2012 (12) TMI 22 - AT - Income Tax

Plea for rectification u/s 254 in order passed by Tribunal - main contention raised by Revenue was that the Distribution Agreement entered into between the two related parties was liable to question on ground that agreement did not contain any formula for sharing the profits between the two related parties and hence it allowed the parties to plan their affairs so as to ensure high margins to the UAE entity - Held that - It is found that this aspect was decided by the Tribunal and it is noted by the Tribunal that the assessee company has executed proper distribution agreement with Vega UAE based on the ground that Vega UAE is carrying both the inventory risk as well as credit risk. This finding is given by the Tribunal after examining the facts of the present case. Also, clear finding given by the Tribunal that assessee company has entered into a valid and proper distribution agreement with Vega UAE and had been adhered to also. Hence, it is not proper to say that this issue was not discussed and decided. Hence, Revenue in M.A. has not established any apparent mistake in the Tribunal s order and therefore, no rectification in this Tribunal s order is called for u/s 254(2)

Summary

Issues:
1. Alleged mistakes in the impugned Tribunal order dated 19.01.2012.

Analysis:
The Revenue filed a Miscellaneous Application (M.A.) contending that mistakes existed in the Tribunal order. The Revenue highlighted various issues in the M.A., including the characterization of entities in the transaction, lack of warehousing facility, credit risk, and shipping of goods directly to customers. The Revenue argued that the Distribution Agreement lacked a profit-sharing formula, allowing high margins for the UAE entity. The Tribunal had observed that Vega UAE was a distributor, not a marketing service provider, based on the proper distributor agreement and the assumption of inventory and credit risk by Vega UAE. The Revenue criticized this observation as cryptic, baseless, and contrary to the Act and OECD guidelines.

The Revenue also argued that the Tribunal failed to address several objections, such as the absence of a transfer of goods formula in the agreement, the dispatch of goods to all export customers, and the rationale behind selecting AIA as the tested party. The Revenue contended that the Tribunal incorrectly presumed the profit level indicator for distributors without considering Vega UAE's functions and expenses. The Tribunal's decision to reject the TP adjustments proposed by the AO and confirmed by the DRP was questioned by the Revenue, which suggested restoring the matter to the TPO for better comparables or locating suitable comparables.

During the hearing, the Revenue reiterated its contentions from the M.A., while the assessee argued against any apparent mistake in the Tribunal's order that warranted rectification under Section 254(2) of the IT Act. The Tribunal upheld its original decision, emphasizing that Vega UAE was indeed a distributor based on the valid distribution agreement and assumption of inventory and credit risk. The Tribunal found no merit in the Revenue's arguments and dismissed the M.A., concluding that no rectification was necessary under Section 254(2) of the IT Act.

In summary, the Tribunal's order was upheld, affirming Vega UAE's status as a distributor and rejecting the Revenue's claims of mistakes in the characterization and analysis of the transaction. The Tribunal found no grounds for rectification, dismissing the Revenue's M.A.