2017 (9) TMI 646 - AT - Income Tax

TPA - selection of comparable - MAM - Held that - Purpose of the transfer pricing provision is first select the most appropriate comparable/ tested party and thereafter, by applying the most appropriate method to determine arm s length price(ALP). Considering, the fact that assessee has not raised the issue related with the selection of comparable as AE s either before the transfer pricing officer or before first appellate authority, and has raised the issue for the first time before the Tribunal by way of additional ground of appeal. Considering the material available on record and the factual and legal discussion as referred above, we admit the additional ground of appeal raised by assessee, and are inclined to restore this issue raised in the additional ground to the file of assessing officer/transfer pricing officer for examining issue afresh. The AO/TPO shall decide the issue after considering all the material available on record in accordance with the law. The assessing officer/transfer pricing officer shall decide the issue by calling the information and documents from the assessee as well as by making his own inquiry in the data base or otherwise. Needless to say that assessing officer/transfer pricing officer shall afford reasonable opportunity to the assessee before deciding the issue. The assessee is also directed to cooperate with the assessing officer/transfer pricing officer in providing all necessary information and documents and not to seek adjournment without any proper and valid reasons. With these observations the additional ground of appeal raised by assessee is allowed.

Issues Involved:
1. Assessment of total loss.
2. Transfer pricing adjustments.
3. Corporate tax adjustments.

Detailed Analysis:

Issue 1: Assessment of Total Loss
The primary issue was the discrepancy in the total loss assessed by the CIT(A) and the loss computed by the appellant. The CIT(A) assessed the total loss at ?3,46,71,778, whereas the appellant had computed a loss of ?10,65,20,488 in its return of income.

Issue 2: Transfer Pricing Adjustments
1. Rejection of Transfer Pricing Study: The appellant argued that the CIT(A) erred in rejecting the transfer pricing study without providing cogent reasons. The appellant had conducted a transfer pricing study based on contemporaneous data as per Rule 10D of the Income-tax Rules, 1962.

2. Violation of Rule 10D: The appellant contended that the CIT(A) violated Rule 10D by not considering the contemporaneous data available at the time of filing the Accountant's Report.

3. Conditions Under Section 92C(3): The CIT(A) stated that the conditions mentioned in clauses (a) to (d) of section 92C(3) of the Act were satisfied before determining an ALP different from that determined by the appellant.

4. Adjusted Profit Level Indicator (PLI): The CIT(A) rejected the adjusted PLI applied by the appellant for benchmarking international transactions related to the import of raw materials, packing materials, and semi-finished goods from associated enterprises (AEs).

5. Royalty Amount Adjustment: The CIT(A) did not compute the PLI of the appellant after increasing the profit by ?25,50,000, representing the royalty amount disallowed by the appellant in its return of income.

6. Impact on Gross Margins: The appellant argued that the international transactions of importing raw materials, packing materials, and semi-finished goods from AEs only impacted the gross margins, which were at arm's length.

7. Adjustment Calculation: The appellant contested the AO's method of calculating the adjustment with reference to the total purchases instead of considering only the purchases from AEs.

8. Margin Restriction: The appellant argued that the adjustment should be restricted to the margin charged/earned by the AE from the supply of raw materials, packing materials, and semi-finished goods.

Issue 3: Corporate Tax Adjustments
1. Disallowance of Interest: The CIT(A) disallowed interest of ?491 on delayed payment of withholding tax.

2. Short Grant of TDS Credit: The CIT(A) granted credit for TDS only to the extent of ?430,462, resulting in a short grant of credit for TDS amounting to ?188,566.

Tribunal's Decision:
1. Additional Grounds: The Tribunal admitted the additional grounds of appeal raised by the appellant, considering them purely legal in nature and based on facts available on record.

2. Tested Party: The Tribunal discussed the concept of the "tested party" as per OECD guidelines and concluded that the AE being the least complex entity should be considered as the tested party for benchmarking analysis.

3. Remand to AO/TPO: The Tribunal restored the issue of transfer pricing adjustments to the file of the AO/TPO for fresh examination. The AO/TPO was directed to decide the issue after considering all material on record and providing the appellant a reasonable opportunity to present its case.

4. Corporate Tax Adjustments: The Tribunal directed the AO to verify the facts related to the disallowance of interest and short grant of TDS credit and grant appropriate relief in accordance with the law.

5. Statistical Purpose: The grounds of appeal related to transfer pricing adjustments were allowed for statistical purposes, and the appellant was not entitled to claim a refund of tax until the AO/TPO passed the order on the issue.

Conclusion:
The appeal filed by the appellant was allowed for statistical purposes, with the Tribunal remanding the transfer pricing issues to the AO/TPO for fresh examination and directing the AO to verify the facts related to corporate tax adjustments. The Tribunal emphasized the importance of selecting the most appropriate comparable and method for determining the arm's length price in transfer pricing cases.

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