2019 (10) TMI 1555 - AT - Income Tax

TP Adjustment - payment of development cost - enhancement of its income by ALP adjustment - Whether international transaction pertaining to payment of development cost does not satisfy the arm s length principle ? - HELD THAT - It is not in dispute that the assessee has claimed the payment of development cost of Rs.1.98 crores as not an international transaction. It is equally true that the TPO proceeded by treating the same as an international transaction and determined the ALP as nil and enhanced the income of the taxpayer by Rs.1.98 crores. In our considered view once the assessee has challenged the enhancement of its income by ALP adjustment, it was incumbent upon the CIT(A) to decide the appeal on merits of the case. We are of the considered view that CIT(A) ought not have dismissed the appeal. In the interest of justice and fair play we restore the entire issue to the files of the CIT(A). The CIT(A) is directed to decide the appeal afresh - Assessee appeal is treated as allowed for statistical purpose.

Summary

Issues Involved:
1. Validity of the CIT(A)'s order under section 250 of the Indian Income Tax Act.
2. Interpretation of Section 246 of the Act regarding the maintainability of the appeal.
3. Consideration of legal and factual submissions related to the adjustment made by the AO/TPO.
4. Arm’s length principle and disallowance of the payment of development cost.
5. Determination of the most appropriate method (MAM) and the arm’s length price (ALP) for the international transaction.

Detailed Analysis:

1. Validity of the CIT(A)'s Order under Section 250:
The appellant challenged the order passed by the CIT(A)-1, Gurgaon, dated 25.01.2016, arguing that it was "bad in law." The appellant contended that the CIT(A) erred in interpreting the provisions of Section 246, thereby holding the appeal as not maintainable. The Tribunal noted that the CIT(A) dismissed the appeal on the grounds that the adjustment made by the AO/TPO had a futuristic impact and did not pertain to the year under consideration.

2. Interpretation of Section 246 of the Act:
The CIT(A) dismissed the appeal, stating that the observations made by the AO were futuristic and did not pertain to the year under consideration. The CIT(A) referenced Section 246A of the Income Tax Act, which lists orders that are appealable, emphasizing that an order must have consequences such as assessed income, determined tax, computed loss, or assessed status to be appealable. The CIT(A) opined that allowing appeals against mere observations would lead to unnecessary litigation.

3. Consideration of Legal and Factual Submissions:
The appellant argued that the CIT(A) failed to consider the legal and factual submissions regarding the adjustment made by the AO/TPO, which would have a futuristic impact on the appellant's income. The Tribunal noted that the appellant had determined the ALP with proper documentation as per Section 92D of the Act and Rule 10D of the Rules, and that the TNMM was the most appropriate method for determining the ALP of the payment of development cost.

4. Arm’s Length Principle and Disallowance of Payment of Development Cost:
The AO/TPO disallowed the payment of development cost, holding that it did not satisfy the arm’s length principle. The TPO questioned the benchmarking of the payment, stating that the appellant failed to explain the basis of the transfer price and the 5% markup charged by the AE. The TPO concluded that no independent party would have made such a substantial payment under the given circumstances, and thus reduced the ALP of the transaction to NIL, enhancing the appellant's income by Rs. 1.98 crores.

5. Determination of the Most Appropriate Method (MAM) and ALP:
The appellant used the Transactional Net Margin Method (TNMM) as the MAM for benchmarking its international transactions, including the payment of development cost. The TPO rejected the appellant's economic analysis, stating that the comparability data used was not contemporaneous as required by Rule 10D(4). The TPO also noted that the appellant had not commenced commercial production during the year and projected income for the next three years to arrive at the OP/Sales ratio, which was inconsistent with the comparables' data.

Tribunal's Decision:
The Tribunal concluded that the CIT(A) should have decided the appeal on its merits, given that the appellant had challenged the enhancement of its income by the ALP adjustment. The Tribunal restored the issue to the CIT(A) for a fresh decision, directing the CIT(A) to consider the merits of the case and provide a reasonable opportunity of being heard to the appellant. The appeal was treated as allowed for statistical purposes. The order was pronounced in the open court on 14.10.2019.