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2023 (9) TMI 96 - AT - Income TaxTP Adjustment - ALP determination - Comparable selection - assessee has applied TNMM Method to benchmark the transactions - TPO held that the main activity of the assessee is marketing activity and assessee is getting remunerated for marketing functions with a fixed mark-up - HELD THAT - Respectfully following the decision of ITAT Pune 2023 (1) TMI 1076 - ITAT PUNE , we uphold the order of the TPO qua nature of the activity. We hereby hold that assessee s main activity is marketing activity. Therefore, comparable engaged in Distribution Activity, as selected by the assessee in TPSR, are not comparable to the functions performed by the assessee. Accordingly, Ground No's.1 to 3 raised by the Revenue are Allowed. CIT(A) s decision that Dynacons Technologies, Integra Telecommunications and JMD Telefilms are comparables to assessee - As observed that the ld.CIT(A) has not adjudicated the issue of comparability of these comparable on merits. Therefore, the said issue is set-aside to the file of ld.CIT(A) for denovo adjudication. The ld.CIT(A) shall give opportunity to the Assessee and Revenue. Accordingly, Ground No.4 is allowed for statistical purpose.
Issues Involved:
1. Whether the assessee is engaged in distribution activity or marketing support services (MSS). 2. Selection and rejection of comparables and filters for benchmarking analysis. 3. Determination of Profit Level Indicator (PLI) at OP/OR level instead of OP/OC. 4. Functional comparability of certain companies to the assessee. 5. Treatment of foreign exchange gain as operating or non-operating in nature. 6. Adjudication of certain grounds of appeal by CIT(A) considering them pre-mature. Summary of Judgment: Issue 1: Nature of Assessee's Activity The primary issue was whether the assessee was engaged in distribution activity or marketing support services (MSS). The Transfer Pricing Officer (TPO) concluded that the main activity of the assessee was marketing activity, with the assessee getting remunerated for marketing functions with a fixed mark-up. The Tribunal upheld the TPO's view, stating, "assessee's main activity is nothing but marketing activity," and thus, the assessee's functions were not comparable to those engaged in distribution activity. Issue 2: Selection and Rejection of Comparables The Tribunal noted that the comparables selected by the assessee were functionally different as they were engaged in trading activities rather than marketing support services. The Tribunal upheld the TPO's selection of comparables, stating, "comparables selected by assessee cannot be considered as comparables due to different functional profile." Issue 3: Determination of PLI The Tribunal upheld the TPO's determination of the Profit Level Indicator (PLI) at OP/OC level instead of OP/OR, aligning with the nature of the assessee's activities being marketing support services rather than distribution. Issue 4: Functional Comparability The Tribunal found that the CIT(A) had not adjudicated the issue of comparability of Dynacons Technologies, Integra Telecommunications, and JMD Telefilms on merits. Therefore, this issue was set aside to the file of CIT(A) for de novo adjudication. Issue 5: Treatment of Foreign Exchange Gain The Tribunal held that foreign exchange gain should be considered as operating in nature, citing precedent from the Pune Bench of the Tribunal and the Hon'ble Delhi High Court in Pr.CIT Vs. BC Management Services Pvt. Ltd. Issue 6: Adjudication of Certain Grounds by CIT(A) The Tribunal noted that the CIT(A) had not adjudicated certain grounds raised by the assessee, considering them academic or pre-mature. These issues were set aside for de novo adjudication by the CIT(A). Conclusion: The Tribunal allowed the appeal of the Revenue in part, upholding the TPO's findings on the nature of the assessee's activities and the selection of comparables. The Tribunal also set aside certain issues to the CIT(A) for de novo adjudication and dismissed some grounds as academic or pre-mature. The cross-objection by the assessee was partly allowed for statistical purposes.
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