2014 (4) TMI 72 - AT - Income Tax

Transfer pricing adjustment - Method to determine ALP - Selection of comparable - application of turnover filter - Assessee adopted Cost Plus Method (CPM) for computing arm s length price for its international transactions - Whether, CPM is most appropriate method to determine ALP and not Transactional Net Margin Method (TNMM) Held that - CPM is most appropriate method to determine ALP and not TNMM - This issue is squarely covered by decision of Tribunal in Deputy Commissioner of Income-tax, Circle-2(2) Versus Hellosoft India (P.) Ltd. 2013 (10) TMI 747 - ITAT HYDERABAD which has been accepted by learned AR - Following earlier order TNMM is most appropriate method to determine ALP - Set aside order of CIT(A) and remit matter back to file of AO/TPO who shall determine ALP afresh Decided against the assessee. Regarding Turnover Filter - Held that - Tribunal in assessee s own case 2013 (10) TMI 747 - ITAT HYDERABAD has accepted turnover filter as a relevant factor following the decision of the ITAT, Hyderabad Bench in case of Dy. CIT v. Deloitte Consulting 2011 (7) TMI 583 - ITAT HYDERABAD The Hon ble Delhi High Court has also upheld this view in case of Agnity India Technologies (P.) Ltd. 2013 (7) TMI 696 - DELHI HIGH COURT - while applying the turnover filter a fixed upper limit cannot be applied uniformly and across the board in all cases. The upper limit has to be fixed reasonably, keeping in view the turnover of the assessee in a given case. - Decided in favor of assessee. Regarding onsite revenue filter and employee cost filter - Held that - the issues are squarely covered by the decision of the coordinate bench in assessee s own case 2013 (10) TMI 747 - ITAT HYDERABAD - CIT (A) was correct in holding that rejection of comparables selected by the assessee by applying this filter is not correct. - loss making companies and companies having super normal profits cannot be considered as comparables - AO to decide the said issues following the earlier decision - Matter remanded back - Decided against the revenue.

Summary

Issues Involved:
1. No adjustment required due to lack of profit shifting allegation.
2. Appropriate method for determining ALP: CPM vs. TNMM.
3. Application of Turnover Filter.
4. Application of Risk Filter.
5. Application of Onsite Revenue Filter.
6. Application of Employee Cost Filter.
7. Relief as per the proviso to section 92C(2).

Detailed Analysis:

1. No Adjustment Required Due to Lack of Profit Shifting Allegation:

The assessee argued that no adjustment was necessary since there was no allegation of shifting profits between tax jurisdictions, especially given their eligibility for deduction under section 10A of the Act. However, the Tribunal rejected this argument, citing earlier decisions, including the case of Coca Cola India Inc v. ACIT, which clarified that the application of Transfer Pricing provisions does not require proving profit shifting or tax evasion. The Tribunal emphasized that the only condition for invoking these provisions is the existence of income from international transactions, which must be computed at arm's length price.

2. Appropriate Method for Determining ALP: CPM vs. TNMM:

The assessee contended that the Cost Plus Method (CPM) was the most appropriate method for determining the Arm's Length Price (ALP), contrary to the TPO's preference for the Transactional Net Margin Method (TNMM). The Tribunal upheld the TPO's choice, referencing its earlier decisions for AY 2005-06 and 2006-07, which had already established TNMM as the appropriate method for the assessee's case.

3. Application of Turnover Filter:

The assessee argued that the scale of operations should be considered when selecting comparables, asserting that companies with significantly different turnovers should not be compared. The Tribunal agreed, referencing its earlier decisions and the Delhi High Court's ruling in CIT v. Agnity India Technologies (P.) Ltd. However, it noted that the upper limit for the turnover filter should be reasonable and case-specific. The issue was remitted back to the AO for fresh consideration in line with these guidelines.

4. Application of Risk Filter:

The assessee claimed that as a captive service provider with no risk exposure, risk adjustments should be allowed. The Tribunal agreed, citing its previous decision that the assessee, being a captive service provider, assumes no risk. Consequently, a 1% risk adjustment was allowed, consistent with the Tribunal's earlier rulings.

5. Application of Onsite Revenue Filter:

The assessee argued against the TPO's application of the onsite revenue filter, stating that relevant information was not publicly available and that the TPO had not applied this filter uniformly. The Tribunal upheld this view, referencing its earlier decision which criticized the inconsistent application of this filter by the TPO. The issue was directed to be reconsidered by the AO in light of the Tribunal's previous rulings.

6. Application of Employee Cost Filter:

The assessee contended that the employee cost filter was inappropriate due to inconsistent reporting by companies. The Tribunal agreed, noting that relevant data was often unavailable and that employee costs were reported under various heads. This issue was also directed to be reconsidered by the AO, following the Tribunal's earlier decisions.

7. Relief as per the Proviso to Section 92C(2):

The Tribunal directed the AO/TPO to determine the ALP afresh, considering the Tribunal's directions. If the price shown by the assessee for international transactions was within the (+)/(-) 5% range of the determined ALP, no adjustment would be required.

Conclusion:

The appeal was partly allowed for statistical purposes, with the Tribunal directing the AO/TPO to reassess the ALP in accordance with the Tribunal's guidelines and previous rulings. The Tribunal emphasized the need for consistency and reasonable application of filters and adjustments, ensuring that the assessee's international transactions are evaluated fairly and accurately.