2016 (11) TMI 383 - AT - Income Tax

Transfer pricing adjustment - TPO while passing the transfer pricing order has applied entity level benchmark - Held that - DRP has followed the Tribunal s order in assessee s own case for the AY 2006-07 and 2008-09 while granting the relief, wherein, it has been directed that TPO should consider the segmental evidence submitted by the assessee. Since the operating margin is based on audited segmental financials submitted by the assessee, wherein, the assessee has earned and shown profit margin at 7.81% as against margin earned by the comparable companies of 8.3% as computed by the TPO himself in pursuance of DRP s direction which falls within the Arm s length price range of 5%. In any case, also even if entity level margins of 6.47% and the margin earned by the comparable companies at 8.3% (as per the DRP s direction) is taken into consideration, the ld counsel before us has pointed out that, then also it falls within the variation of /- 5%.

Summary

Issues:
Appeal against DRP's direction under section 144C(5) for final assessment order under section 143(3) r.w.s. 144C(13) - Transfer Pricing Adjustment Dispute.

Analysis:
1. The appeal and cross objection were filed against DRP's direction and final assessment order. The revenue challenged the deletion of an adjustment made by the Transfer Pricing Officer (TPO) related to international transactions. The TPO computed the margin at entity level, while the assessee used a segmental approach. The DRP directed the TPO to consider segmental financials submitted by the assessee based on past ITAT orders. The revenue's appeal was found to be factually incorrect as the TPO's entity level benchmark was not upheld. The operating margin based on segmental financials fell within the arm's length range, leading to the dismissal of the revenue's appeal.

2. The assessee's cross objections addressed the TPO's use of entity level results instead of segmental results for determining the arm's length price. The DRP's direction to consider segmental margins was upheld. The cross objections also challenged the computation of segmental margins of comparable companies. However, since the revenue's appeal was dismissed due to incorrect grounds, the issues raised in the cross objections were deemed academic and treated as in fructuous.

3. The Tribunal held that the revenue's appeal and the assessee's cross objections were to be dismissed based on the findings that the revenue's grounds were factually incorrect and the segmental results should be considered for benchmarking, following past ITAT orders. Consequently, the issues raised in the cross objections became academic, leading to the dismissal of both the revenue's appeal and the cross objections of the assessee.