2012 (8) TMI 256 - AT - Income Tax

Transfer pricing - Arm s length price - assessee used adjusted profit computed in relation to sales affected as appropriate PLI - TPO found that profits of comparable companies was 8.47 per cent as against that of assessee at 12.18 per cent and accordingly, he proposed Transfer Price adjustment - Commissioner held that 30 per cent of travelling and conveyance, legal and professional charges and communication expenses were extraordinary expenses Held that - Commissioner of Income Tax (Appeals) thus failed to follow rules of natural justice, as there was apparent violation of Rule 46A in as much as no opportunity was provided to the TPO - order of the Ld. Commissioner of Income Tax (Appeals) is non-speaking order as it does not give reasons for making adjustment to the operating results of tested party i.e. assessee - not clear how she arrived at the conclusion that 30% of expenses were extraordinary and required adjustment - assessee company had not claimed any adjustment on account of specified expense in the Transfer Pricing Study or documentation prepared under Rule 10D read with section 92D of the Act - matter remitted to the file of the Ld. Commissioner of Income Tax - assessee s cross objection stand allowed for statistical purposes.

Issues Involved:
1. Erroneous and contrary order by the Ld. Commissioner of Income Tax (Appeals).
2. Deletion of Rs. 50,27,784/- TPO adjustment by the Ld. Commissioner of Income Tax (Appeals).
3. Mechanical reference to the TPO by the Assessing Officer.
4. Mechanical acceptance of TPO's recommendation by the Assessing Officer.
5. Correct Profit Level Indicator (PLI) for TNMM.
6. Consideration of heavy start-up costs for adjustments.
7. Use of multiple year data vs. single year.
8. Entitlement to +-5% range benefit under Proviso 92C(2) of the Act.
9. Initiation of penalty proceedings under section 271(1)(c) of the Act.

Detailed Analysis:

1. Erroneous and Contrary Order:
The Revenue contended that the order by the Ld. Commissioner of Income Tax (Appeals) was erroneous and contrary to facts and law. The Tribunal did not specifically address this general contention but focused on specific grounds raised.

2. Deletion of Rs. 50,27,784/- TPO Adjustment:
The Revenue argued that the Ld. Commissioner of Income Tax (Appeals) erred in deleting the addition made by the Assessing Officer under section 92CA of the Act on account of TPO adjustment. The Tribunal found that the Ld. Commissioner of Income Tax (Appeals) had made adjustments to the operating results of the tested party (assessee) without providing a clear basis for the 30% extraordinary expense adjustment. The Tribunal remitted the matter back to the Ld. Commissioner of Income Tax (Appeals) for fresh consideration, emphasizing the need for a speaking order and adherence to Rule 46A.

3. Mechanical Reference to the TPO:
The Assessee contended that the reference to the TPO by the Assessing Officer was mechanical and void-ab-initio. The Ld. Commissioner of Income Tax (Appeals) decided this issue in favor of the Revenue, and the Tribunal did not find it necessary to revisit this conclusion.

4. Mechanical Acceptance of TPO's Recommendation:
The Assessee argued that the Assessing Officer mechanically accepted the TPO's recommendations without a speaking order. The Ld. Commissioner of Income Tax (Appeals) upheld the Revenue's stance, and the Tribunal did not overturn this finding.

5. Correct Profit Level Indicator (PLI):
The Assessee used adjusted profit as the PLI, while the TPO used operating profit by operating revenue. The Ld. Commissioner of Income Tax (Appeals) and the Tribunal agreed with the TPO's method, reaffirming that under TNMM, the net operating margin should be considered.

6. Consideration of Heavy Start-Up Costs:
The Ld. Commissioner of Income Tax (Appeals) acknowledged that the Assessee, being in its second year of operations, incurred heavy start-up costs and allowed a 30% adjustment for extraordinary expenses. However, the Tribunal found that this adjustment was not sufficiently justified and remitted the issue back for reconsideration, ensuring adherence to Rule 46A and providing the TPO an opportunity to be heard.

7. Use of Multiple Year Data vs. Single Year:
The Assessee's preference for multiple year data was rejected by the Ld. Commissioner of Income Tax (Appeals), who upheld the TPO's use of single year data. The Tribunal did not find grounds to challenge this decision.

8. Entitlement to +-5% Range Benefit:
The Ld. Commissioner of Income Tax (Appeals) computed the arm's length price and concluded that the Assessee's transactions fell within the +-5% range, thus deeming them at arm's length. The Tribunal did not dispute this finding.

9. Initiation of Penalty Proceedings:
The Assessee's contention regarding the initiation of penalty proceedings under section 271(1)(c) was not specifically addressed in the Tribunal's order, indicating that this issue was not central to the decision.

Conclusion:
The Tribunal allowed the Revenue's appeal and the Assessee's cross-objection for statistical purposes, remitting the matter back to the Ld. Commissioner of Income Tax (Appeals) to reconsider the issue of start-up cost adjustments afresh, ensuring natural justice and providing the TPO an opportunity to be heard.

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