2017 (12) TMI 1636 - AT - Income Tax

TPA - benchmarking of transaction through the combined transaction approach by applying of TNMM or CUP - Held that - AO/TPO has not rebutted the basis adopted in the TP report for adopting TNMM and they failed to indicate the reasons for rejecting the TNMM as the most appropriate method. Further they have been incorrectly applied the CUP method without bringing out any comparable on record. It is contrary to Rule 10B(2) of the I.T. Rules 1962. Similarly it is also his arguments that the assessee had filed voluminous documents to establish that the IGS were needed by the assessee and are not duplicative in nature. All those details filed before the TPO/DRP were completely ignored. It is also his argument that the Department cannot question the commercial expediency of the transactions. In our opinion and considering the totality of the facts of the case the matter requires a fresh adjudication at the level of the Assessing Officer/TPO in the light of the various evidences produced before them and in the light of the decisions relied on by the assessee before us. We therefore restore the entire issue to the file of the Assessing Officer/TPO with a direction to decide the issue afresh in accordance with law after giving due opportunity of being heard to the assessee. We hold and directly accordingly. The grounds raised by the assessee are accordingly allowed for statistical purposes. Assessee appeal allowed for statistical purposes.

Issues Involved:
1. Rejection of the combined transaction approach using TNMM.
2. Application of CUP method for determining the arm's length price.
3. Assessment of the necessity and benefit of Intra Group Services (IGS).
4. Questioning the commercial expediency of transactions by the TPO/DRP.
5. Reliance on BEPS report by the DRP/TPO.

Detailed Analysis:

1. Rejection of the Combined Transaction Approach Using TNMM:
The assessee contended that the TPO wrongly rejected the combined transaction approach using the Transactional Net Margin Method (TNMM) for benchmarking international transactions. The TPO argued that the transactions were separate in nature, leading to the rejection of TNMM. The assessee argued that the combined transaction approach is well accepted under section 92C(1) of the I.T. Act, which includes 'nature of transaction or class of transaction.' The term 'transaction' is defined in Rule 10A(d) of the I.T. Rules, 1962, to include a number of 'closely linked transactions.' The OECD guidelines also support benchmarking closely linked transactions together. The Tribunal found merit in the assessee's argument and noted that the TPO's basis for rejection was illusory as there were no transactions of export commission, royalty, or model fee in the present case. The Tribunal restored the issue to the Assessing Officer/TPO for fresh adjudication.

2. Application of CUP Method for Determining the Arm's Length Price:
The TPO applied the Comparable Uncontrolled Price (CUP) method and determined the arm's length price as Nil without bringing any comparable on record. The assessee argued that the TPO/DRP's approach was contrary to Rule 10B(2) of the I.T. Rules, 1962, and judicial precedents. The Tribunal agreed with the assessee, citing decisions such as AWB India (P.) Ltd. v. Dy. CIT, Frigoglas India (P.) Ltd. v. Dy. CIT, and others, which emphasized the requirement of comparables for applying the CUP method. The Tribunal restored the issue to the Assessing Officer/TPO for fresh adjudication.

3. Assessment of the Necessity and Benefit of Intra Group Services (IGS):
The TPO/DRP questioned the necessity and actual receipt of IGS, deeming the services duplicative and not at arm's length. The assessee provided voluminous documents, including email correspondences, invoices, and an independent auditor's certificate, to substantiate the receipt of services. The Tribunal noted that the TPO rendered contradictory findings and ignored the evidence provided by the assessee. Citing decisions such as Knorr Bremse India (P.) Ltd. v. Asstt. CIT and E.I. DuPont India (P.) Ltd. v. Dy. CIT, the Tribunal emphasized that proving benefit from a transaction is not necessary. The Tribunal restored the issue to the Assessing Officer/TPO for fresh adjudication.

4. Questioning the Commercial Expediency of Transactions by the TPO/DRP:
The TPO/DRP questioned the commercial rationale of the legitimate business expenses incurred by the assessee. The Tribunal referred to the decision in CIT v. EKL Appliances Ltd., which established that the Department cannot question the commercial expediency of a transaction. The Tribunal restored the issue to the Assessing Officer/TPO for fresh adjudication.

5. Reliance on BEPS Report by the DRP/TPO:
The DRP/TPO relied on the Base Erosion and Profit Shifting (BEPS) report to reject the objections of the assessee. The assessee argued that the BEPS report, if read in entirety, supports the case for determining the arm's length price using TNMM and cannot be rejected as merely shareholder services. The Tribunal found merit in the assessee's argument and restored the issue to the Assessing Officer/TPO for fresh adjudication.

Conclusion:
The Tribunal restored the entire issue to the file of the Assessing Officer/TPO for fresh adjudication in light of the various evidences produced and judicial precedents cited by the assessee. The appeal filed by the assessee was allowed for statistical purposes.

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