2013 (10) TMI 766 - AT - Income Tax

International transaction - Double addition of the same amount - Allowance of any expenditure arising from an international transaction shall also be determined having regard to the ALP Held that - In the instant case the assessee has not claimed the expenditure of Rs. 7,42,20,575/- during the impugned assessment year and has itself disallowed the same while computing its taxable income Therefore, the provision of section 92 is not applicable - There cannot be double disallowance/addition of the same amount - Although the transaction between the assessee and its AE falls within the meaning of an international transaction still no adjustment on account of ALP can be made since the assessee has suo-moto added the amount while computing its taxable income for the impugned assessment year and no benefit of the same has been taken either by capitalising it and claiming depreciation on it or taken benefit in subsequent years Decided in favor of Assessee. No proper appreciation of facts presented by assessee, by the Assessing officer - Assessee company has undertaken international transaction valued at Rs. 36,98,134/- with Eaton Corporation on account of business support services Held that - Assessee vide letter dated 03-09-2010 addressed to the TPO has categorically requested for adjustment for differential risk. He has also cited certain decisions In the said letter itself, the assessee has computed such risk adjustment - However, TPO in his order has observed that no such adjustments have been made by the assessee nor claimed during any time of the assessment proceedings - Restored the issue to the file of the Assessing Officer with a direction to decide the issue afresh and in accordance with law Decided in favor of assessee for statistical purpose.

Summary

Issues Involved:
1. Double addition of disallowed expenses.
2. Determination of arm's length price for reimbursement of expenses.
3. Transfer pricing adjustment for business support services.
4. Risk profile adjustments in transfer pricing analysis.
5. Use of data not available to the appellant for transfer pricing adjustment.

Issue-wise Detailed Analysis:

1. Double Addition of Disallowed Expenses:
The assessee argued that the Assessing Officer (AO) and the Dispute Resolution Panel (DRP) made a double addition by disallowing expenses related to the reimbursement of expenses to associated enterprises (AE), Eaton UK, amounting to Rs. 7,42,20,575. The assessee had already voluntarily disallowed these expenses in its return of income for AY 2007-08. The Tribunal noted that the assessee had disallowed the expenditure in its computation statement and had not claimed any deduction under section 10A on account of this disallowance. The Tribunal agreed with the assessee that the provisions of section 92 were not applicable since the expenditure was not claimed, thus no adjustment on account of Arm's Length Price (ALP) could be made. The Tribunal set aside the AO's order on this issue and allowed the grounds raised by the assessee.

2. Determination of Arm's Length Price for Reimbursement of Expenses:
The Transfer Pricing Officer (TPO) noted that the benchmarking for the transaction related to the reimbursement of expenses to Eaton UK was not proper. The expenses were pre-operative, and the assessee could not show corresponding services received against such payments. The TPO determined the arm's length price of the transaction as Nil, increasing the income of the assessee by Rs. 7,42,20,575. The Tribunal found that the assessee had not claimed the expenditure and had disallowed the same in its computation statement. Since no benefit was taken by the assessee, the Tribunal held that no adjustment on account of ALP could be made. The Tribunal set aside the AO's order on this issue.

3. Transfer Pricing Adjustment for Business Support Services:
The TPO noted that the assessee had undertaken an international transaction valued at Rs. 36,98,134 with Eaton Corporation for business support services. The assessee used the Transactional Net Margin Method (TNMM) for benchmarking, with a profit level indicator (PLI) of 8%. The TPO found that the mean PLI of comparable companies was 27.04%, leading to an adjustment of Rs. 6,51,967. The Tribunal noted that the assessee had requested for risk adjustment, which was not properly appreciated by the TPO. The Tribunal restored the issue to the AO for fresh consideration, directing the AO to decide the issue afresh after giving due opportunity to the assessee.

4. Risk Profile Adjustments in Transfer Pricing Analysis:
The assessee argued that the TPO did not recognize differences in the risk profile between the assessee and comparables, and did not make adjustments for such differences. The Tribunal found that the assessee had requested for risk adjustment in its submission to the TPO. The Tribunal directed the AO to reconsider the issue, taking into account the risk adjustment claimed by the assessee.

5. Use of Data Not Available to the Appellant for Transfer Pricing Adjustment:
The assessee contended that the TPO used data not available to the assessee at the time of conducting the transfer pricing analysis, unfairly penalizing the assessee. The Tribunal did not specifically address this issue separately but directed the AO to reconsider the entire transfer pricing adjustment issue afresh, ensuring that all relevant data and adjustments are properly considered.

Conclusion:
The Tribunal allowed the appeal of the assessee partly for statistical purposes, setting aside the AO's order on the double addition and ALP adjustment issues, and directing the AO to reconsider the transfer pricing adjustment for business support services and risk profile adjustments afresh. The Tribunal dismissed ground No. 8 as not pressed by the assessee.