2010 (10) TMI 693 - AT - Income Tax

Arms length price Interest u/s 234D - As per the Audit report in Form 3CEB, the assessee has aggregated the above transactions into two heads (i) Trading Functions & (ii) Project Functions - Search is conducted by TPO and as per the search the arithmetical mean was working out to 5.65% - The A.O. also declined to consider the results Mahindra Ashtech Ltd. as in view of the TPO, the results shown by the said company was on account of abnormal circumstances being faced by the company - However, while passing the transfer pricing order, the TPO has not considered this analysis and concluded that the transactions under the project business as not meeting the arm s length test merely on the fact that the project business of the appellant incurred losses - The order of the TPO u/s.92CA(3) which has been adopted by the A.O. suffers from non-application of mind as well as in gross violation of the principles of natural justice Matter is remanded back to AO for fresh adjudication - Accordingly, ground nos.2 to 5 are allowed for statistical purpose Regarding interest u/s 234D - in the case of Ekta Promoters (2008 -TMI - 65270 - ITAT DELHI-E) the issue is covered in favor of assessee. Accordingly, additional ground is allowed

Summary

Issues Involved:
1. Computation of Arm's Length Price (ALP)
2. Rejection of Comparable Companies
3. Consideration of Adjusted Net Profit Margin (NPM)
4. Levy of Interest under Section 234D

Detailed Analysis:

1. Computation of Arm's Length Price (ALP):
The primary issue in the appeal concerns the determination of the ALP by way of adjustment under Section 92CA(3) of the Income Tax Act. The assessee challenged the assessment order for the A.Y. 2003-04, arguing that the Transfer Pricing Officer (TPO) did not provide an opportunity to respond to the data used for computing the ALP. The TPO's adjustment was based on a comparison with companies that had an average NPM of 5.9%, while the assessee reported an NPM of 2.50%. The TPO's adjustment was challenged on the grounds that it did not consider the exceptional and non-recurring expenses affecting the assessee's profitability.

2. Rejection of Comparable Companies:
The TPO rejected one of the comparable companies, Mahindra Ashtech Ltd., which reported a loss of (-)10.47%. The TPO argued that this company's data was not reliable due to its loss-making status. The assessee contended that the TPO should have considered all comparables, including loss-making entities, for a fair assessment. The TPO's rejection of Mahindra Ashtech Ltd. was based on the premise that the company's losses were due to abnormal circumstances, which the assessee disputed.

3. Consideration of Adjusted Net Profit Margin (NPM):
The assessee argued that the TPO failed to consider the adjusted NPM, which accounted for exceptional and non-recurring expenses. The CIT (A) partially accepted the assessee's claim by recognizing certain exceptional expenses but did not fully agree with the assessee's adjustments. The CIT (A) concluded that the TPO's rejection of the assessee's analysis was justified, as the claimed exceptional expenses were not adequately substantiated with evidence.

4. Levy of Interest under Section 234D:
The additional ground raised by the assessee concerned the levy of interest under Section 234D. The assessee argued that Section 234D was not applicable for the assessment year 2003-04, as it came into effect from 1-6-2003, relevant to the A.Y. 2004-05. The Tribunal admitted this additional ground, following the principles laid down by the Supreme Court in the case of Thermal Power Corporation Ltd. The Tribunal ruled in favor of the assessee, citing the decision of the Special Bench of the ITAT in the case of Ekta Promoters, which held that no interest could be charged prior to 1-6-2003.

Conclusion:
The Tribunal found merit in the assessee's argument regarding the violation of natural justice principles by the TPO. The TPO's order was deemed to suffer from non-application of mind and a lack of transparency, as the data used for adjustments was not shared with the assessee. Consequently, the Tribunal remanded the issue of ALP determination back to the Assessing Officer for fresh adjudication. The appeal was partly allowed for statistical purposes, and the additional ground concerning Section 234D was decided in favor of the assessee.