2010 (10) TMI 1077 - AT - Income Tax

Transfer Price adjustment on total Income - HELD THAT - the fact that the profit declared by the supplier an associated enterprise is only 2.1% in this year and therefore its sales to the assessee should be held to be at arm s length because of low profitability. The alternative case of the ld. counsel is that raw-material supplied by the associated enterprise constitutes only 40% of the total raw-material consumed in this year and therefore any variation on account of transfer pricing can be made in respect of 40% of the turnover. Both these matters have not been considered by the lower authorities. Of course the ld. counsel has not filed detailed accounts of the associated enterprise in order to ascertain whether its transactions are at arm s length or its transactions or part thereof contain controlled transactions. The matter regarding applicability of adjustment to 40% of the total turnover is based upon the decision of the coordinate Bench in the case of Il Jin Electronics India (P) Ltd. 2009 (11) TMI 669 - ITAT DELHI which is a precedent of binding nature. However since both the matters require further verification of facts on the part of the AO we accept the suggestion of the ld. counsel that the matter may be remanded to the AO for fresh adjudication in the matter keeping in view both these points. Regarding operating profit to sales - HELD THAT - The revenue has taken two substantive grounds in its appeal to the effect that the ld. CIT(A) erred in adopting the PLI as the ratio of operating profit to sales as against the ratio of operating profit to total cost adopted by the AO. It is also mentioned that he erred in reducing the amount of adjustments made by the AO to 4, 62, 43, 567/-. this matter is also remanded to the AO for fresh adjudication with the further direction that both the parties will be at liberty to agitate the whole matter afresh and will be entitled to bring on record any fresh evidence as thought fit.

Issues Involved:
1. Adjustment of Rs. 4,62,43,567/- out of the total adjustment of Rs. 5,77,33,054/- made by the TPO in respect of international transactions.
2. Non-disposal of ground related to disallowance of Rs. 17,70,000 on account of royalty payment.
3. Disallowance of Rs. 17,70,000 out of Rs. 70,80,000 claimed as revenue expenditure on account of royalty payment by treating it as capital in nature.
4. Non-allowance of depreciation under section 32 on the sum of Rs. 17,70,000 disallowed as capital expenditure.

Detailed Analysis:

1. Adjustment of Rs. 4,62,43,567/- in International Transactions:
The assessee contested that the CIT(A) erred in confirming the adjustment of Rs. 4,62,43,567/- out of the total adjustment of Rs. 5,77,33,054/- made by the TPO regarding international transactions with its overseas associated enterprises (AEs). The CIT(A) determined the Profit Level Indicator (PLI) as the ratio of operating profit to sales, rejecting the assessee's contention that it should be the ratio of operating profit to capital employed. The CIT(A) also held that only current year data is relevant for comparative analysis. The CIT(A) selected 9 comparable cases and determined the net profit at 8.98% of total sales against 2.22% declared by the assessee, leading to the confirmation of the adjustment.

The assessee argued that the CIT(A) should have adopted the PLI as the ratio of operating profit to total cost, as applied in the assessment year 2001-02. They also presented a certificate indicating that the supplier's operating profit was 2.1%, suggesting that transactions were at arm's length. The Tribunal found that both the profit margin of the supplier and the applicability of adjustment to 40% of the total turnover were not considered by the lower authorities. Therefore, the matter was remanded to the AO for fresh adjudication.

2. Non-disposal of Ground Related to Disallowance of Rs. 17,70,000 on Account of Royalty Payment:
The assessee raised the issue that the CIT(A) did not dispose of ground no. 3 and 3.1 related to the disallowance of Rs. 17,70,000 on account of royalty payment to Kyungshin Industrial Corporation, Korea. The Tribunal noted this oversight and decided to restore this issue to the AO for fresh adjudication.

3. Disallowance of Rs. 17,70,000 out of Rs. 70,80,000 Claimed as Revenue Expenditure on Account of Royalty Payment:
The assessee contended that the AO erred in disallowing Rs. 17,70,000 out of Rs. 70,80,000 claimed as revenue expenditure on account of royalty payment by treating it as capital in nature. The Tribunal decided to remand this issue along with the main issue to the AO for fresh adjudication, considering various case laws.

4. Non-allowance of Depreciation under Section 32 on the Sum of Rs. 17,70,000 Disallowed as Capital Expenditure:
The assessee argued that the AO did not allow depreciation under section 32 on the sum of Rs. 17,70,000 disallowed as capital expenditure. Since the main issue was being restored to the AO, the Tribunal also remanded this matter for fresh adjudication by the AO.

Appeal of the Revenue:
The revenue's appeal contested the CIT(A)'s adoption of the PLI as the ratio of operating profit to sales instead of the ratio of operating profit to total cost, and the reduction of adjustments made by the AO to Rs. 4,62,43,567/-. Since the matter regarding transfer-price adjustment was remanded to the AO in the assessee's appeal, the Tribunal also remanded the revenue's appeal for fresh adjudication, allowing both parties to present fresh evidence.

Conclusion:
Both the assessee's and the revenue's appeals were allowed for statistical purposes, with the matters being remanded to the AO for fresh adjudication. The Tribunal emphasized the need for further verification of facts and consideration of relevant case laws in the adjudication process. The order was pronounced in the open court on 21 October, 2010.

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