2014 (8) TMI 242 - AT - Income Tax

Transfer pricing adjustment Selection of comparables Functionally different company - Held that - Assessee is involved in manufacturing and marketing of food items, the four companies also should be included in comparability analysis - TPO was selective in selecting some and rejecting some which are in similar line of business - operating income should be excluded and manufacturing of snacks and operation of cold storage cannot be even considered to be closely related so as to aggregate it - the TPO is directed to re-examine this computation of mark-up by giving due opportunity to assessee and re-workout the adjustment and also by including the above four comparables which are also on the same line of business Decided in favour of Assessee. Non-grant of TDS MAT credit Held that - AO granted TDS credit only to the extent of ₹ 52,59,916 and denied TDS credit to an extent of ₹ 59,73,427 - even though the application u/s 154 was passed, it seems the same was rejected - Form 26A also reflects, TDS credit of more than what assessee claimed, there is no reason to deny the amount of credit which was already granted in an order u/s 143(1) Decided in favour of Assessee.

Summary

Issues involved:
1. Transfer pricing adjustments made by the Assessing Officer (AO) and confirmed by the Dispute Resolution Panel (DRP).
2. Exclusion of certain comparables in the Transfer Pricing (TP) study.
3. Rejection of credit for tax deducted at source (TDS) and Minimum Alternate Tax (MAT) credit.
4. Levy of interest under sections 234B and 234C.

Transfer Pricing Adjustments:
The case involved an appeal against the AO's order under sections 143(3) and 144C of the Income Tax Act, 1961, following the Transfer Pricing Officer's (TPO) order under section 92CA(3). The dispute centered around TP adjustments made by the AO, mainly related to the arm's length price of international transactions. The TPO rejected the assessee's cost plus and resale method, leading to adjustments in the income returned. The DRP confirmed the adjustments, leading to the appeal.

Exclusion of Comparables:
The main contention was the exclusion of certain comparables by the TPO, which the assessee objected to before the DRP. The objections focused on companies like Capital Foods, MTR Foods, Shivdeep Industries, and Venkatramana Food Speciality Limited. The assessee argued that these companies were functionally similar to its business and should have been included in the comparability analysis. The tribunal agreed with the assessee, directing the TPO to re-examine the computation of mark-up and include the four comparables in the analysis.

Credit for TDS and MAT:
The appeal also addressed the denial of credit for TDS and MAT by the AO. The assessee claimed discrepancies in the credit granted under sections 143(1) and 143(3). The tribunal directed the AO to re-examine and allow the correct credit amounts, considering the discrepancies highlighted by the assessee.

Levy of Interest:
Grounds No.12 and 13 of the appeal dealt with the levy of interest under sections 234B and 234C, linked to the TDS/MAT credit and additions made in the order. The tribunal directed the AO to re-calculate the interest, provide due opportunity to the assessee, and specify the calculations in the order. Grounds No.12 and 13 were allowed for statistical purposes.

In conclusion, the tribunal allowed the appeal for statistical purposes, directing the reassessment of TP adjustments, credit for TDS and MAT, and the levy of interest. The judgment emphasized the importance of including functionally similar comparables in the TP analysis and ensuring accurate credit calculations in tax assessments.