2012 (10) TMI 804 - AT - Income Tax

Transfer Pricing additions by DRP/TPO - warranting provision & provision for sale promotion - Additions to income to arrive at the Arm s Length Price of the International transactions - Held that - Perusal of the order it nowhere suggest that DRP has considered the facts and circumstances of the case, nature of dispute and what is the defence. The order is running into few lines and does not disclose the mind applied by the Adjudicators. Thus it can safely be said that it is totally a non speaking order. It simply opinied that the Draft Assessment order proposed by the Assessing Officer is to be approved. As in ROADMASTER INDUSTRIES OF INDIA P. LTD. Versus INSPECTING ASSISTANT CIT (ASSESSMENT) AND ANOTHER 2006 (5) TMI 86 - PUNJAB AND HARYANA HIGH COURT the necessity of assigning reason in support of an order adjudicating the controversy between the parties is considered. Thus order reveals that DRP has not applied its mind. The assessee has filed objections running into more than 400 pages not a single objection has been considered by the DRP. Therefore, the order of Ld DRP is set aside and remit the issue back to the file of Ld DRP for re-adjudication - in favour of assessee by way of remand.

Issues Involved:
1. Validity of the assessment order under Section 143(3) read with Section 144C.
2. Dismissal of objections by the Dispute Resolution Panel (DRP).
3. Non-speaking order by the DRP.
4. Additions made on account of various provisions and Transfer Pricing adjustments.
5. Treatment of reimbursement received for advertisement and business promotion expenses.
6. Inclusion of local transactions in Transfer Pricing analysis.
7. Rejection of segment-wise analysis by the Transfer Pricing Officer (TPO).
8. Application of the +/- 5% adjustment rule under Section 92C of the Income Tax Act.
9. Consistency with previous adjudications and judicial principles.

Detailed Analysis:

1. Validity of the Assessment Order:
The assessee challenged the assessment order passed by the Assessing Officer (AO) under Section 143(3) read with Section 144C, arguing that it was bad in law. The contention was that the order was based on directions given by the DRP, which did not properly consider the objections raised by the assessee.

2. Dismissal of Objections by the DRP:
The assessee argued that the DRP grossly erred in dismissing various objections in a summary manner without proper application of mind. The objections filed by the assessee were extensive, running into 426 pages, but the DRP issued only a one-page order without addressing any specific arguments or documents submitted.

3. Non-Speaking Order by the DRP:
The DRP's order was criticized for being a non-speaking order, lacking detailed reasoning and failing to disclose the mind applied by the adjudicators. The ITAT noted that the DRP's order did not consider the facts, nature of the dispute, or the defense presented by the assessee. This was deemed contrary to judicial principles requiring orders to be reasoned and speaking.

4. Additions Made on Account of Various Provisions and Transfer Pricing Adjustments:
The assessee contested several additions made by the AO/TPO, including Rs. 11,77,310/- for warranting provision, Rs. 1,75,94,836/- for sales promotion provision, and Rs. 6,23,30,710/- for Transfer Pricing adjustments. The total addition of Rs. 8,11,02,856/- was argued to be illegal and based on erroneous grounds.

5. Treatment of Reimbursement Received for Advertisement and Business Promotion Expenses:
The assessee argued that the TPO erred in treating the reimbursement received for advertisement and business promotion expenses as non-operating income. The assessee contended that these reimbursements should be considered operating revenue, as they were partial compensations for costs incurred in promoting the AE's products.

6. Inclusion of Local Transactions in Transfer Pricing Analysis:
The assessee contended that the TPO wrongly included local transactions in the Transfer Pricing analysis, which should only cover international transactions with associated enterprises. The inclusion of local transactions was argued to be outside the scope of Transfer Pricing provisions.

7. Rejection of Segment-Wise Analysis by the TPO:
The TPO rejected the segment-wise analysis done by the assessee, which had been accepted in previous assessment years. The assessee argued that only the operating profit margins of segments with international transactions should be compared for arm's length price determination.

8. Application of the +/- 5% Adjustment Rule under Section 92C:
The assessee argued that the AO/TPO failed to apply the benefit of the +/- 5% adjustment rule under Section 92C, which allows for minor adjustments to the arm's length price determined by the TPO.

9. Consistency with Previous Adjudications and Judicial Principles:
The assessee highlighted that the DRP's approach was inconsistent with previous adjudications, particularly the favorable decision by the CIT(A) in AY 2004-05, which was not appealed by the revenue authorities. The lack of consistency was argued to be against judicial discipline.

Conclusion:
The ITAT found that the DRP's order was non-speaking and lacked detailed reasoning. It emphasized the necessity of assigning reasons in support of an order to ensure transparency and fairness. Consequently, the ITAT set aside the DRP's order and remitted the issue back to the DRP for fresh adjudication, considering the extensive objections and documents submitted by the assessee. The appeal was allowed for statistical purposes.

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