2011 (8) TMI 329 - AT - Income Tax

Determination of Arm s Length Price - Comparable value - nature of services - Held that - services are (i) new erection; (ii) machinery re-location/dismantling; (iii) Upgrade/conversion overhaul repairs; (iv) repairs and services on electric equipment. Though the nature of services do vary the fact remains that they broadly fall under a common category of installation services warranty services and after-sales-services. In our opinion the nature of services does not vary significantly. - TNMM is more broad based and the variation in the type of services as in this case can be absorbed in this method. Comparable - the TPO failed to bring out appropriate external comparables for bench-marking the transactions - It appears that the basis of selection of a comparable depended upon the quantum of adjustment that it would permit rather than other factors - As per the Assessing Officer it seems the stand is the higher the margin the greater the comparability - This approach has to be necessarily quashed.

Summary

Issues Involved:
1. Legitimacy of the Transfer Pricing Adjustment for the technical services segment.
2. Appropriateness of the Transactional Net Margin Method (TNMM) adopted by the assessee.
3. Validity of the comparable cases selected by the Transfer Pricing Officer (TPO).

Detailed Analysis:

1. Legitimacy of the Transfer Pricing Adjustment for the Technical Services Segment:
The core issue adjudicated was whether the Commissioner (Appeals) was justified in deleting the transfer pricing adjustment made concerning the technical services segment for the assessment years 2003-04 and 2004-05. The TPO had made adjustments based on the operating profit margins of comparable companies, which were disputed by the assessee.

2. Appropriateness of the Transactional Net Margin Method (TNMM) Adopted by the Assessee:
The assessee used the TNMM to determine the Arm's Length Price for its international transactions, comparing margins from related and unrelated party transactions. The TPO rejected this method, arguing that the services provided to associated enterprises (A.E.) and third parties were not identical. However, the Commissioner (Appeals) found that the TPO did not provide cogent reasons for rejecting the internal TNMM method and upheld the assessee's approach. The Tribunal agreed, noting that TNMM is more broad-based and tolerant of variations in comparability.

3. Validity of the Comparable Cases Selected by the Transfer Pricing Officer (TPO):
The TPO's selection of comparable cases was inconsistent across the two assessment years. For 2003-04, L&T Sergeant Lundy Ltd. was considered comparable due to its 52% operating profit margin, while M/s. Vimta Labs was rejected. Conversely, for 2004-05, L&T was rejected due to a negative margin, and M/s. Vimta Labs was accepted with a 61.4% margin. The Tribunal found this approach flawed, emphasizing that the selection of comparables should not be based solely on the quantum of adjustment they permit. The Tribunal upheld the Commissioner (Appeals)'s findings that the TPO's reasons for accepting or rejecting comparables were unsound.

Conclusion:
The Tribunal upheld the findings of the Commissioner (Appeals) on all counts:
1. The TPO did not substantiate the claim that services to third parties were different from those provided through A.E.
2. The TNMM method adopted by the assessee was justified.
3. Internal comparables should be preferred over external comparables.
4. The TPO's rationale for rejecting or accepting external comparables was flawed.
5. The transfer pricing adjustments for both assessment years were to be deleted.

Result:
The revenue's appeals for both assessment years were dismissed.