2011 (9) TMI 226 - AT - Income Tax

Arm s length price of international transaction - Adjustment - Reference to TPO - The assessee has selected TNMM method i.e. transactional net margin method for determining the ALP - Learned TPO has recommended the adjustments of Rs.16,92,32,410 in the ALP of international transaction vide his order dated 30th September 2009 passed under sec. 92CA(3) of the Income-tax Act, 1961. The assessee had submitted before the learned DRP that TPO has erred in including and excluding the comparables for working the PLI, however, learned DRP has concurred with the findings of the learned TPO without taking cognizance of facts and circumstances, particularly the details of comparables produced by the assessee. The learned DRP has not assigned any reason for concurring with the learned TPO. To our mind, it is necessary for the learned DRP to consider the facts and circumstances and record reasons in support of its order so that higher appellate forum can appreciate what weigh with the collegium of three senior officers of the revenue department to concur with the conclusion drawn by the learned TPO.

Summary

Issues:
1. Adjustment in the arm's length price of international transaction with associate enterprises.
2. Levy of interest under sec. 234B.
3. Initiation of penalty under sec. 271(1)(c) of the Act.

Adjustment in the Arm's Length Price of International Transaction:
The appeal challenged the adjustment made in the arm's length price of the international transaction with associate enterprises. The assessee company provided software development and business process management services. The Assessing Officer identified various international transactions with associate enterprises. The Transfer Pricing Officer (TPO) recommended an adjustment in the arm's length price of Rs. 16,92,32,410. The assessee contended that it maintained proper transfer pricing documentation as required by law and selected the Transactional Net Margin Method (TNMM) for determining the arm's length price. The TPO applied additional quantitative filters in determining the profit level indicator, leading to the exclusion of certain comparables selected by the assessee. The Dispute Resolution Panel upheld the TPO's decision, rejecting the assessee's objections regarding the comparables and risk analysis. However, the Panel directed the exclusion of a specific comparable and instructed the TPO to rework the TP adjustment. The Tribunal found the Panel's order lacking in reasoning and remitted the issue back to the Panel for a detailed adjudication based on the assessee's objections, emphasizing the need for a reasoned order.

Levy of Interest under sec. 234B:
The issue of charging interest under sec. 234B was also remitted to the Dispute Resolution Panel for further consideration. The Tribunal did not provide a specific direction regarding the timeline for resolving this issue, emphasizing the importance of timely disposal of the assessee's objections. The decision to remit this issue back to the Panel was part of the overall remittance of the appeal for further adjudication.

Initiation of Penalty under sec. 271(1)(c) of the Act:
Regarding the initiation of penalty under sec. 271(1)(c) of the Act, the Tribunal deemed it premature to challenge this in the present appeal. The assessee was advised to address the penalty proceedings separately before the Assessing Officer or the relevant authority. The Tribunal emphasized that the assessee would have an independent opportunity to contest the penalty imposition and appeal the decision, indicating that such a plea could not be entertained in the current appeal. Consequently, this ground of appeal was rejected.

This detailed analysis of the judgment highlights the key issues involved in the appeal before the Appellate Tribunal ITAT DELHI, providing a comprehensive overview of the Tribunal's decision and the directions given for further consideration by the Dispute Resolution Panel.