2016 (8) TMI 1002 - AT - Income Tax

Transfer pricing adjustment - Held that - When an Assessing Officer holds that no services are rendered by the AE, essentially he holds that the payments made in the international transaction in question are not arm s length payments. The ascertainment of ALP by the TPO is not a theoretical exercise inasmuch as the ALP determination is for the actual transaction and not a hypothetical transaction envisaged by the contractual arrangement. It cannot, therefore, be open for the Assessing Officer to say that even though transaction value is held to be an at ALP by the TPO, the ALP can be reduced on account of actual rendition, or non-rendition, of services. Once an international transaction is reported by the assessee, and held to be an ALP by the TPO, it cannot be open to the Assessing Officer to make the ALP adjustment, in the garb of disallowance under section 37(1), on the basis of assumption that the services are not rendered. That is clearly contrary to the scheme of the Act and would result in overlapping jurisdictions. As our day to day experience shows, the TPOs not only examine what is stated in the contract but also what has happened on the ground. In view of these discussions, and for the short reason that the payments for international transactions in question, i.e. payment of technical services fee to the AEs, have been held to be at ALP by the Transfer Pricing Officer, the impugned disallowances were wholly unsustainable in law. In any case, we have perused the nature of evidences for the rendition of services and we are satisfied that it is not a case in which services are not rendered by the AE. - Decided in favour of assessee

Issues Involved:
1. Condonation of delay in filing the appeal by the Assessing Officer.
2. Disallowance of technical fees paid by the assessee to YKK Holding Asia Pte Ltd.

Detailed Analysis:

1. Condonation of Delay in Filing the Appeal by the Assessing Officer:
The Assessing Officer filed an appeal on 18th January 2016 against the order dated 25th February 2008, resulting in a delay of 7 years and 238 days. The Departmental Representative justified this delay by stating that the relevant papers were misplaced and the delay was bona fide. The Principal Commissioner of Income Tax, Delhi IX, New Delhi, submitted a petition on 15th January 2016, explaining that the delay was discovered when it was noted that the issue of disallowance of technical fees was contested for the assessment year 2004-05 but not for 2003-04. The petitioner argued that not contesting the disallowance for 2003-04 could prejudice subsequent years' cases and requested the court to allow refiling the appeal for 2003-04.

The assessee’s counsel opposed the condonation petition, arguing that the delay was not justified and was based on hypothetical possibilities rather than concrete reasons. The counsel contended that the delay was a result of a belated realization of the consequences of not filing the appeal, which is not a sufficient cause for condonation.

The tribunal, after considering the arguments, rejected the condonation petition. The tribunal noted that there was no evidence to show that the appeal was intended to be filed earlier but was delayed due to other factors. The tribunal emphasized that the cause of delay must be known and reasonable, which was not demonstrated in this case. Consequently, the appeal was dismissed as time-barred. On merits, the tribunal also found that the Assessing Officer’s grievance regarding the deletion of the addition of ?31,82,614 on account of payment of technical fees was ill-conceived, as there is no bar on deductions for payments made to wholly-owned subsidiaries.

2. Disallowance of Technical Fees Paid by the Assessee to YKK Holding Asia Pte Ltd:
The assessee appealed against the disallowance of technical fees amounting to ?60,89,599 paid to YKK Holding Asia Pte Ltd. The Assessing Officer had disallowed these payments on the grounds that the services claimed to be rendered by YKK Holding Asia Pte Ltd were covered under the royalty agreement with YKK Corporation Japan and that the payments were essentially a diversion of income.

The CIT(A) upheld the disallowance, noting that the documents provided by the assessee did not substantiate the actual rendition of services by YKK Holding Asia Pte Ltd. The CIT(A) also observed that the payments for sales support and administrative costs were not justified as the assessee's marketing strategy did not require such payments.

The tribunal, however, found merit in the assessee’s grievance. It noted that the payments made to the associated enterprise were covered by the international transactions reported by the assessee and accepted by the Transfer Pricing Officer (TPO) as arm’s length payments. The tribunal held that the Assessing Officer could not disregard the TPO’s determination and make disallowances under section 37(1) based on the assumption that services were not rendered. The tribunal emphasized that once the TPO has determined the arm’s length price, the Assessing Officer is bound to accept it. Consequently, the tribunal concluded that the disallowances were unsustainable in law and allowed the assessee’s appeal.

Conclusion:
In conclusion, the tribunal dismissed the revenue’s appeal as time-barred and allowed the assessee’s appeal, holding that the disallowances of technical fees were unsustainable in law. The decision was pronounced in the open court on 25th July 2016.

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