2012 (5) TMI 153 - AT - Income Tax

Transfer pricing - adjustments - selection of comparable - opportunity of being heard - held that - In the present case, the AO adopted M/s. Infosys Technologies Ltd., KALS Information System Ltd., Accel Transmatics Ltd. and Tata Elxsi Ltd. as comparables on the basis of data which was obtained by him in response of the notices issued u/s. 133(6) of the Act, however no opportunity of being heard was provided to the assessee for rebuttal, therefore the Assessing Officer was not justified in considering those comparables while working out the ALP in assessee s case. - Matter remanded back for grant of an opportunity of being heard. Benefit of /- 5% range mentioned in the proviso to section 92C(2) - whether amendment is prospective or retrospective in nature - held that - The assessee s view was that the arithmetical mean should be adjusted by 5% to arrive at ALP, whereas the departmental view was that no such adjustment is required to be made if the variation between the transfer price and the arithmetical mean is more than 5% of the arithmetical mean. With a view to resolving this controversy, the Legislature sought to amend the proviso to section 92C(2) - Proviso is not a procedural piece of legislation and therefore, unless it is so clearly intended, the newly amended proviso cannot be understood to be retrospective in nature. In fact, it is a well-settled proposition that the statutory provisions as they stand on the first day of April of the assessment year must apply to the assessment of the year and the modification of the provisions during the pendency of assessment would not generally prejudice the rights of the assessee. - the proviso inserted by the Finance (No 2) Act, 2009 would not apply to an assessment year prior to its insertion. - no justification to deny the benefit of /-5% to the assessee in terms of the erstwhile Proviso for the purposes of computing the ALP. - Decided in favor of assessee.

Issues Involved:
1. Principles of natural justice disregarded.
2. Reference to Transfer Pricing Officer (TPO) for determining arm's length price.
3. Lack of demonstration of tax evasion motive.
4. Constitution of the Dispute Resolution Panel (DRP).
5. Addition under Chapter X.
6. Flawed process of issuing notices u/s 133(6) and lack of opportunity to cross-examine.
7. Rejection of multiple year data, comparables, and transfer pricing analysis.
8. Law does not compel adopting multiple comparables.
9. Fresh transfer pricing analysis and adoption of current year data.
10. Consideration of unavailable data at the time of TP documentation.
11. Selection of inappropriate comparables and rejection of appropriate ones.
12. Incorrect computation of operating margins.
13. Lack of proper adjustment for differences between appellant and comparables.
14. Non-allowance of the +/-5% range benefit.
15. Exclusion of internet charges from export turnover for deduction u/s 10A.
16. Deduction u/s 10A and its computation.
17. Levying of interest u/s 234B and 234D.

Detailed Analysis:

1. Principles of Natural Justice Disregarded:
- The Tribunal observed that the TPO included additional comparables without providing an opportunity of being heard to the assessee, violating the principle of audi alteram partem (no one should be condemned unheard).

2. Reference to TPO for Determining Arm's Length Price:
- The TPO determined the ALP and made an adjustment of Rs. 1,19,16,091 to the income of the assessee. The DRP directed to modify the assessment order after reworking the correct margin.

3. Lack of Demonstration of Tax Evasion Motive:
- The Tribunal did not specifically address this issue, implying it was not a significant point of contention in the appeal.

4. Constitution of the Dispute Resolution Panel (DRP):
- The Tribunal did not find the constitution of the DRP to be bad in law and did not address this issue in detail.

5. Addition under Chapter X:
- The Tribunal did not specifically address the legality of additions under Chapter X, focusing instead on the procedural aspects of the TPO's analysis.

6. Flawed Process of Issuing Notices u/s 133(6) and Lack of Opportunity to Cross-Examine:
- The Tribunal noted that the TPO used data obtained through notices u/s 133(6) without providing the assessee an opportunity to cross-examine, which was deemed inappropriate.

7. Rejection of Multiple Year Data, Comparables, and Transfer Pricing Analysis:
- The Tribunal found that the TPO's rejection of the assessee's comparables and adoption of new ones without proper justification was flawed.

8. Law Does Not Compel Adopting Multiple Comparables:
- The Tribunal agreed with the assessee that the law does not mandate the use of multiple comparables and that a single comparable could suffice if justified.

9. Fresh Transfer Pricing Analysis and Adoption of Current Year Data:
- The Tribunal criticized the TPO for using data not available to the assessee at the time of documentation, which was against the principles of fairness.

10. Consideration of Unavailable Data at the Time of TP Documentation:
- The Tribunal held that the TPO should not have used data obtained after the specified date for comparability analysis.

11. Selection of Inappropriate Comparables and Rejection of Appropriate Ones:
- The Tribunal found that the TPO included companies like Infosys, which were significantly dissimilar in size, without proper justification.

12. Incorrect Computation of Operating Margins:
- The Tribunal noted that the TPO's computation of operating margins was flawed due to the inclusion of inappropriate comparables.

13. Lack of Proper Adjustment for Differences Between Appellant and Comparables:
- The Tribunal directed the AO/TPO to make proper adjustments for differences between the assessee and the comparables.

14. Non-Allowance of the +/-5% Range Benefit:
- The Tribunal directed the AO to allow the benefit of the +/-5% range as per the erstwhile proviso to section 92C(2) of the Act, following the precedent set by other cases.

15. Exclusion of Internet Charges from Export Turnover for Deduction u/s 10A:
- The Tribunal directed the AO to exclude the internet charges from both the export turnover and total turnover while computing the deduction u/s 10A, following the decision in Tata Elxsi Ltd.

16. Deduction u/s 10A and Its Computation:
- The Tribunal held that the income of the 10A unit should be excluded at source before arriving at the gross total income, as per the jurisdictional High Court's decision in Yokogawa India Ltd.

17. Levying of Interest u/s 234B and 234D:
- The Tribunal noted that the charging of interest u/s 234B and 234D is consequential in nature and should be computed accordingly.

Conclusion:
- The appeal was partly allowed for statistical purposes, with several issues set aside for fresh adjudication by the AO, ensuring compliance with principles of natural justice and proper consideration of relevant data and comparables.

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