2012 (4) TMI 120 - AT - Income Tax

Addition u/s 92CA(4) of Rs.1, 93, 48, 372 - A reference u/s. 92CA(1) of the I.T. Act for the Assessment Year 2004-05 was made to the TPO for computation of Arm s Length Price (ALP) in relation to the international transactions carried out by the assessee - TPO noted that the assessee has used TNMM method and its OP/TC comes to 1.8%. By taking comparable margins as per Annexure-I the TPO noted that the OP/TC ratio comes to 20.42% for the sample set - TPO vide notice dated 24.11.2006 asked the assessee to show cause as to why the mark-up earned by the assessee at 10% upon cost be not considered as under pricing of the services to the parent company as the industry is earning a mark-up of over 30% - It is only after this incomplete list showing lesser profit than the profit declared by the assessee was brought to the notice of the TPO that he excluded the 47 loss making companies to determine the mean average profit at 20.42% - the submission of the Ld. Counsel for the assessee that there is no basis for only excluding the loss making companies and not excluding the high profit making companies or companies which are not at all comparable considering their size volume of turnover and other factors. In our opinion the whole exercise of selecting the comparables by the TPO is not proper and is in a haphazard manner - Decided in favor of the assessee Regarding addition of Rs.1, 13, 84, 034/- made by the AO on account of income received from the holding company treated as advance by the assessee deleted by CIT(A) - Held that during the course of assessment proceedings the assessee has given a statement that it has received advance towards market research analysis services rendered during the year - Appeal is partly allowed by way of remand to AO

1. ISSUES PRESENTED and CONSIDERED

The core legal issues considered in this judgment are:

Whether the Ld. CIT(A) erred in deleting the adjustment made by the Transfer Pricing Officer (TPO) regarding the Arm's Length Price (ALP) for international transactions.
Whether the Ld. CIT(A) erred in deleting the addition made by the Assessing Officer (AO) concerning the income received from the holding company, which was treated as an advance by the assessee.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Adjustment of Arm's Length Price (ALP)

Relevant legal framework and precedents: The case involves the application of Section 92CA of the Income Tax Act, which deals with transfer pricing and the determination of ALP for international transactions.
Court's interpretation and reasoning: The court noted that the TPO selected inappropriate comparables, including companies engaged in high-end software development, whereas the assessee was involved in low-end back-office support services. The TPO's process was deemed flawed due to the inclusion of companies with significantly higher profit margins and turnover.
Key evidence and findings: The TPO used a sample of 149 companies to determine a mean profit margin, excluding loss-making companies but not high-profit companies. The Ld. CIT(A) found this approach inconsistent and not reflective of the assessee's business operations.
Application of law to facts: The court applied FAR (Functions, Assets, and Risks) analysis to determine the appropriateness of comparables. The TPO's selection was found to lack proper evaluation, leading to an erroneous ALP determination.
Treatment of competing arguments: The Revenue argued that the Ld. CIT(A) did not apply his mind and merely accepted the assessee's submissions. However, the court found merit in the Ld. CIT(A)'s detailed evaluation and rejection of the TPO's comparables.
Conclusions: The court upheld the Ld. CIT(A)'s decision to delete the adjustment of Rs.1,93,48,372/- as the TPO's process was flawed and violated principles of natural justice.

Issue 2: Treatment of Income as Advance

Relevant legal framework and precedents: The issue involves the treatment of income under the mercantile system of accounting, as per the Companies Act and accounting standards issued by ICAI.
Court's interpretation and reasoning: The Ld. CIT(A) found no sustainable ground to treat the advance from the holding company as income for the year, given the consistent accounting method followed by the assessee.
Key evidence and findings: The AO treated the amount received from the holding company as income, based on the assessee's statement that it was for services rendered during the year. However, the balance sheet indicated it was an advance against capital expenditure.
Application of law to facts: The court noted the contradiction between the balance sheet and the assessee's statements during assessment, necessitating further verification.
Treatment of competing arguments: The Revenue contended that the Ld. CIT(A) failed to apply his mind, given the contradictory statements. The court agreed that the matter required further examination.
Conclusions: The court remanded the issue for verification by the AO, directing a reevaluation of the nature and purpose of the advance received.

3. SIGNIFICANT HOLDINGS

Preserve verbatim quotes of crucial legal reasoning: "The whole exercise of selecting comparables by the TPO was haphazard illogical and random without any FAR."
Core principles established: Proper FAR analysis is essential in transfer pricing cases to ensure comparables accurately reflect the tested party's business operations. The selection of comparables must be consistent and justified.
Final determinations on each issue: The court upheld the Ld. CIT(A)'s decision to delete the transfer pricing adjustment, finding the TPO's approach flawed. The issue regarding the treatment of income as an advance was remanded for further verification by the AO.

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