2017 (7) TMI 1213 - HC - Income Tax

TPA - functional comparable of M/s. Cosmic Global Ltd. with the assessee so as to include or exclude from the list of comparables for determining the ALP in respect of the International Transaction - Held that - So far as M/s. Cosmic Global Ltd. is concerned the Tribunal has come to the conclusion that the nature of business of said M/s. Cosmic Global Ltd. was distinct from the one carried out by the assessee as such was not functionally comparable. The said finding appears to be a finding of fact. Moreover the Assessing Officer had the opportunity to consider the functional comparability of M/s. Cosmic Global Ltd. with the assessee and it appears that the Assessing Officer subsequently has held that the nature of business of M/s. Cosmic Global Ltd. is different than that of the assessee. As such question nos. 2 and 3 raised herein would not survive. So far as question raised with regard to LIBOR plus 2% as directed by the Tribunal the same appears to be in tune with the judgment of this Court in COMMISSIONER OF INCOME-TAX-2 VERSUS TATA AUTOCOMP SYSTEMS LTD. 2015 (4) TMI 681 - BOMBAY HIGH COURT

Summary

Issues:
1. Transfer Pricing Adjustment for International Transaction
2. Relevance of M/s. Cosmic Global Ltd. as a comparable
3. Compliance with Rule 10D of Income Tax Rules
4. Determination of ALP interest using LIBOR plus 2%

Transfer Pricing Adjustment for International Transaction:
The appellant argued that the Tribunal erred in setting aside the issue of Transfer Pricing Adjustment for an International Transaction, specifically concerning UK VISA processing services. The appellant contended that the Tribunal should not have directed the Assessing Officer to examine the functional comparability of M/s. Cosmic Global Ltd. with the assessee, as the appellant had already accepted M/s. Cosmic Global Ltd. as functionally comparable. The appellant further claimed that the Tribunal's decision was unjustified as the assessee failed to produce necessary documents before the Transfer Pricing Officer (TPO) as required by Rule 10D of the Income Tax Rules.

Relevance of M/s. Cosmic Global Ltd. as a Comparable:
The respondent argued that the Tribunal's decision to exclude M/s. Cosmic Global Ltd. as a comparable was justified, as the nature of business conducted by M/s. Cosmic Global Ltd. was found to be distinct from that of the assessee. The respondent highlighted that the Assessing Officer had also determined that the nature of business of M/s. Cosmic Global Ltd. differed from that of the assessee, thus supporting the Tribunal's decision.

Compliance with Rule 10D of Income Tax Rules:
The appellant contended that the assessee's failure to maintain and provide necessary documents as per Rule 10D of the Income Tax Rules should not have led to the setting aside of the Transfer Pricing Adjustment issue by the Tribunal. The appellant emphasized that the Tribunal should not have directed the Assessing Officer/TPO to determine the Arm's Length Price (ALP) interest using LIBOR plus 2% without considering the rates prevalent in the Indian market.

Determination of ALP Interest using LIBOR plus 2%:
The Tribunal's direction to consider LIBOR plus 2% for determining the ALP interest was supported by the respondent, citing a previous judgment of the Court. The respondent argued that the Assessing Officer had recalculated the Transfer Pricing Adjustment in line with the Tribunal's directions and subsequent decisions. The Court found that the direction to use LIBOR plus 2% was consistent with previous judgments, leading to the dismissal of the appeal as no substantial question of law was found to arise.