2012 (12) TMI 1041 - AT - Income Tax

Additions by way of Transfer Pricing adjustments on payment of royalty - Held that - manufacturing of goods by the assessee was in any case not possible without the technical knowhow and assistance from SCJ (Associated Enterprise) in Japan - assessee entered into an agreement for obtaining license to manufacture specified insecticides and pesticides and agreed to pay 5% royalty on the value addition and RBI has approved it - is also not necessary for the assessee to show that any expenditure incurred by him for the purpose of business carried on by him has actually resulted in profit or income either in the same year or in any of the subsequent years - The only condition is that the expenditure should have been incurred wholly and exclusively for the purpose of business - since royalty is paid for allowing assessee in utilizing the technical knowhow and the license for manufacturing activity, we are of the opinion that the payment of royalty is wholly and exclusively for the purpose of business - Hence AO to allow the royalty as claimed - following the order of coordinate bench of this Tribunal dated 7th November, 2012 (supra) passed in assessee s own case - decided in favor of assessee

Summary

Issues Involved:
1. Transfer Pricing (T.P.) adjustment on account of royalty payment.
2. Determination of arms length price (ALP) for royalty payment.
3. Classification of the assessee's business model as contract manufacturing.
4. Methodology and justification for T.P. adjustment by the Transfer Pricing Officer (TPO) and Assessing Officer (AO).
5. Applicability of relevant case laws and guidelines.

Detailed Analysis:

1. Transfer Pricing (T.P.) Adjustment on Account of Royalty Payment:
The primary issue in this case pertains to the addition made by the AO and sustained by the CIT(A) amounting to Rs. 64,75,807/- as a T.P. adjustment on account of royalty payment. The assessee, a company engaged in manufacturing pesticides, paid royalty to its associate enterprise (AE), Sumitomo Chemical Co. Ltd., Japan (SCJ), for technical knowhow. The TPO, however, determined the arms length price of the royalty to be Nil, leading to the adjustment.

2. Determination of Arms Length Price (ALP) for Royalty Payment:
The TPO's determination of the ALP at Nil was based on the assertion that the assessee was a contract manufacturer and, therefore, should not have paid any royalty. The TPO's reasoning included the restriction on the assessee for commercial exploitation of the technical know-how and the fact that the sales were primarily to another group entity. The CIT(A) upheld this view, stating that the royalty payment was unjustified as the assessee's business model resembled contract manufacturing, which typically does not involve royalty payments.

3. Classification of the Assessee's Business Model as Contract Manufacturing:
The TPO and CIT(A) classified the assessee's business model as contract manufacturing due to the control exercised by SCJ over the sales and the restriction on the assessee's commercial exploitation of the technical know-how. The CIT(A) noted that nearly 95% of the sales were to SCI India, another group company, and the sales to third parties were minimal and reducing. This classification was a key factor in the disallowance of the royalty payment.

4. Methodology and Justification for T.P. Adjustment by the TPO and AO:
The CIT(A) supported the TPO's method, stating that the CUP (Comparable Uncontrolled Price) method was appropriate for determining the ALP of the royalty. The CIT(A) reasoned that since the assessee was a contract manufacturer with restricted commercial freedom, the royalty payment should be Nil for sales to the group company, but allowable for sales to third parties. The TPO did not follow the prescribed methods for determining the ALP, leading to the assessee's contention that the adjustment was not sustainable.

5. Applicability of Relevant Case Laws and Guidelines:
The Tribunal referred to its earlier order dated 7th November 2012, for assessment years 2003-04 and 2004-05, where a similar T.P. adjustment was held to be unsustainable. The Tribunal cited the Delhi High Court's decision in CIT vs. EKL Appliances, which emphasized that the TPO's role is to determine the ALP, not to question the necessity or prudence of the expenditure. The Tribunal concluded that the royalty payment was wholly and exclusively for business purposes and directed the AO to allow the royalty as claimed.

Conclusion:
The Tribunal, following its earlier decision and relevant case laws, held that the T.P. adjustment made by the AO and sustained by the CIT(A) was not justified. The royalty payment was deemed necessary for the assessee's business, and the addition of Rs. 64,75,807/- was deleted. The appeal of the assessee was allowed, and the royalty payment was directed to be allowed as claimed.