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2022 (4) TMI 1492 - AT - Income TaxTP Adjustment - ALP determination - prescribed method mentioned for determining the ALP of international transactions - whether TPO had failed to apply any method while determining the ALP at nil for GIS services; for determining the ALP of payment made towards MSF services by accepting 20% thereon on adhoc basis and accepting 50% for MNC services on adhoc basis thereon? - HELD THAT - As decided in assessee own case 2019 (8) TMI 922 - ITAT MUMBAI we find that provisions of Section 92C(1)of the Act mandates adoption of one of the prescribed method mentioned therein for determining the ALP of international transactions. It is not in dispute that the disallowances/adjustments made by the ld. TPO to ALP were made without following any of the prescribed methods as per law. We hold that once a reference is received by the ld. TPO u/s.92CA(1) of the Act from the ld. AO the ld. TPO is required to determine the ALP of the international transaction as per the provisions contained in Section 92C and 92CA read with relevant rules thereon. From the conjoint reading of the relevant sections and the relevant rules we find that the duty of the ld. TPO is restricted only to the determination of the arm s length price of an international transaction between two related parties by applying any of the methods prescribed u/s.92C read with rule 10B of the rules. Thus there is no provision made in the statute empowering ld. TPO for determining the ALP on a particular international transaction on an estimation basis / adhoc basis. Duty of the TPO is restricted only to the determination of the arm s length price of an international transaction between two related parties by applying any of the methods prescribed u/s.92C of the Act read with rule 10B of the rules. Thus there is no provision made in the statute empowering TPO for determining the ALP on a particular international transaction on an estimation basis / adhoc basis. As relying on M/S. JOHNSON JOHNSON LTD. 2017 (3) TMI 1520 - BOMBAY HIGH COURT we have no hesitation in directing the ld. TPO to delete adjustment made to ALP in respect of aforesaid three services viz. GIS services MSF Services and MNC Services. Accordingly grounds raised by the assessee are allowed on this technical aspect and grounds raised by the revenue are dismissed on this technical aspect.
Issues Involved:
1. Adherence to previous Tribunal rulings for AY 2010-11 to AY 2013-14. 2. Rejection of benchmarking analysis and adoption of the "Other Method". 3. Determination of Arm's Length Price (ALP) at NIL. 4. Questioning the commercial expediency of the services received. 5. Classification of services as shareholder/stewardship/duplicative/incidental/passive/on-call. 6. Non-application of prescribed methods under section 92C(1) of the Income Tax Act. 7. Consistency in DRP's rulings for previous years. Detailed Analysis: 1. Adherence to Previous Tribunal Rulings: The appellant argued that the Assessing Officer (AO) and Transfer Pricing Officer (TPO) did not follow the Tribunal's rulings in the appellant's own case for AY 2010-11 to AY 2013-14. The Tribunal noted that the issues in appeal were covered by coordinate bench decisions in favor of the assessee. However, these decisions were disregarded on the grounds that the sixth method for benchmarking had not been considered and the decisions of coordinate benches had been challenged in further appeal. 2. Rejection of Benchmarking Analysis and Adoption of the "Other Method": The TPO and AO, under the directions of the Dispute Resolution Panel (DRP), rejected the benchmarking analysis undertaken by the appellant using the "Other Method" and instead applied the "Need Evidence Benefit Test Method," which is not a prescribed method under section 92C(1) of the Act. The Tribunal noted that the TPO cannot be expected to accept the transactions of the assessee at face value when relevant details required for verification are not made available. 3. Determination of ALP at NIL: The TPO computed the ALP of the transactions at NIL, which the Tribunal found to be incorrect as it was done without following one of the prescribed methods under section 92C(1) of the Act. The Tribunal emphasized that the TPO is mandated by law to determine the ALP by following one of the methods prescribed in Section 92C of the Act read with Rule 10B of the Income Tax Rules. The Tribunal cited the case of CIT vs. Johnson & Johnson Limited, where it was held that the TPO's determination of ALP without adopting any prescribed method was arbitrary and ad-hoc. 4. Questioning the Commercial Expediency of the Services Received: The TPO questioned the commercial wisdom and expediency of the appellant for receiving Global Information Services (GIS), Management Service Fee (MSF), and Multinational Client Coordination (MNC) services. The Tribunal found that the TPO has the duty to examine the benchmarking exercise and adoption of the correct method for determining the ALP of international transactions, but cannot question the commercial expediency of the transactions. 5. Classification of Services: The TPO classified the services as shareholder/stewardship/duplicative/incidental/passive/on-call services without appreciating the underlying nature of the services. The Tribunal noted that the TPO has the duty to examine the benchmarking exercise but cannot classify the services without proper analysis. 6. Non-application of Prescribed Methods: The Tribunal found that the disallowances/adjustments made by the TPO to ALP were made without following any of the prescribed methods as per law. The Tribunal held that the TPO is required to determine the ALP of the international transaction as per the provisions contained in Section 92C and 92CA of the Act read with relevant rules thereon. 7. Consistency in DRP's Rulings: The Tribunal noted that the DRP is not bound by its own orders for earlier years if there is a variation in the surrounding circumstances or the facts of the case. The Tribunal also noted that the DRP's directions are of the nature of guidance to the AO to enable him to complete the assessment. Conclusion: The Tribunal allowed the appeal, upholding the plea of the assessee. The Tribunal directed the TPO to delete the adjustments made to ALP in respect of GIS, MSF, and MNC services, emphasizing that the TPO must follow one of the prescribed methods under section 92C(1) of the Act for determining the ALP of international transactions. The Tribunal's decision was consistent with previous rulings in the appellant's own case for AY 2010-11 to AY 2013-14.
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