2011 (7) TMI 964 - AT - Income Tax

Arm s length price - International transaction - TPO suggested upward revision by an amount of Rs. 18,22,82,026/-- assessee contested against non consideration of capacity utilization data provided by him - Held that The turn over of the assessee has declined significantly in respect of the product named Avaunt which had happened because of utilization of BT cotton seeds by the farmers, which require very few sprays for controlling boll-worms. It is a matter of fact that fixed costs remain the same even when there is under utilization of capacity. Therefore, the case of the assessee and the comparable cases have to be examined in respect of capacity utilization so as to make the controlled and uncontrolled transactions comparable - restore this matter to the file of the AO to consider the matter afresh and work the adjustment to be made in this respect by way of a speaking order to be passed after hearing the assessee. Grant of 5% deduction from the main PLI of the comparable cases can be decided by the Assessing Officer after deciding the aforesaid issue and also the interest chargeable u/ss 234B, and 234C as per the tax payable computed after making the assessment.

Issues Involved:
1. Determination of arm's length price (ALP) of international transactions.
2. Adjustment for capacity under-utilization.
3. Application of 5% variation under Section 92C(2).
4. Levy of interest under Sections 234B and 234C.

Issue-wise Detailed Analysis:

1. Determination of Arm's Length Price (ALP) of International Transactions:
The assessee-company filed its return declaring a total income of Rs. 12,47,44,908/-. During the assessment, the Transfer Pricing Officer (TPO) suggested an upward revision of Rs. 18,22,82,026/-, which was accepted by the Assessing Officer (AO), resulting in a total income of Rs. 30,70,26,936/-. The assessee challenged this before the Dispute Resolution Panel (DRP), which upheld the draft order. The TPO accepted the Transaction Net Margin Method (TNMM) and the profit level indicator (PLI) of OP/OR used by the assessee but utilized only the current year's data. The TPO rejected the assessee's request for adjustment due to idle capacity, citing insufficient information on capacity utilization and lack of details on production quantity and value.

2. Adjustment for Capacity Under-utilization:
The assessee argued for an adjustment due to under-utilization of capacity, particularly in the "Avaunt" product segment, where capacity utilization was only 40.22% compared to 57.08% in comparable cases. The DRP and TPO rejected this adjustment, stating that the data provided by the assessee was not reliable or reasonably accurate. The assessee contended that fixed costs remain constant regardless of capacity utilization, necessitating an adjustment to make controlled and uncontrolled transactions comparable. The Tribunal noted that the lower authorities did not attempt to work out the adjustment and decided to restore the matter to the AO to reconsider and work out the adjustment afresh.

3. Application of 5% Variation under Section 92C(2):
The assessee argued that the DRP erred in not allowing a 5% downward variation while determining the ALP. The Tribunal directed the AO to decide on this issue after addressing the adjustment for capacity under-utilization.

4. Levy of Interest under Sections 234B and 234C:
The assessee challenged the levy of interest under Sections 234B and 234C. The Tribunal directed that the interest should be recalculated based on the tax payable after reassessment.

Conclusion:
The Tribunal partially allowed the appeal, directing the AO to reconsider the adjustment for capacity under-utilization and decide on the 5% variation under Section 92C(2). The interest under Sections 234B and 234C should be recalculated based on the reassessed tax payable.

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