2017 (3) TMI 1032 - AT - Income Tax

TPA - selection of comparables - Held that - Lower authorities have erred in excluding assessee s two comparables namely M/s. IAI Industries and Victor Gaskets. As from the case file that the assessee as well as the above two entities do have the same NIC codes of 30913 indicating to be having broader comparability in automotive ancillary segment. These two entities profiles reveal them to be engaged in manufacturing activity of auto ancillary parts not disputed by the lower authorities. We accordingly quote assessee s TNMM method having hallmark of broader product similarity. This transfer pricing issue is accordingly remitted back to the file of Transfer Pricing Officer to pass afresh order as per law after including these two entities Correctness of Section 43B disallowance of Sales Tax payment - Held that - The assessee has sufficiently made its case to have paid in advance the sales tax sum in question in said earlier assessment years without claiming any deduction. It pleaded before the Assessing Officer that the Commissioner (appeals) concerned had declined its challenge to the impugned sales tax liability thereby crystallizing the same in the impugned assessment year making it to record necessary entry in P&L account. Learned Departmental Representative fails to dispute this factual position. We accordingly direct the Assessing Officer to delete the impugned disallowance. This ground is accepted.

Summary

Issues:
1. Transfer pricing adjustments under section 92CA(3) of the Income Tax Act, 1961
2. Compliance with Dispute Resolution Panel directions under section 144C(13) of the Act
3. Exclusion of comparable companies in transfer pricing analysis
4. Disallowance of management charges
5. Treatment of foreign exchange gain in computing margins
6. Use of multiple year data in transfer pricing analysis
7. Disallowance of sales tax payment under section 43B of the Act

Transfer pricing adjustments under section 92CA(3) of the Income Tax Act, 1961:
The appellant contested the upward adjustment made by the Assessing Officer under section 92CA(3) of the Act regarding international transactions. The Tribunal found that the Assessing Officer erred in excluding two comparable entities, M/s. IAI Industries and M/s. Victor Gaskets Ltd., from the analysis. These entities were deemed comparable based on their engagement in the auto ancillary segment, aligning with the appellant's manufacturing activities. The Tribunal directed the Transfer Pricing Officer to reconsider the adjustments by including these comparables, as per the TNMM method and relevant legal precedents.

Compliance with Dispute Resolution Panel directions under section 144C(13) of the Act:
The appellant raised concerns regarding the Assessing Officer's failure to adhere to the Dispute Resolution Panel's directions, as mandated by section 144C(13) of the Act. The Tribunal noted that the DRP's directions are binding on the Assessing Officer. The appellant withdrew some substantive grounds related to this issue, acknowledging the binding nature of the DRP's directives.

Exclusion of comparable companies in transfer pricing analysis:
The Tribunal addressed the exclusion of certain comparable companies by the Assessing Officer in the transfer pricing analysis. It was observed that the exclusion of M/s. IAI Industries and Victor Gaskets Ltd. was unjustified, as they were functionally similar to the appellant and engaged in auto ancillary manufacturing activities. The Tribunal directed the inclusion of these comparables for a fair assessment.

Disallowance of management charges:
The appellant contested the disallowance of management charges by the Assessing Officer. The Tribunal noted that the disallowance was made without proper justification and should not have been imposed based on the circumstances presented. However, the Tribunal did not delve deeper into this issue as it became irrelevant due to other findings.

Treatment of foreign exchange gain in computing margins:
The Assessing Officer treated foreign exchange gain as non-operating in nature when computing the appellant's margins from the manufacturing segment. The Tribunal did not provide a detailed analysis of this issue, but it was considered alongside other grounds raised by the appellant.

Use of multiple year data in transfer pricing analysis:
The appellant argued for the use of multiple year data in the transfer pricing analysis, as prescribed under Rule 10B(4) of the Act. The Tribunal did not provide a specific ruling on this issue, as it became moot following the decision to include additional comparables in the analysis.

Disallowance of sales tax payment under section 43B of the Act:
The Tribunal addressed the disallowance of sales tax payment under section 43B of the Act. The Assessing Officer disallowed the deduction based on advance payment in previous assessment years. However, the Tribunal found that the appellant had not claimed the deduction earlier and the liability crystallized in the impugned assessment year. Therefore, the disallowance was deemed incorrect, and the Tribunal directed the Assessing Officer to delete the disallowance.

In conclusion, the Tribunal partially allowed the appellant's appeal, primarily focusing on transfer pricing adjustments and the disallowance of sales tax payment, while addressing other issues raised during the proceedings.