2011 (12) TMI 225 - AT - Income Tax

Transfer Pricing adjustment in ALP by TPO non-vessel owning international clearing and forwarding company assessee contention that cases of Blue Dart Express Ltd., Gati Ltd. & Allcargo Global Logistics Ltd. are not comparables to assessee - rejection of comparables taken by the assessee without justification Revenue have not followed the order of the CIT (Appeals) for A.Y. 2005-06 decided in favor of the Assessee, allowing 100% deduction for trademarks fee - Held that - Assessee is engaged as non-vessel owning international clearing and forwarding company, whereas Blue Dart Express Ltd., Gati Ltd. & Allcargo Global Logistics Ltd., are basically courier and integrated operation companies, carrying out their operations with owned airplanes, trucks and other transport assets. Besides, the size of these companies in terms of operating fixed assets as well as the capital investments are remarkably incomparable to assessee s business model. Thus, these differences make aforesaid companies incomparable to assessee. Comparables provided by the assessee are fairly comparable with assessee s business model in terms of services, size of the company, FAR analysis, OP/OC receipt to companies. Assessee s operating profit of 5.14% is equal or more than these three companies, therefore, assessee has demonstrated a fair ALP adopted in its T.P. Report. TPO erred in not allowing the adjustment in respect of technical know how fee, whereas in earlier years similar adjustment was allowed. Principle of consistency should be followed. Besides, the adjustment on account of depreciation also is uncalled for. Further, second proviso to sec. 92C(2) clearly provides that if the assessee s TP adjustments fall within ( ) (-) 5%, in that case no addition or further adjustment are called for. Therefore, assessee transfer pricing is upheld and adjustments as retained by DRP are deleted. - Decided in favor of Assessee.

Issues Involved:
1. Validity of the assessment order.
2. Transfer Pricing adjustments.
3. Deduction for trademarks fee.
4. Rejection of comparables.
5. Applicability of sec. 92(c) w.e.f. 1st Oct. 2009.
6. Charging of interest u/s 234B.
7. Initiation of penalty proceeding u/s 271(1)(c).

Detailed Analysis:

1. Validity of the assessment order:
The assessee contested that the assessment order passed by the ACIT was against the law and facts of the case. However, the primary focus of the appeal was on the transfer pricing adjustments and related issues.

2. Transfer Pricing adjustments:
The core issue was the addition of Rs. 9,48,01,463/- based on the Transfer Pricing Officer's (TPO) observations and the Dispute Resolution Panel's (DRP) directions. The assessee argued that the TPO and DRP incorrectly compared its financials with companies like Blue Dart Express Limited, which are not comparable due to differences in business models and related party transactions.

Comparability Analysis:
- The assessee operates as a Non-vessel owning international C/F company, providing freight forwarding services without owning significant transport assets.
- The TPO's comparables, Blue Dart Express Limited, Gati Ltd., and Allcargo Global Logistics Limited, own significant transport assets and have different business models.
- The TPO used OP/OC as the Profit Level Indicator (PLI) for comparables but used PBT/Sales for the assessee, leading to incorrect comparisons.
- The assessee's PLI should also be OP/OC to ensure consistency.

Related Party Transactions:
- Blue Dart Express Limited had related party transactions of 45.23%, making it an unsuitable comparable as per various ITAT judgments, including Sony India (P.) Ltd. and Philips Software Centre Pvt. Ltd.

Functional, Asset, and Risk (FAR) Analysis:
- The TPO failed to conduct a proper FAR analysis, which is essential for selecting comparables.
- The assessee's business model, which does not involve owning transport assets, is fundamentally different from the TPO's comparables.

Alternative Comparables:
- The assessee proposed comparables like Patel Integrated Logistics Ltd., DRS Logistics Pvt. Ltd., and ABC India Ltd., which are more aligned with its business model.
- The OP/OC margins of these companies were comparable to the assessee's margin, demonstrating that the assessee's international transactions were at arm's length.

Depreciation and Technical Knowhow Fee Adjustments:
- The TPO and DRP erred in not allowing adjustments for depreciation and technical knowhow fees, which were allowed in previous years.
- The assessee provided detailed workings and relied on ITAT judgments to support these adjustments.

Rule of Consistency:
- The department had accepted the assessee's transfer pricing methodology in previous and subsequent years, and there was no justification for a different approach in the assessment year under appeal.

3. Deduction for trademarks fee:
The TPO and DRP did not allow 100% deduction for trademarks fee, contrary to the CIT(A)'s decision for the previous assessment year. The assessee argued that the same rate of depreciation should be allowed consistently.

4. Rejection of comparables:
The DRP failed to consider the assessee's comparables without pointing out deficiencies. The assessee highlighted the inconsistencies and errors in the TPO's comparables and proposed more suitable alternatives.

5. Applicability of sec. 92(c) w.e.f. 1st Oct. 2009:
The assessee contended that it was entitled to the benefit of +5% for AY 2006-07 while comparing profitability, as per the second proviso to Section 92C(2).

6. Charging of interest u/s 234B:
The assessee argued that the interest charged under Section 234B was erroneous, but this issue was not the primary focus of the appeal.

7. Initiation of penalty proceeding u/s 271(1)(c):
The assessee contended that the initiation of penalty proceedings under Section 271(1)(c) was unjustified, but this ground was not pressed during the appeal.

Conclusion:
The ITAT upheld the assessee's transfer pricing report, deleted the adjustments made by the DRP, and allowed the appeal. The ITAT emphasized the importance of consistency, proper comparability analysis, and adjustments for depreciation and technical knowhow fees. The assessee's approach was found to be justified and in line with the arm's length principle.

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