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2013 (11) TMI 355 - AT - Income TaxTransfer Pricing Adjustment - Reference to Transfer Pricing Officer - Power of AO - Held that - for Assessment Year 2006-07, the aggregate of international transactions was below Rs.15 Crores; - In this view of the matter, the Assessing Officer was not mandatorily required to make a reference to the TPO under section 92CA of the Act. - there is no infirmity in the action of the Assessing Officer in determining the ALP of the international transactions and making the Transfer Pricing adjustment of Rs.5,77,02,222; as it is in conformity with the jurisdiction conferred on him by the provisions of section 92C of the Act. - Decided against the assessee. Payment of cross charges of ex-pat costs and contractor charges - claimed as reimbursement to the parent company - Whether or not the expenses incurred by the parent company, Nike Inc., USA can be attributed solely and totally to the business of distribution undertaken by the assessee - Held that - (i) the nature of these expenses are such that they cannot be attributed to have been solely and exclusively for the distribution business of the assessee; - - (ii) the claim of the assessee that it had derived tangible benefit from the expenditure has not been substantiated with evidence. - (iii) there is no evidence or likelihood of any independent entity dealing in similar circumstances bearing such expenditure. - T.P. Adjustments made by the lower authorities sustained. - Decided against the assessee.
Issues Involved:
1. Transfer Pricing Adjustment for Assessment Year 2005-06. 2. Transfer Pricing Adjustment for Assessment Year 2006-07. 3. Charging of interest under section 234B of the Income Tax Act. Issue-wise Detailed Analysis: 1. Transfer Pricing Adjustment for Assessment Year 2005-06: The assessee, a subsidiary of Nike Holdings B.V., Netherlands, engaged in the import and distribution of Nike products in India, filed its return declaring a loss. The case was scrutinized due to international transactions exceeding Rs. 5 Crores, and the Transfer Pricing Officer (TPO) proposed an adjustment of Rs. 4,79,96,877, treating the Arms' Length Price (ALP) of expenses cross-charged by the parent company as NIL. The Assessing Officer (AO) incorporated this adjustment in the assessment order. The assessee challenged the adjustment, arguing that the expenses incurred by the parent company on behalf of the assessee were reimbursed at cost without any markup. The expenses included travel, accommodation, conveyance, salary payments, cost of samples, and miscellaneous expenses. The TPO, however, characterized these payments as intra-group services, concluding that the costs were for brand promotion of the parent company, not the business of the assessee. The CIT(A) upheld the TPO's decision. The Tribunal examined the Transfer Pricing Study, noting that the assessee was merely a wholesale distributor and did not own any interest in the marketing intangibles, which belonged to the parent company. The Tribunal found that the expenses incurred by the parent company were towards brand awareness and should not be borne by the assessee. The Tribunal upheld the TPO's adjustment, dismissing the assessee's grounds of appeal. 2. Transfer Pricing Adjustment for Assessment Year 2006-07: For Assessment Year 2006-07, the assessee declared a loss and the AO made a Transfer Pricing adjustment of Rs. 5,77,02,222 without referring the matter to the TPO, as the aggregate international transactions were below Rs. 15 Crores. The CIT(A) upheld the AO's decision. The Tribunal noted that the AO was not mandatorily required to refer the matter to the TPO for transactions below Rs. 15 Crores, as per the CBDT Circular. The Tribunal found no infirmity in the AO's action and upheld the Transfer Pricing adjustment. The Tribunal also addressed the T.P. adjustment on payment of cross charges for ex-pat costs and contractor charges, similar to the previous year. The Tribunal reiterated that the expenses were towards brand promotion and not solely for the assessee's business. The Tribunal upheld the TPO's adjustment and dismissed the assessee's grounds of appeal. 3. Charging of Interest under Section 234B: The assessee contested the charging of interest under section 234B, which the CIT(A) stated was mandatory and consequential. The Tribunal dismissed this ground, noting that the computation of interest under section 234B is mandatory in nature and requires no specific adjudication. Conclusion: The Tribunal dismissed the assessee's appeals for both Assessment Years 2005-06 and 2006-07, upholding the Transfer Pricing adjustments made by the TPO and the AO. The Tribunal found that the expenses incurred by the parent company were towards brand promotion and not solely for the assessee's business, and therefore, the adjustments were justified. The charging of interest under section 234B was also upheld as mandatory and consequential.
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