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2010 (3) TMI 872 - AT - Income TaxTransfer pricing - Computation of arm s length price - TNMM method - HELD THAT - We find that the TPO and the CIT(A) have assumed similarity of markets and economic conditions and have made adjustments only for the volume discount, credit offered and a small adjustment of credit risk. They have completely ignored the disparate economic and market conditions of Thailand and Vietnam and have made no adjustment for the same. Mere geographical contiguity of two countries need not mean similarity in economic or market conditions. How can the sale prices to wholesale agents in two different countries be comparable, when the sale price to the final user in one country is less than the sale price to the whole sale agent in another country, unless adjustment for the same has been considered. Thus, the adjustments merely for volume offtake, credit period and credit risk, though material are not sufficient to make the sale price to AE in Thailand comparable with the sale to unrelated party in Vietnam. Scope of adjustments has to be widened and all the submissions of the assessee regarding the disparity between the two transactions should be considered and suitable adjustments made for the same. With the directions, the issue is set aside to the file of the ld. CIT(A) for deciding the matter afresh after giving reasonable opportunity to the assessee to present their case. In the result, the appeal filed by the assessee is allowed for statistical purposes. Disallowance on expenditure - Other expenses - We find no infirmity in the order of the ld. CIT(A) as ad hoc disallowance out of the business expenditure cannot be sustained. Following the ratio of decisions in the case of Sunder Mal Sat Pal v. ITO 2005 (1) TMI 312 - ITAT AMRITSAR and Ravi Marketing (P.) Ltd. v. CIT 2005 (1) TMI 20 - CALCUTTA HIGH COURT , we dismiss this ground of revenue. In the result, the appeal filed by the revenue is dismissed.
Issues Involved:
1. Adjustment of Rs. 21,95,034 made by the Transfer Pricing Officer (TPO) in respect of transactions with associated enterprises. 2. Deletion of disallowance of Rs. 83,726 made by the Assessing Officer out of various expenses. Detailed Analysis: 1. Adjustment of Rs. 21,95,034 by the TPO: Background: The assessee, engaged in manufacturing and trading of animal health and veterinary products, had various international transactions with associated enterprises (AEs). The TPO made an adjustment of Rs. 21,95,034, which was partly confirmed by the CIT(A). TPO's Findings: The TPO noted that for Floxdin 10% (50ml), the price charged to AEs was significantly lower than that charged to independent enterprises. The TPO considered the Comparable Uncontrolled Price (CUP) method as the most appropriate, rejecting the assessee's use of the Transactional Net Margin Method (TNMM). The TPO made adjustments based on volume factor, credit period, and credit risk, but did not accept the full extent of the assessee's justifications, leading to an upward adjustment of Rs. 2,717,821. CIT(A)'s Decision: The CIT(A) upheld the use of the CUP method over the TNMM, emphasizing that the CUP method provides a direct comparison. However, the CIT(A) adjusted the TPO's calculations, allowing a higher adjustment for volume factor (20% instead of 10%) and a slightly higher adjustment for credit period (0.6% instead of 0.5%). Assessee's Appeal: The assessee argued that the economic and market conditions of Thailand (where the AE is located) and Vietnam (where the independent enterprise is located) are significantly different. The assessee also pointed out that the sale price of the vaccine by the AE in Thailand to an unrelated customer was lower than the price charged by the assessee to the independent party in Vietnam. Tribunal's Decision: The Tribunal agreed with the assessee that the economic and market conditions of Thailand and Vietnam are different and that the TPO and CIT(A) did not consider all material factors affecting the price. The Tribunal directed the CIT(A) to re-examine the adjustments, considering all the assessee's submissions regarding the disparity between the two transactions. 2. Deletion of Disallowance of Rs. 83,726: Background: The Assessing Officer disallowed 10% of certain expenditures under various heads on an ad hoc basis, amounting to Rs. 83,726. CIT(A)'s Decision: The CIT(A) deleted the disallowance, noting that the assessee's accounts were audited without adverse remarks and that the quantum of other miscellaneous expenses was not material (only 4.96% of total expenses). The CIT(A) found the ad hoc disallowance unjustified. Revenue's Appeal: The revenue contested the deletion of the disallowance, arguing that the assessee failed to substantiate the claim. Tribunal's Decision: The Tribunal upheld the CIT(A)'s decision, finding no infirmity in the order. The Tribunal emphasized that ad hoc disallowances out of business expenditure cannot be sustained and dismissed the revenue's appeal. Conclusion: - The appeal filed by the assessee regarding the transfer pricing adjustment was allowed for statistical purposes, with directions to the CIT(A) to re-examine the issue. - The appeal filed by the revenue regarding the disallowance of Rs. 83,726 was dismissed.
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