2017 (11) TMI 1551 - AT - Income Tax

Assessment order u/s. 143(3) wherein TP adjustments been made by the AO without referring the matter to TPO - Held that - AO did not made any reference to TPO which is a mandatory requirement, however while making additions, the AO has drawn references from TPO order for AY 2007-08 for making TP additions . During first appellate stage, the assessee conceded that the ground challenging the framing of assessment without taking recourse to prescribed procedure as is raised before learned CIT(A) is general in nature which should be dismissed. The learned CIT(A) dismissed this ground on the prayer of the assessee. Under the similar circumstances in the case of Carrier Race Technologies P. Ltd.(2015 (12) TMI 837 - MADRAS HIGH COURT) has restored the matter back to the file of the A.O for denovo determination of the issue s on merits . Before us both the parties have conceded that the matter in the instance case also need to be restored back to the file of the A.O for denovo determination - Decided in favour of assessee for statistical purposes.

Summary

Issues:
1. Erroneous upward adjustment of arm's length price
2. Adjustment to entire business instead of international transactions only
3. Erroneous comparability analysis
4. Non-referral to Transfer Pricing Officer (TPO) by the Assessing Officer (AO)

Issue 1: Erroneous upward adjustment of arm's length price
The appeal was filed against the appellate order upholding an upward adjustment of INR 132,882,442 to the arm's length price determined by the appellant. The appellant argued that the adjustment was bad in law and erred in applying the Transactional Net Margin Method (TNMM) for international transactions with associated enterprises (AEs). The contention was that the adjustment should have been limited to international transactions only, not the entire turnover. The appellant also challenged the comparability analysis, citing errors in disregarding specified factors under rule 10B(2) of the Income Tax Rules, 1962, and selecting comparables with high related party transactions. The appellant sought a fresh determination of the issue on merits.

Issue 2: Adjustment to entire business instead of international transactions only
The appellant contested the AO's decision to adjust the entire turnover instead of limiting it to the value of international transactions. It was argued that the adjustment beyond the value of international transactions was not authorized under Chapter X, which empowers the Transfer Pricing Officer to determine arm's length prices for international transactions only. The appellant emphasized the need for a correct application of the law in determining adjustments related to international transactions with AEs.

Issue 3: Erroneous comparability analysis
The appellant raised concerns about the comparability analysis conducted by the AO and CIT(A), highlighting the failure to consider factors specified under rule 10B(2) and the selection of comparables with high related party transactions. Additionally, the appellant criticized the lack of adjustment for capacity utilization in line with OECD norms. The appellant argued for a proper evaluation of comparability factors and adherence to international standards for determining arm's length prices.

Issue 4: Non-referral to Transfer Pricing Officer (TPO) by the Assessing Officer (AO)
The AO made Transfer Pricing adjustments without referring the matter to the TPO, as mandated by law. The appellant contended that this procedural error undermined the validity of the assessment order. Both parties agreed that the matter should be remanded back to the AO for a fresh determination of the issues, including making a reference to the TPO for the arm's length price determination of transactions with AEs. The Tribunal concurred with the parties' submissions and ordered the matter to be set aside for denovo determination in accordance with the law.

In summary, the judgment addressed various issues related to Transfer Pricing adjustments, including errors in the adjustment methodology, comparability analysis, and the failure to refer the matter to the TPO. The Tribunal allowed the appeal for statistical purposes and remanded the case back to the AO for a fresh determination of the issues, emphasizing the need for adherence to procedural requirements and principles of natural justice.