2013 (7) TMI 699 - HC - Income Tax

Determination of Arm s length price - Tribunal held Comparable used by TPO were not functionally comparable in respect of the services rendered by the respondent/assessee - Held that - assessee has not conducted a proper T.P.study and has wrongly chosen comparables - CIT(A) has the power to accept fresh claim of the assessee. Marketing support services cannot be compared with turn key Engineering services - services rendered by the respondent / assessee to its associated enterprise are in the nature of marketing services which are entirely different to the set of services in the nature of engineering services rendered by the so called four comparables. Consequently the adjustment arrived at by the Transfer Pricing Officer and the addition made by the Assessing Officer cannot be sustained on the basis of the Transfer Pricing Study with regard to the four companies which were clearly functionally not comparable - Decided against Revenue.

Summary

Issues:
- Appeal by the revenue regarding adjustment made by Transfer Pricing Officer and consequent additions in assessment orders for assessment years 2004-05 and 2005-06.
- Questions raised before Commissioner of Income Tax (Appeals) regarding reference to Transfer Pricing Officer, acceptance of recommendations, consideration of current year data, and comparables selected.
- Tribunal's examination of comparables selected by Transfer Pricing Officer and their functional comparability to services rendered by the respondent/assessee.
- Tribunal's conclusion on the functional comparability issue and subsequent dismissal of cross objections.

Analysis:
1. The appeals by the revenue concerned the adjustment made by the Transfer Pricing Officer and the consequent additions in assessment orders for the years 2004-05 and 2005-06. The respondent/assessee had a service agreement with an associated enterprise in Singapore, leading to a reference to the Transfer Pricing Officer by the Assessing Officer to determine the arms length price. The Transfer Pricing Officer compared services with four companies, resulting in adjustments and additions by the Assessing Officer for both years.

2. Before the Commissioner of Income Tax (Appeals), questions were raised regarding the reference to the Transfer Pricing Officer, acceptance of recommendations, consideration of current year data, and comparables selected. While questions (1) to (3) were decided against the respondent/assessee, question (4) was ruled in their favor, leading to appeals by both parties before the Tribunal.

3. The Tribunal examined the functional comparability of the selected comparables with the services provided by the respondent/assessee. It was found that the services were different in nature, with the respondent providing marketing services while the comparables offered engineering services. The Tribunal concluded that the selected comparables were not functionally comparable, leading to the dismissal of cross objections by the respondent/assessee.

4. The Tribunal's decision was based on the clear distinction between marketing services provided by the respondent and engineering services provided by the comparables. As a result, the adjustments and additions made by the Transfer Pricing Officer and Assessing Officer were deemed unsustainable due to the lack of functional comparability, leading to the dismissal of the appeals.

5. In light of the Tribunal's findings, the appeals were dismissed as no question of law arose for consideration. The conclusion was based on the functional differences between the services provided, indicating that the adjustments were not valid.