2017 (4) TMI 1487 - AT - Income Tax

TP Adjustment - international transaction - pass through income - selection of MAM - comparable selection - HELD THAT - As argued that the assessee only exports software development services to AEs as well as non-AEs in USA and domestic clients. Thus KMG USA does extensive marketing and secure contracts with third parties and outsources the same to KMG India on Back to Back basis. The assessee-company serves as an execution centre for contracts won by KMG USA. KMG USA does not retain any margins from the amount billed to end customers. For the services performed by AE, assessee-company pays commission at 10% for offshare services and 25% on onsite revenue services. Thus, revenue earned by the assessee-company from its AE is only pass through income and they are not an international transaction. It is the contention of the assessee that TPO had not considered the submissions of the assessee-company. DRP rejected the assessee-company s contentions without assigning reasons whatsoever. The assessee also contends that the TPO as well as DRP had not assigned any reason as to why CUP method is not most appropriate method in the nature of transactions assesseecompany had with its AE. It was also submitted that TPO has not considered the alternative submissions of the assesseecompany that in case TNMM is adopted as the most appropriate method, same should be applied based on internal comparables rather than external comparables. Now, law is quite settled that internal comparables are more preferable to external comparables. Finally, learned authorised representative of the assessee submitted that the TPO had not considered the submissions of the assessee-company for adjustment towards unutilized capacity. The AO also not followed directions of the DRP while passing final assessment order. In the circumstances, it was prayed that the matter may be restored back to the file of the AO for de novo consideration. CIT(DR) had no serious objections for restoring the matter back to the file of the AO/TPO for fresh analysis of TP study. In the circumstances, we remit the matter back to the AO to consider the above submissions de novo after affording due opportunity of being heard to the assessee-company.

Summary

Issues:
1. Validity of reference by AO to TPO for determining ALP
2. Rejection of CUP method by TPO
3. Selection of comparables by TPO and DRP
4. Compliance with DRP directions by AO
5. Consideration of underutilization adjustment
6. Preference of internal comparables over external comparables
7. Adjustment for unutilized capacity
8. Consideration of submissions by assessee-company
9. Direction of DRP not followed by AO
10. Remitting the matter back to AO/TPO for fresh analysis

Analysis:

1. The appeal involved a challenge to the validity of the reference by the Assessing Officer (AO) to the Transfer Pricing Officer (TPO) for determining the Arm's Length Price (ALP). The appellant contended that the reference was not valid in law as the AO failed to demonstrate the necessity for such reference. The Dispute Resolution Panel (DRP) confirmed the TPO's findings, leading to the AO incorporating TP adjustments in the draft and final assessment orders.

2. The TPO rejected the Comparable Uncontrolled Price (CUP) method adopted by the assessee-company for determining ALP. The appellant argued that the TPO erred in rejecting the TP analysis under the CUP method without providing sufficient justification. The contention was that the nature of transactions with associated enterprises (AEs) warranted the use of the CUP method.

3. Both the TPO and DRP selected comparables for benchmarking the international transactions, with the DRP excluding certain companies based on turnover limits. The appellant raised objections regarding the selection of comparables, emphasizing the need for internal comparables over external ones and challenging the rejection of the CUP method.

4. The AO failed to comply with the DRP's directions to exclude certain companies based on turnover filters, leading to discrepancies in the final assessment order. The appellant contended that the AO did not consider the DRP's findings, resulting in the inclusion of comparables that were deemed inappropriate by the DRP.

5. The issue of underutilization adjustment was raised by the appellant, highlighting the need for adjustments related to manpower, capacity, and risk factors in computing the ALP. The TPO's failure to consider these adjustments was a point of contention during the proceedings.

6. The preference for internal comparables over external ones was a key argument put forth by the appellant, emphasizing that internal comparables would provide a more accurate benchmark for the international transactions. The appellant challenged the TPO's reliance on external comparables and sought consideration of internal comparables for a fair assessment.

7. Adjustment for unutilized capacity was another aspect raised by the appellant, stressing the importance of factoring in capacity utilization and risk adjustments in determining the ALP. The appellant sought adjustments that were not adequately addressed by the TPO in the TP analysis.

8. The appellant highlighted the TPO and DRP's failure to consider the submissions made regarding the nature of transactions, choice of TP method, and adjustments for capacity utilization. The lack of reasoning behind the rejection of certain methods and adjustments was a significant concern for the appellant.

9. The appellant contested the AO's non-compliance with the DRP's directions, leading to discrepancies in the final assessment order. The failure to exclude certain comparables as directed by the DRP raised questions about the consistency and validity of the assessment process.

10. Ultimately, the matter was remitted back to the AO/TPO for a fresh analysis of the TP study, allowing for a reevaluation of the submissions made by the appellant and a more thorough consideration of the relevant factors in determining the ALP. The partial allowance of the appeal indicated a need for a more comprehensive review of the TP aspects involved in the case.