2016 (5) TMI 1516 - AT - Income Tax

Addition on account of TPO adjustments - Comparable selection - additional evidence filed by assessee - HELD THAT - After going through the decision in the case of Hughes Systique 2013 (8) TMI 812 - ITAT DELHI we are of the opinion that it would be in the interest of justice to admit the additional evidence filed by assessee in the form of affidavit because this affidavit has come in possession of assessee after the proceedings were over for both the assessment years in question. We therefore set aside the order of ld. CIT(A) for AY 2005-06 and restore the matter to the file of ld. AO/TPO to decide the ALP of the commission paid by assessee after taking into consideration the affidavit of Ernst Huber Director of Taratec SA. Accordingly department s appeal for AY 2005-06 stands allowed for statistical purposes.

Summary

Issues Involved:
1. Deletion of Transfer Pricing (TP) adjustment by CIT(A).
2. Application of Transactional Net Margin Method (TNMM) vs. Comparable Uncontrolled Price (CUP) method.
3. Admission of additional evidence.
4. Determination of Arm's Length Price (ALP) for commission payments.
5. Corporate issues including disallowance under Section 14A and deduction under Section 43B.

Issue-wise Detailed Analysis:

1. Deletion of Transfer Pricing (TP) Adjustment by CIT(A):
The revenue appealed against the CIT(A)’s order which deleted the addition of Rs. 2,50,54,274/- made by the AO on account of TPO adjustments. The CIT(A) had partly allowed the assessee's appeal, deleting the TP adjustment. The department contested this deletion, arguing that the CIT(A) erred in applying the TNMM method instead of the CUP method adopted by the TPO and AO.

2. Application of TNMM vs. CUP Method:
The TPO had applied the CUP method, asserting that the AE acted as a mere routing agency, facilitating transactions without significant value addition. The CIT(A) applied the TNMM method, which was contested by the revenue. The TPO argued that the assessee sold goods at huge discounts to its AE compared to unrelated customers, thus the CUP method was more appropriate. The TPO rejected the comparable companies selected by the assessee for TNMM, as they did not engage in manufacturing watch dials and had negative average PLI.

3. Admission of Additional Evidence:
The assessee sought to admit additional evidence in the form of an affidavit from Ernst Huber, which was objected to by the CIT(DR) on procedural grounds. The Tribunal referred to the Hague Convention, which facilitates the admissibility of foreign public documents without diplomatic or consular legalization. The Tribunal admitted the additional evidence, noting its relevance in establishing the services rendered by the AE.

4. Determination of ALP for Commission Payments:
The TPO had determined the ALP for commission payments at NIL, rejecting the assessee’s claim of services rendered by the AE. The assessee claimed that the AE provided various services such as developing new customers, procuring orders, facilitating export shipments, and handling customer complaints. The Tribunal set aside the CIT(A)’s order and remanded the matter to the AO/TPO for reconsideration, taking into account the additional evidence provided.

5. Corporate Issues:
The assessee’s appeal for AY 2006-07 included corporate issues such as disallowance under Section 14A and deduction under Section 43B. The Tribunal restored these issues to the AO for fresh examination, clarifying that Rule 8D was not applicable for AY 2006-07.

Conclusion:
Both the appeals filed by the assessee and the department were allowed for statistical purposes. The Tribunal directed the AO/TPO to re-examine the ALP of commission payments and other corporate issues, considering the additional evidence and providing the assessee a reasonable opportunity of being heard. The order was pronounced in open court on 30/05/2016.