2011 (1) TMI 97 - AT - Income Tax

Arm s length price - The assessee is a foreign company having a branch office inIndia and also has an associate enterprise (AE) - M/s. Intel Technologies India Pvt. Ltd. (ITIPL) - and primarily engaged in providing sales and marketing support service - Since the Indian branch of the assessee is sold as a going concern, will it result in any consequence to determine the method to be adopted in valuing the assets of the assessee - The assessee has determined the value of the assets sold in accordance with the certificate issued by the Chartered Engineer and Registered Valuer. The valuation based on the WDV worked out as per the Income Tax Act will be most appropriate since the valuation report of the Registered Valuer and Chartered Engineer is rejected. The valuation report of the Registered Valuer and Chartered Engineer requires to be rejected is justified The Indian Branch of the assessee is sold as a going concern. - this fact will also have some consequences in determining the ALP because factors like profitability of the branch office, goodwill, and various other commercial and technical aspects will have a bearing when the AE takes over the branch office of the appellant. However, neither the Ld. AO nor the Ld. CIT(A) have made any reference on any factors on this regard in this given case and, therefore, matter remanded back to AO.

Issues Involved:
1. Adoption of valuation method for assets.
2. Rejection of valuation report by a Chartered Engineer and Registered Valuer.
3. Consequences of selling the Indian branch as a going concern on the valuation method.

Issue-Wise Detailed Analysis:

1. Adoption of Valuation Method for Assets:
The primary issue was whether the valuation of the assets should be based on the written down value (WDV) as per the Company Law or the value determined by the Registered Valuer and Chartered Engineer using the Comparable Uncontrolled Price method (CUPM). The Revenue argued that the valuation by the Registered Valuer was arbitrary and lacked a reasonable basis. The Tribunal found instances where depreciation rates applied by the valuer were unreasonably high. The Tribunal agreed with the Revenue's rejection of the valuer's report and concluded that the WDV as per the Income Tax Act would be the most appropriate method for determining the arm's length price (ALP).

2. Rejection of Valuation Report by a Chartered Engineer and Registered Valuer:
The Tribunal examined the reasons for the rejection of the valuation report. The Revenue contended that the report was based on arbitrary rates and unreasonable assumptions. The Tribunal found that the depreciation rates used by the valuer for various assets, such as furniture and fixtures, were excessively high and lacked proper reasoning. For example, Godrej safes were depreciated at 90%, and computers and accessories at 100% or 90%, which was deemed unreasonable. Consequently, the Tribunal upheld the rejection of the valuation report.

3. Consequences of Selling the Indian Branch as a Going Concern:
The Tribunal acknowledged that selling the Indian branch as a going concern could influence the valuation method due to factors like profitability, goodwill, and other commercial and technical aspects. However, since neither the Assessing Officer (AO) nor the Commissioner of Income Tax (Appeals) [CIT(A)] had addressed these factors, the Tribunal refrained from commenting on this aspect. The Tribunal directed the AO to determine the ALP by adopting the WDV method as per the Income Tax Act, considering the dynamic nature of the depreciation rates under this Act.

Conclusion:
The Tribunal concluded that the valuation based on WDV as per the Income Tax Act should be adopted, rejecting the valuation report of the Registered Valuer and Chartered Engineer. The Tribunal remitted the matter back to the AO to determine the ALP using the WDV method, after providing the assessee an opportunity to be heard. The appeal was allowed for statistical purposes.

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