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2019 (2) TMI 2023 - AT - Income TaxTP adjustment made in respect of finished goods exported to the Associated Enterprises (AE) of the assessee - difference in the level of capacity utilization - assessee herein is a subsidiary of SKF Inc. US, which is a leading global supplier for products, sales and services for rolling bearing and seals business - Assessee had adopted TNMM method as most appropriate method and operating profit margin to sales ratio as PLI - HELD THAT - We noticed that the Hon ble Bombay High Court in the case of Petro Araldite (P.) Ltd. 2018 (6) TMI 452 - BOMBAY HIGH COURT and the Delhi Bench of the Tribunal in the case of Claas India (P.) Ltd. 2015 (8) TMI 755 - ITAT DELHI have held that the adjustment towards difference in capacity utilization is required to be made in terms of Rule 10B(1)(e)(iii) of the Income-tax Rules. We find merit in the prayer of the assessee for the adjustment towards the difference in the level of capacity utilization. Since this issue has not been examined by the tax authorities and since the assessee has to furnish necessary details in order to support its claim, which in turn requires examination at the end of AO, we deem it proper to restore it to the file of the AO / TPO for examining the claim of the assessee. Accordingly, we set aside the order passed by the learned CIT(A) on this issue and restore the same to the file of the AO / TPO for examining the claim of the assessee, in accordance with law, by duly considering the decisions rendered by the High Court / Tribunal on capacity utilization adjustment. After affording adequate opportunity of being heard to the assessee, the A.O. may take appropriate decision in accordance with law. Appeal filed by the assessee is treated as allowed for statistical purposes.
Issues Involved:
1. Transfer pricing adjustment concerning finished goods exported to Associated Enterprises (AE). 2. Capacity utilization adjustment in the context of transfer pricing. Issue-wise Detailed Analysis: 1. Transfer Pricing Adjustment Concerning Finished Goods Exported to Associated Enterprises (AE): The appeal is directed against the order confirming the addition of Rs.72.73 lakhs related to the transfer pricing adjustment for the export of finished goods to the AE of the assessee. The assessee, a subsidiary of SKF Inc. US, engaged in international transactions with its AE, including the export of finished goods. The primary contention revolves around the Arm's Length Price (ALP) adjustment for these transactions. The assessee adopted the Transactional Net Margin Method (TNMM) and used the operating profit margin to sales ratio as the Profit Level Indicator (PLI). The OP/Sales in the manufacturing segment before depreciation was computed at (-) 12.70%. The assessee selected four comparables with an average PLI of 9.23%. However, the assessee recomputed the average margin of comparables by excluding depreciation and overheads, which led to a PLI of 24% for comparables and 25% for itself, claiming the transactions were at arm's length. The Transfer Pricing Officer (TPO) disagreed but excluded depreciation, resulting in a PLI of 14.75% for comparables and an adjustment of Rs.72.73 lakhs, which was confirmed by the CIT(A). 2. Capacity Utilization Adjustment in the Context of Transfer Pricing: The assessee sought the exclusion of depreciation and fixed costs due to lower capacity utilization (42%) compared to comparables (70%). The rationale was that overheads and depreciation impacted profit margins irrespective of capacity utilization. The assessee argued that higher capacity utilization results in lower per unit costs, necessitating adjustments for meaningful comparisons. The assessee relied on the decision of the Hon'ble Bombay High Court in CIT v. Petro Araldite (P.) Ltd. and the Delhi Bench of the Tribunal in DCIT v. Claas India (P.) Ltd., which recognized adjustments for differences in capacity utilization under Rule 10B(1)(e)(iii) of the Income-tax Rules. The Tribunal agreed that adjustments should be made to the profit margins of comparables, not the assessee, to account for capacity utilization differences. The Tribunal cited the detailed discussion by the Delhi Bench in Claas India (P.) Ltd., emphasizing that adjustments should be made in the hands of comparables. The Tribunal noted that the authorities below had incorrectly adjusted the operating costs of the assessee instead of comparables. The correct approach is to adjust the operating costs and resultant profit margins of comparables to reflect the same capacity utilization level as the assessee. Given the lack of examination by tax authorities and the need for the assessee to provide necessary details, the Tribunal restored the issue to the file of the AO/TPO for re-examination. The AO/TPO is directed to consider the decisions rendered by the High Court/Tribunal on capacity utilization adjustment and make an appropriate decision in accordance with the law after affording the assessee an opportunity to be heard. Conclusion: The appeal filed by the assessee is treated as allowed for statistical purposes, with the order set aside and the matter remanded to the AO/TPO for re-examination of the capacity utilization adjustment claim in accordance with the law.
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