2016 (12) TMI 1600 - HC - Income Tax

TPA - selection of comparable - Tribunal excluding two comparables viz. Indowind Energy Ltd. and B. F. Utilities Ltd. - Held that - The impugned order of the Tribunal holding that a party is not barred in law from withdrawing from its list of comparables a company if the same is found to have been included on account of mistake as on facts it is not comparable. The Transfer Pricing Mechanism requires comparability analysis to be done between like companies and controlled and uncontrolled transactions. This comparison has to be done between like companies and requires carrying out of FAR analysis to find the same. Moreover the Assessee s submission in arriving at the ALP is not final. It is for the TPO to examine and find out the companies listed as comparables which are in fact comparable. The impugned order has on FAR analysis found that M/s. Indowind Energy Ltd. and B. F. Utilities Ltd. are not comparable. They are in a different area i.e. wind energy while the Respondent-Assessee is in the field of solar energy. No substantial question of law. Determination of Arm s Length Price (ALP) with regard to Sales made to AEs and not on entire sales - Held that - Issue raised herein is concluded against the Revenue and in favour of the Respondent-Assessee by the decision of this Court in CIT v/s. Tara Jewellers Pvt. Ltd. 2015 (12) TMI 1130 - BOMBAY HIGH COURT

Summary

Issues:
1. Exclusion of comparables for determination of Arm's Length Price (ALP) of international transaction with Associated Enterprises (AEs).
2. Determination of ALP with regard to specific sales made to AEs.

Analysis:

Issue 1: Exclusion of comparables for ALP determination
The Respondent-Assessee engaged in solar energy reported international transactions with AEs and included M/s. Indowind Energy Ltd. and B. F. Utilities Ltd. as comparables in the Transfer Pricing Study. However, before the Transfer Pricing Officer (TPO), the Assessee sought to withdraw these comparables due to functional differences. The TPO did not permit this withdrawal, leading to a draft Assessment Order based on the inclusion of these comparables. The Draft Resolution Panel (DRP) also upheld the inclusion, stating that the Assessee's reliance on these comparables initially barred it from withdrawing them later. The Tribunal, in its impugned order, allowed the Assessee's appeal, emphasizing that the inclusion of comparables initially does not prevent a party from proving their non-comparability. The Tribunal, through Function, Assets & Risk (FAR) analysis, excluded the comparables based on their engagement in wind energy, which differed from the Assessee's solar energy business. The Tribunal highlighted that the Transfer Pricing Mechanism necessitates a thorough comparability analysis based on FAR to determine comparables accurately.

Issue 2: Determination of ALP for specific sales to AEs
Regarding the second issue, the Revenue acknowledged that the matter had been settled in favor of the Respondent-Assessee by a previous court decision. Citing the decision in CIT v/s. Tara Jewellers Pvt. Ltd., the Revenue accepted that the issue did not raise any substantial question of law. Consequently, the Court did not entertain this issue. As a result, the Appeal was dismissed with no order as to costs.

In conclusion, the judgment addressed the challenges related to the exclusion of comparables for ALP determination and the specific determination of ALP for sales made to AEs. The detailed analysis provided insights into the legal reasoning behind the Tribunal's decision and the application of Transfer Pricing Mechanism principles in resolving the issues at hand.