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2015 (2) TMI 203 - AT - Income TaxTransfer pricing adjustment - determination of ALP of royalty at 2% by TPO as against 3% claimed by assessee - assessee has benchmarked the royalty payment by bringing comparables both under TNMM as well as CUP - Held that - TPO has rejected the analysis done by assessee under both the methods without any reasonable basis nor has brought a single comparable to justify ALP of royalty at 2%. Unfortunately, ld. DRP has approached the entire issue in rather mechanical manner without examining whether approach of the TPO is in accordance with statutory mandate. Therefore, determination of ALP of royalty at 2% cannot be supported, hence, deserves to be struck down. Moreover, theory of benefit test applied by TPO also falls flat considering the fact that TPO does not question the necessity of paying royalty but only objects to the quantum. Further, quantum increase in sale with no apparent increase in production, minimal product recalls, low after sales maintenance cost certainly goes to prove assessee s claim that these could be achieved due to utilization of advanced technical know-how transferred by AE. The TPO has not been able disprove these facts with any sound argument. Considering the totality of facts and circumstances, we are of the opinion, reduction of rate of royalty by TPO from 3% to 2% is without any basis, hence, cannot be accepted. Accordingly, we delete the addition made on account of TP adjustment to royalty payment. - Decided in favour of assessee.
Issues Involved:
1. Adjustment to the arm's length price (ALP) of the royalty payment. 2. Rejection of the benchmarking approach and methodology. 3. Determination of ALP at 2% by the Transfer Pricing Officer (TPO). 4. Application of the benefit test by the TPO. Detailed Analysis: 1. Adjustment to the ALP of the Royalty Payment: The core issue in this appeal is the determination of the arm's length price (ALP) of the royalty paid by the assessee to its associated enterprise (AE). The TPO adjusted the royalty payment from 3% to 2%, resulting in a transfer pricing adjustment. The assessee, an Indian subsidiary of RAK Ceramics PSC, UAE, paid royalty at 3% of net sales for technical know-how and assistance. The TPO, however, determined the ALP at 2% based on the benefit test, leading to a reduction in the royalty payment and a corresponding adjustment. 2. Rejection of the Benchmarking Approach and Methodology: The assessee benchmarked its international transactions, including royalty payments, using the Transaction Net Margin Method (TNMM) and the Comparable Uncontrolled Price (CUP) method. The TPO rejected the TNMM analysis, arguing that intangible transactions like royalty should not be aggregated with tangible transactions. The TPO also dismissed the CUP analysis, citing the use of US-based comparables and the lack of relevant agreements. The TPO did not provide any comparables to justify the 2% royalty rate, leading to the rejection of the assessee's benchmarking approach. 3. Determination of ALP at 2% by the TPO: The TPO's determination of the ALP at 2% was based on the benefit test, which the assessee argued was not in conformity with the statutory provisions. The TPO failed to provide a valid reason or comparables to support the 2% rate. The Tribunal noted that the TPO did not follow any prescribed method under Section 92C of the Act and instead adopted an ad-hoc approach. The Tribunal emphasized that the TPO must determine the ALP by following the methods prescribed under the statute and cannot arbitrarily reduce the royalty rate. 4. Application of the Benefit Test by the TPO: The TPO applied the benefit test to determine the ALP, arguing that the increase in sales was due to the assessee's own marketing efforts rather than the technical know-how provided by the AE. The assessee contended that the benefit derived from the technical know-how was evident from increased sales, minimal product recalls, and low after-sales maintenance costs. The Tribunal found that the TPO's application of the benefit test was flawed and not supported by any comparables or valid reasoning. The Tribunal held that the TPO's approach was in complete violation of the transfer pricing provisions and settled principles of law. Conclusion: The Tribunal concluded that the TPO's reduction of the royalty rate from 3% to 2% was without any reasonable basis and not in accordance with statutory provisions. The Tribunal emphasized that the TPO must follow the prescribed methods for determining the ALP and cannot apply the benefit test arbitrarily. The Tribunal allowed the assessee's appeal, deleting the addition made on account of the transfer pricing adjustment to the royalty payment. The decision underscores the importance of adhering to statutory provisions and established methods in transfer pricing cases.
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