2013 (1) TMI 806 - AT - Income Tax

Determination of Arms length price - whether closing stock to be included in calculation of operating profit margin - Held that - It is impermissible to add up figure of closing stock without giving effect to the figure of opening stock - Thus TPO is erred in computing operating profit - Remanded back for calculation of correct operating profit margin Disallowance of PF and ESIC dues - paid beyond the due date under respective Acts but before the due date of filing the return - Held that - since the amount is deposited before the due date of filing the return of income u/s 139(1) it cannot be disallowed - Decided in fravor of assessee

Summary

Issues:
1. Transfer pricing adjustment based on TNMM method.
2. Inclusion of closing stock in total income calculation.
3. Application of average margin of comparables to the entity as a whole.
4. Disallowance of PF and ESIC dues.

Transfer Pricing Adjustment based on TNMM Method:
The appeal was against the AO's order under section 143(3) r.w.s. 144C(13) of the Income Tax Act, 1961 for the assessment year 2006-07. The TPO applied the Transactional Net Margin Method (TNMM) instead of the Cost Plus method for benchmarking international transactions. The TPO calculated the operating profit of the assessee and made adjustments leading to an addition to the income. The AR contested the adjustment, arguing against the inclusion of closing stock in the total income and the application of the average margin of comparables to the entity as a whole.

Inclusion of Closing Stock in Total Income Calculation:
The AR contended that the figure of closing stock should be excluded from the total income as per TNMM guidelines. The Tribunal agreed, stating that the TPO erred in computing the operating profit by including the closing stock without considering the opening stock. The matter was remanded to the AO/TPO to determine the correct operating profit margin based on the total cost, ensuring consistency with comparable cases for benchmarking.

Application of Average Margin of Comparables to the Entity as a Whole:
The AR objected to the application of the average margin of comparables to the entity as a whole instead of transactions with associated enterprises (AEs) only. The Tribunal held that transfer pricing adjustments should be limited to transactions with AEs as per the Act's provisions. The impugned order was overturned, directing the AO/TPO to compute the arm's length price only for international transactions with AEs.

Disallowance of PF and ESIC Dues:
The AR contested the disallowance of PF and ESIC dues paid beyond the due date under respective Acts but before the due date of filing the income tax return. Citing relevant judgments, the Tribunal allowed the deduction as the deposits were made before the due date of filing the return under section 139(1) of the Act. The impugned order on this issue was overturned, and the ground was allowed.

In conclusion, the appeal was partly allowed, with the Tribunal addressing issues related to transfer pricing adjustments, inclusion of closing stock, application of margins, and disallowance of PF and ESIC dues. The judgment provided detailed analyses of each issue, ensuring compliance with transfer pricing regulations and relevant legal precedents.