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2018 (8) TMI 1624 - AT - Income TaxDetermination of Arm s Length Price - TPA - comparable selection - inclusion of Aegis in the final set of comparables - Held that - A perusal of the functional profile of the assessee company and on a comparison of the same with the profile of Aegis Logistics Ltd., it is clear that they are different. The assesee is engaged mainly in vessel handling, stevedoring cargo handling, clearing forwarding and other port related activities whereas Aegis Logistics Ltd. is primarily engaged in providing liquid logistics outside the port area, up to the destination through pipelines. Whether the company Malabar should be excluded from the final list of comparables - Held that - Malabar cannot be taken as a comparable in the final list of comparables for the reasons that the turnover in question is not comparable. The margins of this company is far in excess of the margins of its holding company M/s. Aspinwall Ltd. which is also taken as a comparable by both the assessee as well as the revenue. Hence we direct that this comparable should be excluded from the final list of comparables. The TPO could not have included this company as a comparable, without investigating the reasons for Malabar declaring abnormal profits at 42.33%, as compared to all other comparables including its holding company. - decided in favour of assessee.
Issues Involved:
1. Initiation of proceedings under Section 153A. 2. Jurisdiction and legality of the assessment order under Section 143(3) read with Section 92CA(4), 144C(13), and 153A. 3. Transfer pricing adjustment of ?5,01,37,172. 4. Timeliness of the draft assessment order under Section 153B. 5. Timeliness and legality of the Transfer Pricing Officer’s (TPO) order under Section 92CA(3A) read with Section 153B. 6. Reference to the TPO under Section 92CA(1) and principles of natural justice. 7. Rejection of the transfer pricing study and related filters and comparables. 8. Inclusion of Aegis Logistics Ltd. in the final set of comparables. 9. Inclusion of Om Logistics Ltd. in the final set of comparables. 10. Inclusion of Aqua Logistics Ltd. twice in the final set of comparables. 11. Incorrect computation of profit level indicator (PLI). 12. Correct PLI within the arm's length range. 13. Disallowance of 25% of dock labor charges. 14. Disallowance of speed money. 15. Depreciation rate on Tata & JCB Loaders. 16. Levy of interest under Section 234B. 17. Initiation of penalty proceedings under Section 274 read with Section 271. Detailed Analysis: 1. Initiation of Proceedings under Section 153A: The assessee argued that the proceedings initiated under Section 153A were time-barred. However, this ground was not pressed during the hearing and hence dismissed as not pressed. 2. Jurisdiction and Legality of Assessment Order: The assessee contended that the assessment order passed under the directions of the Dispute Resolution Panel (DRP) under Section 143(3) read with Sections 92CA(4), 144C(13), and 153A was without appropriate jurisdiction and bad in law. This ground was also not argued or contested during the hearing and was dismissed as not pressed. 3. Transfer Pricing Adjustment of ?5,01,37,172: The assessee contested the transfer pricing adjustment made by the TPO. The primary issue argued was the determination of the Arm's Length Price (ALP) and the inclusion of certain comparables. 4. Timeliness of Draft Assessment Order under Section 153B: The assessee claimed that the draft assessment order was beyond the time limit prescribed under Section 153B and thus time-barred. This ground was not pressed and hence dismissed as not pressed. 5. Timeliness and Legality of TPO’s Order under Section 92CA(3A) read with Section 153B: The assessee argued that the TPO’s order was time-barred and contrary to the provisions of Section 92CA(3A) read with Section 153B. This ground was not pressed and hence dismissed as not pressed. 6. Reference to TPO under Section 92CA(1) and Principles of Natural Justice: The assessee contended that the reference to the TPO was mechanical and violated the principles of natural justice. This ground was not pressed and hence dismissed as not pressed. 7. Rejection of Transfer Pricing Study and Related Filters and Comparables: The assessee argued against the rejection of its transfer pricing study and the application of various filters and comparables by the TPO. This ground was not pressed and hence dismissed as not pressed. 8. Inclusion of Aegis Logistics Ltd. in the Final Set of Comparables: The assessee argued that Aegis Logistics Ltd. was not functionally comparable. The Tribunal agreed, noting significant differences in the functional profiles and directed the exclusion of Aegis Logistics Ltd. from the final list of comparables. 9. Inclusion of Om Logistics Ltd. in the Final Set of Comparables: This issue was not pressed during the hearing and hence dismissed as not pressed. 10. Inclusion of Aqua Logistics Ltd. Twice in the Final Set of Comparables: This issue was not pressed during the hearing and hence dismissed as not pressed. 11. Incorrect Computation of Profit Level Indicator (PLI): The assessee argued that the PLI was incorrectly computed. The Tribunal restored the issue to the Assessing Officer for verification and correct computation. 12. Correct PLI within the Arm's Length Range: The assessee claimed that the correct PLI was within the arm's length range. This issue was linked to the incorrect computation of PLI and was addressed by restoring the matter to the Assessing Officer. 13. Disallowance of 25% of Dock Labor Charges: The assessee contested the disallowance of 25% of dock labor charges. This ground was not pressed and hence dismissed as not pressed. 14. Disallowance of Speed Money: The assessee contested the disallowance of speed money. This ground was not pressed and hence dismissed as not pressed. 15. Depreciation Rate on Tata & JCB Loaders: The assessee argued for a higher depreciation rate on Tata & JCB Loaders. This ground was not pressed and hence dismissed as not pressed. 16. Levy of Interest under Section 234B: The assessee contested the levy of interest under Section 234B. This ground was not pressed and hence dismissed as not pressed. 17. Initiation of Penalty Proceedings under Section 274 read with Section 271: The assessee contested the initiation of penalty proceedings. This ground was not pressed and hence dismissed as not pressed. Conclusion: The appeals were partly allowed with directions to exclude Aegis Logistics Ltd. and Malabar Coast Marine Services Pvt. Ltd. from the final list of comparables and to recompute the ALP accordingly. All other grounds, both technical and otherwise, were dismissed as not pressed.
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