresh adjudication in light of documents available in paper book and in accordance with provisions of law – assessee appeal is allowed by remand
Income Tax – India-Singapore DTAA - Freight income – Denial of benefit of exemption – Appellant/assessee is a company incorporated in Singapore – During Financial Year 2016-17, assessee is engaged in business of operation of ships in international traffic and has earned freight income from such shipping operations with India – Assessee claimed exemption of freight income as per Article 8 of Double Taxation Avoidance Agreement (DTAA) between India and Singapore – Assessing Officer denied claim of assessee by holding that assessee did not qualify for tax exemption under Article 8 of DTAA between India and Singapore in view of Article 24 on ground that freight income was not directly remitted to Singapore and was never subjected to tax in Singapore – DRP dismissed objections raised by assessee – Whether AO/DRP has erred in denying benefit of Article 8 of DTAA between India and Singapore to freight income earned by assessee by invoking provisions of Article 24 – HELD – Provision of Article 24 of India Singapore DTAA is applicable for income which is exempt from tax as per tax treaty – Inland Revenue Authority of Singapore clarified that assessee derives shipping income (charter income) from third party from export voyages from Indian ports – Article 24(1) of India-Singapore DTAA does not apply to shipping income received by a Singapore Shipping Enterprises from Indian customers – Shipping profits derived by a Singapore resident shipping enterprise from operation of ships in international traffic shall be taxable only in Singapore in accordance with Article 8 and same does not confer right on Indian Authorities to tax such profits – Shipping income is taxable in Singapore on an arising basis when income is earned by shipping enterprise regardless of either shipping income is received in or remitted to Singapore – Freight income earned by assessee is liable to tax/assessable on accrual basis in Singapore – Since Article 24 of India-Singapore DTAA is not applicable, provisions of Article 8 should apply without any limitation – AO and DRP was not justified in denying benefit of Article 8 by invoking limitation of Article 24 of DTAA between India and Singapore – Order of lower authorities set-aside – Authorities are directed to allow benefit of Article 8 to all voyages carried out by assessee – Appeal is allowed
Income Tax Act, 1962 – Section 263 – Determination of capital gains – Assessment of income – Exercise of revisionary jurisdiction – Appellant/assessee along with his brother entered into development agreement with Heriall constructions Pvt Ltd for construction of villas and as per agreement, builder has to construct 64 villas out of which 32 villas were to be given to landowners – Assessee filed return of income for AY 2015-16 admitting nil income – Assessing Officer completed assessment after determination of capital gains – Principal Commissioner of Income Tax (PCIT) invoked revisionary jurisdiction under Section 263 of the Act and set aside order of AO – Whether PCIT has erred in holding that assessment order passed by AO is erroneous in so far as prejudicial to interest of Revenue – HELD – AO made enquiries in respect of capital gains and recorded sworn statement of assessee and enquired about non-disclosure of assets and liabilities and also status and utilization of land in question – AO made enquiry about value of land as on date of agreement of assessee with Heriall Constructions and made it a basis for determination of capital gains – On face of these facts, it cannot be said that AO did not make any verification whatsoever in respect of value of land for determination of capital gains accrued to assessee as on date of agreement – Assessment order is not erroneous insofar as prejudicial to interest of Revenue – Twin requirements of Section 263 of the Act to exercise revisionary jurisdiction are not satisfied in this matter – Order passed by PCIT under Section 263 of the Act quashed – Appeal is allowed
Income Tax Act, 1961 – Sections 271AAB and 274 – Imposition of penalty – Validity of notice – Pursuant to search and seizure operation conducted at premises of Appellant/assessee, assessee filed his return of income by showing income including undisclosed income – AO although accepted return of income filed by assessee without making any further addition, imposed penalty under Section 271AAB of the Act – CIT(A) dismissed appeal filed by assessee – Whether notice issued under Section 274 read with Section 271AAB of the Act suffers from fatal error and technical defect thereby not providing an opportunity to assessee to plead his case – HELD – For levying penalty under Section 271AAB of the Act, AO needs to primarily issue notice under Section 274 of the Act – Notice under Section 274 of the Act should be clear enough to convey assessee about charge which is to be levelled against him/her for levying penalty – From going through the notice issued to assessee, there is no mention about various conditions provided under Section 271AAB of the Act – Except mentioning Section 271AAB of the Act in notice, it does not talk anything about provisions of Section 271AAB of the Act – Notice issued by AO under Section 274 read with Section 271AAB of the Act has a fatal error and technically is not a correct notice in eyes of law, because it intends to penalize an assessee without spelling about the charge against assessee – Assessee succeeds on legal ground challenging validity of notice issued under Section 274 r.w.s. 271AAB of the Act – Since penalty proceeding itself has been quashed, impugned penalty stands deleted – Appeal is allowed
Income Tax Act, 1961 – Section 54 – Sale of properties – Levy of capital gains tax – Denial of exemption – Appellant/assessee sold two residential accommodations – Sale of properties had given rise to capital gains, for which assessee claimed exemption under Section 54 of the Act on plea that amount was invested in residential plot with intention to construct house thereon – Assessing Officer denied exemption on ground that assessee has not fulfilled conditions laid down under Section 54 of the Act and added exempt income to income of assessee – CIT(A) dismissed appeal filed by assessee – Whether CIT(A) has erred in confirming denial of exemption under Section 54 of the Act to assessee – HELD – Objective of Section 54 of the Act is that capital gains has to be reinvested in another residential house – For purpose of claiming exemption under Section 54 of the Act, investment of substantial amount in new asset is sufficient compliance – Section 54 of the Act gives a window period of three years from date of transfer of original asset for construction of new house and two years for purchasing a new house – There is no evidence of any construction activity or assessee has invested proceeds in statutory deposits and then spent any proceeds of sales consideration of two properties he had sold, into construction over residential plot – Perusal of material on record make it clear that no construction was carried out till date and plot remained vacant – There is no error in determination of issue against assessee by lower authorities – Appeal is dismissed
Income Tax Act, 1961 – Section 133A – Disclosure of investment in property – Addition on account of unexplained investment – During survey proceedings, Appellant/assessee made voluntary disclosure of investment in property for relevant assessment year – Assessing Officer treated amount as unexplained investment and brought same to tax – CIT(A) affirmed addition made by AO – Whether CIT(A) has erred in confirming addition made by AO on account of unexplained investment – HELD – Addition was made by AO solely on basis of admission made by assessee in his statement recorded during survey – Assessee subsequently pointed out to AO that he had mentioned wrongly figure of investment and had produced relevant documents evidencing quantum of investment made in property to be far less than that admitted by assessee in statement – Nothing has been brought on record by Revenue to effect that documents produced by assessee evidencing actual investment made by him in impugned property was false or fake – Statement recorded during survey can safely be stated to be retracted with documentary evidence, and in such circumstances, statement of assessee recorded under Section 133A of the Act carries no evidentiary value and cannot be made basis of addition – Addition made on account of unexplained investment solely on basis of admission of assessee is unwarranted – AO is directed to delete addition – Appeal is allowed
Income Tax Act, 1961 – Sections 92CA, 143(3) and 144C(13) – Software development Services – Transfer Pricing – Determination of Arm’s Length Price – Adjustment on account of negative working capital – Appellant/assessee is engaged in provision of software development services – On a reference made by Assessing Officer for determination of Arm’s Length Price in respect of international transaction of rendering software development services by assessee to its Associated Enterprises, TPO determined TP adjustment vide order passed under Section 92CA of the Act – AO passed draft assessment order by incorporating adjustment proposed by TPO and proposing to disallow provision for rent claimed by assessee – Pursuant to directions of Dispute Resolution Panel (DRP), AO passed final assessment order under Section 143(3) read with Section 144C(13) of the Act – Whether TPO has erroneously determined a negative working capital adjustment – HELD – Assessee is not an entrepreneur but a captive service provider which is entirely funded by its AE and has no working capital contingencies – Assessee has not incurred any expenses for meeting working capital requirement and is running business without any working capital risk as compared to comparables – Assessee does not bear any market risk, as services are provided only to its AE – On consideration of fact that assessee is a captive service provider entirely funded by its AE and has no working capital contingent, adjustment on account of negative working capital does not arise – Appeal is partly allowed Issue 2: Transfer pricing adjustment – Selection of comparables – Whether TPO/AO/DRP has erred in accepting Persistent Systems & Solutions Ltd., Persistent Systems Ltd. and Sasken Communication Technologies Ltd. as comparables – HELD – Composite data of revenue as well as margins of Persistent Systems & Solutions Ltd. pertaining to sale of software services and products cannot be considered as comparable with software development services segment of assessee – When Persistent Systems Ltd. is engaged in diversified activities and earning revenue from various activities including licencing of products, royalty on sale of products as well as income from maintenance contract, same cannot be considered as functionally comparable with assessee – Sasken Communication Technologies Ltd. earns revenue from 3 segments, however, segmental operating margins are not available – AO is directed to exclude Persistent Systems and Solutions Ltd. and Persistent Systems Ltd. from list of comparable companies and remand question of comparability of Sasken Communication Technologies Ltd. to TPO for fresh consideration. Issue 3: Exclusion of comparables – Whether TPO/AO/DRP has erred in rejecting LGS Global, Evoke Technologies Ltd., RS Software India Ltd. and Thinksoft Global Ltd. as comparables – HELD – TPO rejected LGS Global on ground that Annual Report did not give break up of employee cost and thus he could not compute its employee cost factor – Issue remanded to TPO/AO to verify relevant facts and decide comparability of this company – Since Evoke Technologies Ltd., RS Software India Ltd. and Thinksoft Global Ltd. were excluded by DRP suo moto, issue has to be remanded to TPO/AO for fresh consideration to decide comparability of these companies. Issue 4: Computation of operating margin – Whether DRP has erred in rejecting objection raised by assessee in relation to computation of operating margin of assessee by stating that assessee had not made any submissions – HELD – DRP has merely observed that no submissions were made by assessee on above ground of appeal – Assessee has pointed out that in Annexure 1.26 of objections filed by assessee before DRP, submissions have been made with regard to computation of operating margin – Since issue has not been adjudicated by DRP, it would be just and appropriate to remand this issue to TPO/AO for consideration afresh with liberty to assessee to file additional evidence before AO/TPO – TPO/AO will decide issue after affording assessee opportunity of being heard. Issue 5: Disallowance of rental expenditure – Whether DRP has erred in upholding action of AO in disallowing provision for rental expenditure – HELD – Deduction has been claimed by assessee towards provision for rental expenses based on possibility of increase in rental expenses and this was rightly treated as contingent in nature and not allowed as a deduction by Revenue authorities – Assessee has not given any basis for its anticipated liability towards rental expenses nor has he quantified basis of arriving at anticipated liability – Revenue authorities were justified in rejected claim of assessee