2020 (6) TMI 817 - AT - Income Tax

TP Adjustment - applicability of principle laid down in the Advance Pricing Agreement APA for benchmarking the international transactions - HELD THAT - As when undisputedly there is no change in the FAR of the taxpayer in the year under assessment vis- -vis years covered under APA and consolidated margin (OP/OC) computed as per APA at 19.26% is much more than the consolidated margin agreed upon between the taxpayer and the CBDT for the years covered under APA at 16.60% for both the segments, APA though not specifically applicable to the year under assessment, is having persuasive value to the dispute between the parties for other years. Hon ble Delhi High Court in the case of PCIT vs. Ameriprise India Pvt. Ltd 2016 (3) TMI 1272 - DELHI HIGH COURT held that when under the APA entered into between the taxpayer and the CBDT under section 92CC aforementioned cost plus pricing methodology has been implicitly accepted, the APA has persuasive value to the dispute in question for other years. We are of the considered view that when in the APA entered into between the taxpayer and the CBDT though for the roll back years and subsequent years, application of most appropriate transfer pricing method and arm s length price of these transactions have already been agreed upon between the taxpayer and CBDT and there is no change in the FAR and nature of international transactions entered into during the year under consideration vis- -vis earlier years and subsequent years, principle laid down in the APA for benchmarking the international transactions in question shall have a guidance value. Moreso these days, it is endevour of the Union of India to stop avoidable litigations and this case falls in the category of cases where litigation can be minimized. As brought on record by the taxpayer the consolidated margin (OP/OC) for the year under assessment as 19.26% as against ALP agreed upon between the parties to the appeal under APA at 16.60%. So, we are of the considered view that transfer pricing adjustment made by the AO/TPO/CIT(A) by applying Transfer Pricing principles is not sustainable, hence ordered to be deleted subject to the verification of computation of margin made by the taxpayer as per APA referred. - Decided against revenue.

Issues Involved:
1. Assessment of total income.
2. Validity of reference to Transfer Pricing Officer (TPO).
3. Determination of arm's length adjustment for international transactions.
4. Rejection of quantitative filters and transfer pricing study.
5. Denial of economic adjustments for working capital and risk profile differences.
6. Applicability of Advance Pricing Agreement (APA).
7. Levying of interest under sections 234A, 234B, and 234C.
8. Initiation of penalty proceedings under section 271(1)(c).

Detailed Analysis:

1. Assessment of Total Income:
The taxpayer contested the assessment of total income at INR 51,94,13,025 as against the returned income of INR 33,64,00,315. The Tribunal noted that the taxpayer's consolidated margin (Operating Profit/Operating Cost) for the year was 19.26%, which was higher than the arm's length price (ALP) of 16.60% agreed upon in the APA. The Tribunal ruled in favor of the taxpayer, directing the deletion of the transfer pricing adjustment subject to verification of the computation of margin.

2. Validity of Reference to TPO:
The taxpayer argued that the reference made by the Assessing Officer (AO) to the TPO for determining the arm's length price was void ab initio and violated principles of natural justice. This issue was not pressed during the course of arguments and thus was not adjudicated by the Tribunal.

3. Determination of Arm's Length Adjustment:
The taxpayer challenged the arm's length adjustment made by the AO/TPO/CIT(A) for its international transactions. The Tribunal held that since there was no change in the Functions, Assets, and Risks (FAR) profile of the taxpayer during the assessment year compared to the years covered under the APA, the APA had persuasive value. The Tribunal ruled that the transfer pricing adjustment made by the AO/TPO/CIT(A) was not sustainable and ordered its deletion.

4. Rejection of Quantitative Filters and Transfer Pricing Study:
The taxpayer contended that the AO/TPO/CIT(A) had erred in rejecting the quantitative filters and transfer pricing study. This issue was not pressed during the arguments and thus was not adjudicated by the Tribunal.

5. Denial of Economic Adjustments:
The taxpayer argued that the AO/TPO/CIT(A) erred in denying economic adjustments for differences in working capital and risk profile. This issue was also not pressed during the arguments and thus was not adjudicated by the Tribunal.

6. Applicability of Advance Pricing Agreement (APA):
The taxpayer contended that the AO/TPO/CIT(A) did not apply the terms of the APA to the international transactions despite no change in the FAR profile. The Tribunal agreed with the taxpayer, stating that the APA, though not specifically applicable to the year under assessment, had persuasive value. The Tribunal ruled in favor of the taxpayer, directing the deletion of the transfer pricing adjustment subject to verification of the computation of margin.

7. Levying of Interest:
The taxpayer challenged the levying of interest under sections 234A, 234B, and 234C. The Tribunal noted that the taxpayer had filed the income-tax return within the extended due date and directed the AO to delete the interest after due verification.

8. Initiation of Penalty Proceedings:
The taxpayer argued that the initiation of penalty proceedings under section 271(1)(c) was erroneous. The Tribunal found this ground to be premature and did not provide specific findings.

Conclusion:
The appeals filed by the taxpayer were allowed, and the appeals filed by the Revenue were dismissed. The Tribunal ruled in favor of the taxpayer on the key issues of transfer pricing adjustment and applicability of the APA, while also directing the deletion of interest levied under sections 234A, 234B, and 234C subject to verification. The initiation of penalty proceedings was deemed premature and required no specific findings.

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