2014 (1) TMI 852 - AT - Income Tax

ALP - Selection of comparables - Computation of difference in PLI (Profit Level Indicator) Held that - It is very clear from the computation of the assessee that the provision for outstanding derivative contracts was already added back in computing the total income of the assessee Thus, the further addition made by the Assessing Officer has resulted in duplication - the addition of Rs. 60 lakhs is to be deleted. Non consideration of extra-ordinary items Held that - The TPO ought to have considered the extra-ordinary items while finalizing the Arm s Length Price (ALP) computation - proper weightage has to be given for all these extra-ordinary items explained by the assessee before the TPO - there will be no operating profit available for making ALP adjustment when the extra-ordinary items are given due treatment - nothing will be remained to make any addition by way of ALP adjustment - the order for entire ALP adjustment made by the assessing authority set aside Decided in favour of Assessee.

Summary

Issues:
1. Jurisdiction of assessment order under Income-tax Act, 1961
2. Revising Arms Length Price and making additions
3. Consideration of internal comparables in Transfer Pricing
4. Adjustments to operating costs and PLI computation
5. Treatment of provision for outstanding derivative contracts
6. Adjustment of brought forward losses
7. Exclusion of extraordinary items in PLI computation

Issue 1: Jurisdiction of assessment order under Income-tax Act, 1961
The appeal relates to the assessment year 2008-09 and is a Transfer Pricing Appeal against the order passed under section 143(3), read with section 144C(1) of the Income-tax Act, 1961.

Issue 2: Revising Arms Length Price and making additions
The primary dispute is regarding the computation of the difference between the Profit Level Indicator (PLI) of the assessee and the PLI of comparables. The Tribunal found that the Transfer Pricing Officer (TPO) had erroneously calculated the difference at 5.81% instead of the correct 1.14%. The correct adjustment to be made was Rs. 1 crore, but the authorities had added back a provision for outstanding derivative contracts, resulting in duplication. The Tribunal ordered the deletion of this additional amount, reducing the adjustment to Rs. 40 lakhs.

Issue 3: Consideration of internal comparables in Transfer Pricing
The Tribunal emphasized the importance of considering internal comparables while determining the Arm's Length Price, rather than relying solely on external comparables. The Assessing Officer's failure to consider internal comparables was noted and rectified by the Tribunal.

Issue 4: Adjustments to operating costs and PLI computation
The Tribunal addressed the errors made by the Assessing Officer in rejecting adjustments to operating costs sought by the appellant. Various impacts such as higher material costs, delayed indigenization, premium freight costs, quality costs, selling expenses, exchange fluctuations, and outstanding derivative contracts were considered necessary adjustments in computing the PLI of the appellant.

Issue 5: Treatment of provision for outstanding derivative contracts
The Tribunal clarified that the provision for outstanding derivative contracts, which had already been added back in computing the total income, should not have been further adjusted in arriving at the PLI. The Tribunal ordered the deletion of this additional adjustment.

Issue 6: Adjustment of brought forward losses
The Assessing Officer erred in not allowing the adjustment of brought forward losses, which the Tribunal deemed necessary for accurate computation of the appellant's PLI.

Issue 7: Exclusion of extraordinary items in PLI computation
The Tribunal highlighted the importance of excluding extraordinary items while computing the Arm's Length Price. It emphasized that the TPO should have considered these items and given proper weightage to them in the computation. The Tribunal ruled in favor of the assessee, deleting the entire ALP adjustment made by the assessing authority.

In conclusion, the Tribunal allowed the appeal filed by the assessee, considering the various errors and discrepancies in the assessment order and computation of the Arms Length Price. The judgment provided detailed reasoning for each issue addressed, ensuring a fair and just resolution in accordance with the Income-tax Act, 1961.