2013 (12) TMI 140 - AT - Income Tax

Transfer pricing adjustment - Held that - The relevant points raised on behalf of the assessee do not find any mention or proper discussion in DRP's direction which it is obliged to do so. The DRP is a quasi judicial authority and when dealing with a lis pending before it, it is obligatory on its part to ascribe cogent reasons as to why the assessee's contentions are not acceptable. In the present case, no such finding or reasons have been given in its order - All the issues raised in the appeal are restored for fresh adjudication. Transfer pricing adjustment - Held that - The difference in capacity utilization affects the profitability mainly because of the difference in rates at which the fixed overheads are absorbed or allocated depending on the level of capacity utilization - If the fixed overheads allocation or absorption of comparable is brought at the level of the assessee, it would nullify the effect of difference in capacity utilization on the profit margin - If the depreciation in case of a comparable is allowed at the same rate of its operating cost instead of the actual depreciation claimed, if it is lower, this adjustment, will take care of difference in capacity utilization - The order of CIT(A) is set aside for the A.Y. 2008-09.

Summary

Issues Involved:
1. Transfer pricing adjustment.
2. Disallowance under section 14A of the Income Tax Act.
3. Charging of interest under section 234B.

Detailed Analysis:

1. Transfer Pricing Adjustment:

Assessment Year 2006-07:
- The assessee, an export-oriented unit involved in manufacturing and exporting Switch Mode Power Supplies (SMPS), reported various international transactions with its Associated Enterprises (AEs) using the Cost Plus Method (CPM) for benchmarking.
- The Transfer Pricing Officer (TPO) rejected the assessee's method and determined the Profit Level Indicator (PLI) margin at 2.33%, using seven comparables with an average PLI of 8.90%, resulting in an adjustment of Rs. 5.34 crores.
- The Dispute Resolution Panel (DRP) summarily dismissed the assessee's objections without proper examination.
- The Tribunal found that the DRP failed to consider the assessee's detailed objections and documentation. It emphasized that the DRP, being a quasi-judicial authority, must provide cogent reasons for its decisions.
- The Tribunal restored the matter to the DRP for a fresh adjudication, directing it to consider the objections and pass a reasoned order.

Assessment Year 2008-09:
- Similar issues arose, with the TPO rejecting the assessee's PLI determination and making an upward adjustment of Rs. 11.66 crores.
- The TPO did not allow any adjustment for low capacity utilization, contradicting the assessee's claim of 20.22% utilization against the reported 85.95%.
- The DRP confirmed the TPO's findings without considering fresh evidence provided by the assessee.
- The Tribunal noted discrepancies in the capacity utilization figures and restored the matter to the TPO to verify the correct annual capacity and actual utilization.
- The Tribunal directed the TPO to consider the guidelines from the case of CIT v/s Petro Araldite Pvt. Ltd. for adjustments on account of capacity utilization.

2. Disallowance under Section 14A:
- In the assessment year 2006-07, the Assessing Officer disallowed Rs. 3,53,207 under section 14A.
- The Tribunal found that the DRP did not properly adjudicate this issue and restored it to the DRP for a fresh decision.

3. Charging of Interest under Section 234B:
- The issue of charging interest under section 234B was raised but not specifically detailed in the judgment. The Tribunal's directions imply that this issue will also be reconsidered in the fresh adjudication by the DRP.

Conclusion:
- The Tribunal allowed the appeals for both assessment years 2006-07 and 2008-09 for statistical purposes, directing the DRP and TPO to re-examine the issues afresh, considering all objections and evidence provided by the assessee, and to pass reasoned and detailed orders in accordance with the law.