2010 (2) TMI 855 - AT - Income Tax

Transfer pricing adjustment - assessee has not been able to place on record sufficient details and evidence before the tax authorities below to substantiate its claim of choosing correct comparables for application of RPM for determining the ALP as per mandatory provisions of r. 10B as per guidelines issued by OECD on transfer pricing and in accordance with the principles laid down by the Tribunal in their recent decisions i.e. Mentor Graphics (Noida) (P) Ltd. (2007 - TMI - 65518 - ITAT DELHI-H ) - tax authorities below/TPO while applying TNMM first have not conducted the independent study by choosing their own comparables and second in relying on six comparables out of seven-comparables used by the assessee for applying RPM have not done proper screening of such comparables in accordance with the guidelines laid down in the decisions (supra) by the Tribunal - Since the suggestion of the learned Authorised Representative for the assessee regarding setting aside the orders of the tax authorities below and restoring the matter to the file of the AO for deciding the matter afresh in entirety as per the guidelines issued in the cases (supra) by the Tribunal was in fact not opposed by the learned Departmental Representative for the Revenue; the learned Departmental Representative for the Revenue preferred not to advance any arguments on merit in support of the orders of tax authorities below Held that - matter is restored to the file of the AO for compliance. Consequently the grounds of appeal taken by the assessee before us stand allowed for statistical purposes.

Summary

Issues Involved:
1. Transfer Pricing Adjustment (TP Adjustment)
2. Determination of Arm's Length Price (ALP)
3. Rejection of Resale Price Method (RPM)
4. Application of Transactional Net Margin Method (TNMM)
5. Adjustments for Extraneous Material Differences
6. Comparable Uncontrolled Price Method (CUP)
7. Rejection of Comparable Company (Usha (India) Ltd.)
8. Adjustments under TNMM

Issue-wise Detailed Analysis:

1. Transfer Pricing Adjustment (TP Adjustment):
The assessee challenged the transfer pricing adjustment of Rs.5,92,30,475 made by the Assessing Officer (AO). The AO referred the issue to the Transfer Pricing Officer (TPO), who determined the ALP of international transactions and suggested the adjustment. The AO followed the TPO's report without independently considering the objections raised by the assessee.

2. Determination of Arm's Length Price (ALP):
The assessee argued that the ALP determined by the AO was illegal and contrary to the provisions of the Act. The CIT(A) upheld the AO's order, noting that the TPO's determination of ALP was based on a transfer pricing study prepared by the assessee. The CIT(A) emphasized that the ALP determination involved a bench marking analysis using comparable uncontrolled cases.

3. Rejection of Resale Price Method (RPM):
The assessee had chosen RPM as the most appropriate method for determining the ALP. However, the TPO rejected RPM and applied TNMM. The CIT(A) agreed with the TPO's decision, stating that RPM was not suitable due to the lack of comparability at the gross margin level and the absence of crucial information in the transfer pricing report.

4. Application of Transactional Net Margin Method (TNMM):
The TPO applied TNMM, which was upheld by the CIT(A). The CIT(A) noted that TNMM was more tolerant to functional and product differences and provided a practical solution for determining transfer prices. The CIT(A) observed that TNMM was appropriate due to the differences in risk profiles and functions performed by the assessee and the comparables.

5. Adjustments for Extraneous Material Differences:
The assessee contended that adjustments for provisions for doubtful debts, inventory obsolescence, and foreign exchange fluctuation were not warranted. The CIT(A) disagreed, stating that the TPO had considered these factors in determining the ALP. The CIT(A) noted that the assessee had not managed its inventory efficiently, leading to provisions for obsolescence.

6. Comparable Uncontrolled Price Method (CUP):
The assessee argued that the prices at which smart cards were supplied by the vendor to Axalto were much lower than the prices charged by it from uncontrolled comparable companies. The CIT(A) rejected this argument, stating that reliable adjustments could not be made in the absence of information on contractual terms relating to comparable uncontrolled transactions.

7. Rejection of Comparable Company (Usha (India) Ltd.):
The CIT(A) upheld the rejection of Usha (India) Ltd. as a comparable company, noting that it was not operating under normal business conditions and appeared to be on the verge of major restructuring. The assessee argued that it was also operating under similar conditions, but this was not accepted by the CIT(A).

8. Adjustments under TNMM:
The CIT(A) agreed with the TPO's adjustments under TNMM, stating that the assessee had not provided sufficient evidence to rebut the TPO's findings. The CIT(A) emphasized that TNMM was the most appropriate method under the given circumstances.

Conclusion:
The Tribunal found that the AO did not provide adequate opportunity to the assessee to present its case and substantiate its claims. The Tribunal set aside the orders of the tax authorities and restored the matter to the AO for a fresh decision, in compliance with the guidelines issued in the decisions of UCB India (P) Ltd. vs. Asstt. CIT and Mentor Graphics (Noida) (P) Ltd. vs. Dy. CIT. The appeal filed by the assessee was allowed for statistical purposes.