2014 (9) TMI 265 - AT - Income Tax

Audited profit margin - Arm s length principle can be applied on domestic transactions or not Selection of comparables Functionally different unit Held that - Assesses OP margin over sales earned by transaction of sale of goods purchased from associated enterprise, in accordance with the audited segment account, being within safe harbor range of /- 5% of OP margin of the comparable companies considered by the TPO at 8.82%, the international transaction undertaken by the appellant should be considered at arm s length - since the business model of the BPC is different from the appellant in as much as the BPC enjoys a monopolistic economy and the appellant is established in a competitive market, the same shall not be considered as functionally similar to the appellant and excluded from the final set of comparable companies. TPO and DRP have not appreciated the facts that assessee has made out a strong prima facie case about Bharat Power Corpn., being not an appropriate comparable in terms of functionality and FAR - With the material on record both the authorities ought to have given objective findings on the submissions made by the assessee in this behalf - Besides DRP itself in preceding year has accepted the inclusion of assessee s comparable Spectra Industries Limited, in final list of comparable - TPO s order has not considered this aspect there was no justification on record to deviate from what DRP has adopted thus, the matter is to be remitted back to the Ao for fresh adjudication Decided in favour of Assessee.

Issues Involved:
1. Transfer pricing adjustment.
2. Rejection of audited segmental profit statement.
3. Inclusion of Bharat Power Corporation Limited as a comparable.
4. Exclusion of Spectra Industries Limited as a comparable.
5. Initiation of penalty proceedings under Sections 271AA and 271(1)(c) of the Income-tax Act.
6. Levying of interest under Sections 234B and 234C of the Income-tax Act.

Detailed Analysis:

1. Transfer Pricing Adjustment:
The assessing officer (AO) completed the assessment at an income of Rs. 12,24,31,931 against the returned income of Rs. 4,45,96,480, making a transfer pricing adjustment of Rs. 7,78,35,451. The AO/DRP did not consider the audited segmental profit statement submitted by the appellant, citing reasons such as the report being issued by a sister concern and discrepancies from audited accounts and TP report.

2. Rejection of Audited Segmental Profit Statement:
The AO/DRP rejected the audited segmental profitability certified by an independent firm of Chartered Accountants, favoring the unaudited segment profit analysis submitted with the transfer pricing documentation. The rejection was based on the grounds that the segmentation was issued by a sister concern, discrepancies with audited accounts, and reliance on 'test checks' for preparation.

The appellant argued that the certified segmental profitability was placed on record before the TPO and that the rejection was based on conjectures and surmises without pointing out any objective defect. The appellant's financial statements showed two segments-export and domestic-further bifurcated into trading and commission/service segments. The certified segment profitability was consistent with the audited financial statements.

3. Inclusion of Bharat Power Corporation Limited as a Comparable:
The TPO included Bharat Power Corporation Pvt. Ltd. as a comparable, which the appellant contested, arguing that it was functionally not comparable due to its involvement in the coal mining industry and providing services to Coal India Ltd. The appellant cited decisions where government enterprises were excluded from comparables due to different functional profiles and lesser market risks.

4. Exclusion of Spectra Industries Limited as a Comparable:
The TPO excluded Spectra Industries Limited on the grounds of declining sales. The appellant argued that revenue is not a true indicator of performance and that the company had managed to maintain its profits and net worth. The appellant also noted that the DRP in the preceding year had included Spectra Industries Limited as a comparable.

5. Initiation of Penalty Proceedings under Sections 271AA and 271(1)(c):
The AO/DRP initiated penalty proceedings under Section 271AA for not appreciating that the transfer pricing documentation was duly prepared and maintained before the due date of filing the return of income. Additionally, penalty proceedings under Section 271(1)(c) were initiated.

6. Levying of Interest under Sections 234B and 234C:
The AO levied interest under Sections 234B and 234C of the Income-tax Act, which was contested by the appellant.

Separate Judgments:
The Tribunal found that the AO and DRP did not appreciate the facts regarding the non-comparability of Bharat Power Corporation and the inclusion of Spectra Industries Limited. The Tribunal set aside the issues to the AO to decide in accordance with the law, considering the observations and material on record. The appeal was allowed for statistical purposes.

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