2011 (8) TMI 737 - AT - Income Tax

Transfer Pricing - Determination of Arm-Length - Time gap between the original contract of sale and entry of the goods at Port - TPO adopted the average of the Customs tariff rate at Port on the date of entry -TPO had no material on record to show that price was un-comparable - Held That - Sale contract entered into between the assessee and its AE is very much comparable to the market rate prevailed on that day as compared to the illogical comparison made by the TPO. The price fixed by the parties on the basis of sale contract is more authentic and acceptable. The difference between the assessee s invoice rate and the average Customs rate at Kandla Port is nominal. The difference goes beyond the permissible 5% range only when the TPO has adopted the average of the tariff prices at Kandla Port. In these types of bulk purchases and sales it is always better to compare the price of individual consignment rather than on a compromise of average price.

Summary

Issues: Transfer pricing adjustment based on Arm's Length Price (ALP) determination using the Comparison of Uncontrolled Price (CUP) method.

Analysis:
1. The appellant, an associate of a multinational group, engaged in importing edible oils from its associate concern for high seas sale and local markets, reported international transactions worth US$ 2,35,30,749.06 for the assessment year. The ALP was computed using the CUP method, which was accepted by the Transfer Pricing Officer (TPO).

2. The TPO, after considering various factors like functional, asset utilization, and risk analysis, concluded that the appellant did not have significant market risk. The TPO compared the price paid by the appellant with the Customs tariff rate at Kandla Port and made additional adjustments based on this comparison.

3. The appellant argued that the price paid was based on sale contracts determined by prevailing market conditions, and there could be rate fluctuations due to the time gap between the contract and the goods' entry into the port. The TPO's method of comparing with the Customs tariff rate at a subsequent date was deemed improper.

4. The Tribunal observed that the price agreed upon in the sale contract between the appellant and its associate enterprise was comparable to the market rate prevailing on that day. The difference between the appellant's invoice rate and the Customs rate at Kandla Port was nominal, and the TPO's method of averaging tariff prices was not appropriate for bulk purchases and sales.

5. Ultimately, the Tribunal found no valid reason to disturb the price disclosed by the appellant as the ALP for the imports. Therefore, the additional adjustment made by the TPO was deemed unsustainable both factually and legally, leading to the deletion of the adjustment. Consequently, the appeal filed by the appellant was allowed.

This detailed analysis highlights the issues surrounding the transfer pricing adjustment, the arguments presented by the parties, the TPO's methodology, and the Tribunal's reasoning for overturning the adjustment.