2018 (10) TMI 1886 - AT - Income Tax

TP Adjustment - Assessee has assailed the action of authorities below in rejecting CUP/internal Transactional Net Margin Method (TNMM) as the most appropriate method for determining arm s length price of the international transactions - grant of proportionate adjustment at entity level - HELD THAT - A perusal of the orders of authorities below show that the assessee had asked for adjustment only on the AE sales as disclosed in segmental accounts. The assessee in the immediately preceding assessment year 2010-11 had computed adjustment on same lines. DRP accepted the same. In the assessment year under appeal the adjustment is sought at entity level and there has been no change in the facts. DRP directed the TPO to make adjustment only on AE sales as was made in the preceding assessment year. The assessee in order to fortify his submissions with respect to allowability of adjustment at entity level has placed reliance on the decision of Co-ordinate Bench of the Tribunal in the case of WIKA Instruments India Pvt. Ltd. 2018 (4) TMI 1637 - ITAT PUNE - Appeal of Revenue is dismissed being devoid of any merit. Most appropriate method to be applied for determining Arm s Length Price (ALP) of international transactions in respect of provision for engineering design and services - HELD THAT - From the order of the Tribunal for assessment year 2009-10 we find merit in the plea of assessee that hourly rates charged by it in providing specialized services to its associated enterprises can be the basis for verifying its stand as to whether the services provided by the assessee to its associated enterprises were at arm s length. However the stand of Assessing Officer / TPO in rejecting the said plea of assessee was the tainted transactions vis- -vis costs incurred by the assessee both for associated enterprises and non-associated enterprises. In the totality of the above said facts and circumstances where the stand of assessee has not been looked into by the TPO and has been brushed aside we in the interest of justice direct the Assessing Officer / TPO to determine arm s length price of international transactions undertaken by the assessee by applying most appropriate method i.e. internal TNMM method of man hourly rates. The assessee has also asked for various other adjustments for carving out differences which may also be looked into by the TPO who shall decide the issue after affording reasonable opportunity of hearing to the assessee and determine arm s length price of international transactions.

Summary

Issues Involved:
1. Proportionate adjustments at entity level for Transfer Pricing.
2. Determination of income and transfer pricing adjustments.
3. Rejection of Comparable Uncontrolled Price (CUP) method and internal Transactional Net Margin Method (TNMM).
4. Rejection of audited segmental accounts and non-operating expenses.
5. Selection of comparable companies for benchmarking.
6. Compliance with Dispute Resolution Panel (DRP) directions.
7. Initiation of penalty proceedings under section 271(1)(c).

Detailed Analysis:

Issue 1: Proportionate Adjustments at Entity Level for Transfer Pricing
The Department challenged the DRP's direction to grant proportionate adjustments at the entity level, arguing that the entire transfer pricing exercise is carried out on the basis of the entity-level net margin. The Tribunal found that the DRP's direction was consistent with the previous year's assessment and supported by the decision of the Pune Bench in WIKA Instruments India Pvt. Ltd. and the Bombay High Court in Commissioner of Income Tax Vs. ALSTOM Projects India Limited. The Tribunal upheld the DRP's direction, stating that adjustments should be made only on AE sales and not at the entity level, thus dismissing the Department's appeal.

Issue 2: Determination of Income and Transfer Pricing Adjustments
The assessee objected to the determination of income at INR 4,63,77,290 against the returned income of INR 61,99,934. The Tribunal noted that the assessee's grounds were similar to those raised in the previous assessment year (2010-11). The Tribunal remitted the issue back to the TPO/Assessing Officer for de-novo adjudication, following the precedent set in the previous year's order.

Issue 3: Rejection of CUP Method and Internal TNMM
The assessee contended that the AO/DRP/TPO erred in rejecting the CUP method and internal TNMM for determining the arm’s length price of international transactions. The Tribunal observed that the facts and issues were identical to the previous assessment year. It directed the TPO/Assessing Officer to re-evaluate the methods used, considering the Tribunal's previous decision to apply the internal TNMM method of man-hour rates.

Issue 4: Rejection of Audited Segmental Accounts and Non-Operating Expenses
The assessee argued that the AO/DRP/TPO erred in rejecting audited segmental accounts and not considering non-operating expenses like underutilization of manpower capacity. The Tribunal remitted these issues back to the TPO/Assessing Officer for reconsideration, in line with the Tribunal's earlier decision.

Issue 5: Selection of Comparable Companies for Benchmarking
The assessee challenged the selection of comparable companies, arguing that the AO/DRP/TPO selected companies that were not functionally comparable and did not disclose the search process. The Tribunal directed the TPO/Assessing Officer to re-evaluate the selection of comparable companies, ensuring compliance with the provisions of Rule 108(1), (2), and (3) of the Income-tax Rules, 1962.

Issue 6: Compliance with DRP Directions
The assessee sought directions for the TPO to comply with the DRP's directions regarding the exclusion of INR 3,57,169 from the total taxable income, which related to the reversal of excess provision for interest on service tax disallowed in AY 2010-11. The Tribunal directed the Assessing Officer to comply with the DRP's directions, allowing this ground for statistical purposes.

Issue 7: Initiation of Penalty Proceedings under Section 271(1)(c)
The assessee contested the initiation of penalty proceedings under section 271(1)(c). The Tribunal deemed this ground premature and dismissed it as such.

Conclusion:
The Tribunal dismissed the Department's appeal and partly allowed the assessee's appeal for statistical purposes, remitting several issues back to the TPO/Assessing Officer for re-evaluation in line with previous decisions and directions. The Tribunal upheld the principle that transfer pricing adjustments should be made only on AE transactions and not at the entity level.