2014 (11) TMI 1275 - AT - Income Tax

TP Adjustment - ALP determination of international transaction - allocation of expenses - segment wise account rejected as assessee did not maintain segmental accounts contemporaneously - HELD THAT - In our opinion the segment wise account submitted by the assessee could not be rejected unless any defect was pointed out in the segmental results shown by the assessee. Moreover, the activities relating to both these transactions are different activities as is observed from the functional analysis described in the above part of this order as one transaction is relating to communication network operation and engineering services and other transaction relates to provision of finance and accounts services, therefore, these transactions are to be evaluated separately for determination of ALP. If the claim of the assessee is to be rejected then Revenue Authorities are bound to explain that why such claim of the assessee is required to be rejected. No such reason has been given except stating that either the segmental results are unaudited or they have been prepared later on or for the purpose of TP study. Taking into account these facts and submissions which are supported by the case laws relied upon by Ld. AR, we are of the opinion that it would meet the interest of justice if the matter is restored back to the file of AO/TPO with a direction to re-determine the ALP of these international transaction separately after verifying the segmental results of the assessee. Needless to observe that in the whole process of re-determination of ALP with regard to impugned transactions, the assessee will be provided with reasonable opportunity of hearing and placing evidence on record to support its case. After re-determination of ALP of the impugned international transaction in the manner described above, Ld. AO/TPO will give appropriate relief as per proviso to section 92C(2) as it is applicable for the year under consideration after giving the assessee a reasonable opportunity of hearing.

Summary

Issues Involved:
1. Upward transfer pricing adjustment.
2. Granting the benefit of +/- 5% range as per proviso to Section 92C(2) of the Act.
3. Granting Minimum Alternate Tax credit u/s 115JAA of the Act.
4. Granting credit of Rs. 41,112/- recovered in the intimation u/s. 143(1) of the Act for Assessment Year 2010-11.
5. Levying interest of Rs. 13,964/- u/s 220(2) of the Act.
6. Computing interest u/s 234B and 234C of the Act.

Detailed Analysis:

Issue 1: Upward Transfer Pricing Adjustment
The assessee contended against an upward transfer pricing adjustment of Rs. 9.91,21,202/- for telecommunication network management services and finance and accounting services rendered to its Associated Enterprise (AE). The primary contentions included:
- Disregarding the internal comparability analysis (Internal TNMM).
- Disregarding the segmental financials based on conjectures.
- Considering operating margin at the entity level instead of from international transactions.
- Disregarding the functional analysis and considering all business activities as ITES.
- Adopting an entity-level approach yielding absurd results.
- Disregarding contemporaneous transfer pricing documentation.
- Using current year's financial data for benchmarking.
- Denying working capital adjustment and other economic adjustments.

The Tribunal noted that the TPO did not accept the internal comparability analysis and segmental results provided by the assessee, citing unaudited segmental accounts and unverifiable allocation of indirect expenses. The TPO adopted an entity-level approach and selected 21 comparables, arriving at an arithmetic mean of 28.57%, resulting in a TP adjustment of Rs. 12,76,01,546/-.

The DRP upheld the TPO's decision but provided some relief, reducing the adjustment to Rs. 9,91,21,202/-. The Tribunal observed that the segmental accounts submitted by the assessee were rejected without pointing out specific defects. The Tribunal directed the AO/TPO to re-determine the ALP of the international transactions separately after verifying the segmental results, ensuring reasonable opportunity for the assessee to present evidence.

Issue 2: Benefit of +/- 5% Range
The Tribunal directed the AO/TPO to grant appropriate relief as per the proviso to Section 92C(2) after re-determining the ALP of the impugned international transactions. This ground was allowed for statistical purposes.

Issue 3: Granting Minimum Alternate Tax Credit u/s 115JAA
The Tribunal noted that the AO and CIT(A) had not specifically discussed this issue. The assessee was advised to seek relief by filing an application for rectification of mistakes before the AO, who would provide the required relief as per statutory provisions. This ground became infructuous.

Issue 4: Granting Credit of Rs. 41,112/- Recovered in Intimation u/s 143(1)
Similar to Issue 3, the Tribunal advised the assessee to seek relief through an application for rectification of mistakes before the AO. This ground also became infructuous.

Issue 5: Levying Interest of Rs. 13,964/- u/s 220(2)
The Tribunal advised the same course of action as Issues 3 and 4, making this ground infructuous.

Issue 6: Computing Interest u/s 234B and 234C
The Tribunal again advised the same course of action as the previous issues, rendering this ground infructuous.

Conclusion:
The appeal was partly allowed for statistical purposes, with directions to the AO/TPO to re-determine the ALP of the international transactions separately after verifying the segmental results and providing reasonable opportunity for the assessee to present evidence. Issues related to tax credits and interest computations were advised to be resolved through applications for rectification before the AO.