2017 (10) TMI 1086 - AT - Income Tax

TPA - determination of the ALP under the CUP method or TNMM - international transaction - Held that - Sub-clause (i) deals with the computation of the net operating profit margin realised by the enterprise from an international transaction in relation to costs incurred or sales effected or assets employed or to be employed by the enterprise or having regard to any other relevant base. Sub-clause (ii) provides that the net operating profit margin realised by a comparable uncontrolled transaction should be computed having regard to the same base as that taken in sub-clause (i) for the assessee. In the formula for calculating the profit margin under rule 10B(1)(e) under sub-clauses (i) and (ii), there can be any denominator, such as, costs incurred or sales effected or assets employed or to be employed. However, the numerator is uniform, which is, net operating margin. In fact, the numerator is operating profit and not the net profit . Whereas, operating profit is the excess of operating revenue over the operating costs, net profit is the excess of revenue over all costs, both operating and non-operating. Coming back to the decision of the TPO, it is found that he proceeded to compute the ALP by considering that one Mr. Paul Solgan, the Executive Vice President, was seconded to the assessee in another year. His cost per day was worked out. 120% and 80% of such cost was attributed as the cost per day of Sr. VP and Assistant VP to work out the total cost at ₹ 1,54,60,875, which was increased by the arm s length margin of comparables at 12.89% for determining the arm s length price at ₹ 1,74,53,782/-. As the assessee actually paid a sum of ₹ 3,76,54,642/-, the TPO proposed transfer pricing adjustment of ₹ 2,02,00,860/-. It is obvious that the methodology adopted by the TPO for determining under the TNMM does not conform to the method prescribed under rule 10B(1)(e) and hence cannot be approved. We are confronted with a situation in which the action of the CIT(A) in deleting the transfer pricing addition cannot be upheld and equally the view of the TPO in applying the TNMM also cannot be approved for the reasons assigned supra, albeit his exercise of rejecting the assessee s determination of ALP is correct. Under such circumstances, we are of the considered opinion that the ends of justice would adequately meet if, the impugned order is set aside and matter is restored to the file of the AO/TPO with a direction to determine the ALP of the international transaction afresh as per law after allowing a reasonable opportunity of being heard to the assessee.

Issues Involved:
1. Deletion of addition on account of transfer pricing adjustment.
2. Determination of the most appropriate method for computing Arm’s Length Price (ALP).
3. Applicability of Section 92 in the context of Section 44 of the Income-tax Act, 1961.
4. Whether the services received were consultancy services or secondment of employees.
5. Validity of the Transfer Pricing Officer's (TPO) methodology in determining ALP.

Detailed Analysis:

1. Deletion of Addition on Account of Transfer Pricing Adjustment:
The Revenue challenged the deletion of an addition of ?2,02,00,860/- made by the Assessing Officer (AO) on account of transfer pricing adjustment. The CIT(A) had deleted this addition, concluding that the payments made by the assessee for short-term consultancy were at arm’s length price (ALP) as substantiated by the Comparable Uncontrolled Price (CUP) method.

2. Determination of the Most Appropriate Method for Computing ALP:
The assessee used the CUP method to demonstrate that the international transaction was at ALP. The TPO rejected the CUP method, arguing that the consulting firms' rates cited were quotations and not actual rates. The TPO instead applied the Transactional Net Margin Method (TNMM) and computed the ALP, leading to the proposed transfer pricing adjustment. The CIT(A) held that the CUP was the most appropriate method, but the Tribunal found that the CIT(A) failed to deal with all the points raised by the TPO and that the companies chosen by the assessee were not comparable under the CUP method.

3. Applicability of Section 92 in the Context of Section 44 of the Income-tax Act, 1961:
The assessee argued that the provisions of Section 92 for determining the ALP could not be invoked as the income was computed under Section 44 read with the First Schedule, which applies to insurance businesses. The Tribunal held that Section 44 substitutes the first computation of income but does not affect the second computation of ALP under Section 92. The Tribunal concluded that Section 92 applies to an assessee carrying on insurance business, requiring a two-staged computation of income.

4. Whether the Services Received Were Consultancy Services or Secondment of Employees:
The CIT(A) concluded that the services received were consultancy services, not secondment of employees. However, the Tribunal found that the agreement indicated that NYLI assigned personnel to perform services related to devising training programs, which was more of the nature of short-term assignment of employees rather than consultancy services. The Tribunal noted that NYLI is not a consulting company but is engaged in selling insurance products.

5. Validity of the TPO's Methodology in Determining ALP:
The TPO computed the ALP under the TNMM by considering the cost per day of an employee seconded to the assessee and applying an arm’s length margin. The Tribunal found that the TPO's methodology did not conform to the prescribed method under Rule 10B(1)(e) and hence could not be approved. The Tribunal directed the AO/TPO to determine the ALP afresh as per law.

Conclusion:
The Tribunal set aside the order of the CIT(A) and restored the matter to the AO/TPO for a fresh determination of the ALP of the international transaction, ensuring compliance with the prescribed legal methods and providing a reasonable opportunity of being heard to the assessee. The appeal was allowed for statistical purposes.

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