2015 (10) TMI 1067 - AT - Income Tax

Transfer pricing adjustment - Held that - In the subsequent assessment years of 2006-07 and 2007-08, the nature of functions of the assessee in the segment of Provision of marketing support services to the associated enterprises has been accepted by the TPO to be that of a service provider and not a distributor. Even with regard to the manner of computing the PLI in the subsequent assessment years the formula adopted by the assessee of Operating Profits/ Total cost has been accepted. For all the above reasons, the present appeal of the Revenue is devoid of any merit. - Decided against revenue.

Summary

Issues:
1. Characterization of the assessee as a service provider or a distributor.
2. Determination of the Profit Level Indicator (PLI) for transfer pricing.

Issue 1: Characterization of the assessee as a service provider or a distributor:
The dispute revolved around whether the assessee, engaged in providing marketing and installation support services to associated enterprises, should be considered a service provider or a distributor. The Transfer Pricing Officer (TPO) contended that the assessee acted as a full-fledged distributor, performing activities like sales, marketing, and installation, assuming risks akin to a distributor. The TPO emphasized that the income was realized only upon sale value realization by associated enterprises. In contrast, the assessee argued that it was merely a marketing support service provider, not involved in pricing decisions or bearing inventory risks. The Commissioner of Income Tax (Appeals) supported the assessee's characterization as a service provider, negating the TPO's stance. The CIT(A) upheld that the assessee's role was that of a service provider, not a distributor, based on the nature of its international transactions. The Revenue's appeal against this decision was dismissed by the Appellate Tribunal, affirming the CIT(A)'s order.

Issue 2: Determination of the Profit Level Indicator (PLI) for transfer pricing:
Another point of contention was the computation of the PLI for transfer pricing purposes. The TPO altered the PLI calculation from Operating profits/Total costs to Operating profit/Sales, resulting in an upward adjustment in the arm's length price of international transactions. The assessee challenged this change, arguing that as a service provider, the PLI should be based on costs, not sales. The CIT(A) supported the assessee's position, aligning with the assessment year 2004-05 decision. The Revenue's appeal against this decision was also dismissed by the Appellate Tribunal, following the precedent set in the earlier assessment year. The Tribunal affirmed the CIT(A)'s order, emphasizing the consistency in characterizing the assessee as a service provider and maintaining the PLI calculation based on costs.

In conclusion, the Appellate Tribunal upheld the Commissioner of Income Tax (Appeals)'s decision, dismissing the Revenue's appeal. The judgment emphasized the consistent characterization of the assessee as a service provider and the appropriate PLI calculation method based on costs rather than sales. The Tribunal's decision was in line with the assessment year 2004-05 ruling, ensuring uniformity in treatment across consecutive years.