2012 (10) TMI 285 - AT - Income Tax

Transfer pricing adjustment - whether the provisions of sec 92A are applicable to the transactions of the assessee in their service activity ? - M/s Sanchez Computer Associates Inc., USA holds 20% shares in the assessee company & remaining 80% is held by Peninsula Capital Services Private Limited India - Held that - Assessee has been filing form No.3CEB as an abundant precaution admitting the other two enterprises as associated enterprises. However, just because assessee has been filing Form No.3CEB it cannot be stated that these two are associated enterprises unless provisions of section 92A are satisfied - As far as the conditions in 92A(2) are concerned, assessee has given detailed explanation how these provisions are not applicable so as to hold the two companies as associated enterprises. However, it is not clear on record whether there is any relationship as prescribed u/s 92A(1)(a)(b) which specify that an associated enterprise in relation to another enterprise. Since inquiries are pending before the TPO to examine whether there is any direct or indirect participation of Sanchez in Zenta Private Limited, Mumbai holding 1005 shares of Peninsula Capital Services Pvt. Ltd India, or otherwise and share holding pattern of 80% share holder also has any direct or indirect control in Sanchez, we do not propose to give any finding at this juncture whether there is any relationship of associated enterprise between the parties involved herein. Therefore without adjudicating on this issue the order of the DRP as well as TPO is set aside and restore back to TPO to decide afresh whether there is any associated enterprise relationship between the parties and whether provisions of section 92A are applicable - in favour of assessee for statistical purposes.

Summary

Issues Involved:
1. Applicability of Section 92A to the transactions of the assessee in their service activity.
2. Whether adjustment can be made under Transfer Pricing provisions.
3. Appropriate method to be used for arriving at such adjustment.

Issue-wise Detailed Analysis:

1. Applicability of Section 92A to the transactions of the assessee in their service activity:
The assessee, M/s. Sanchez Capital Services Private Limited, is in the business of providing services. M/s Fidelity International Services, a 100% subsidiary of M/s Sanchez Computer Associates Inc., USA, holds 20% shares in the assessee company, while the remaining 80% is held by Peninsula Capital Services Private Limited India. The Transfer Pricing Officer (TPO) argued that the entire services were to the group entity/entities, thereby making the provisions of transfer pricing applicable. The assessee contended that even though Form No.3CEB was submitted as a precaution, FIS and FOS are not associated enterprises under Section 92A of the I.T. Act. The AO rejected this objection, stating that the entire services were sold to the group entity/entities. The Dispute Resolution Panel (DRP) upheld the TPO's view, noting that the assessee had consistently filed Form No.3CEB, declaring FIS and FOS as associated enterprises in previous years without challenge. The DRP also pointed out that the shareholding structure and relationships between Zenta and Fidelity groups were not fully explained by the assessee.

2. Whether adjustment can be made under Transfer Pricing provisions:
The assessee argued that there was no associated party relationship with FIS and FOS, as FIS indirectly held only 20% in the assessee company and none of the other conditions prescribed in Section 92A(2) were fulfilled. The DRP, however, rejected these contentions, stating that the assessee had consistently shown transactions with FIS and FOS as being at arm's length in previous years. The learned Departmental Representative emphasized that Section 92A(1) does not prescribe a minimum threshold for shareholding, and even 1% shareholding could lead to the creation of an associated enterprise relationship. The DRP noted that the assessee had been filing Form No.3CEB as an abundant precaution, admitting the other two enterprises as associated enterprises.

3. Appropriate method to be used for arriving at such adjustment:
The DRP observed that the assessee had consistently analyzed transactions with FIS and FOS and selected the most appropriate method to establish that these transactions were at arm's length. The DRP did not provide a specific finding on the associated relationship due to incomplete details of the shareholding structure. The matter was pending before the TPO for further examination of whether there was any direct or indirect participation of Sanchez in Zenta or otherwise. The Tribunal decided to set aside the order of the DRP and TPO and restore the matter to the TPO for fresh examination of the associated enterprise relationship and applicability of Section 92A. Only after this examination could the issue on merits and any required adjustments be decided.

Conclusion:
The Tribunal set aside the orders of the DRP and TPO on the issue of associated enterprise relationship and restored the matter to the TPO for fresh examination. The decision taken in assessment year 2008-09, if any, could be made applicable to the present year if the facts were similar. The appeal filed by the assessee was allowed for statistical purposes.