2019 (6) TMI 238 - AT - Income Tax

TP Adjustment - arm s length price of international transaction by applying CUP as MAM - HELD THAT - Respectfully following assessee own case in 2018 (5) TMI 848 - ITAT DELHI , we also set aside this issue back to TPO/AO for fresh determination of the arm s length price of international transaction by applying CUP as most appropriate method. It is also directed that in case TPO finds that identical/similar comparables are not available under CUP, then he is free to apply any other appropriate method for determination of arm s length price of international transaction of management group cost. Addition on account of imputing interest on outstanding receivables - HELD THAT - It is observed that this Tribunal for assessment year 2011-12 has directed AO to adjudicate afresh considering agreed credit period allowable to Associated Enterprise by assessee. Respectfully following same, we direct AO to adjudicate this issue afresh on basis of documents/evidences filed by assessee. Assessee is directed to file agreement under which payment has to be received from AE against services provided by assessee. Upon analysis of such agreement, assessee shall submit evidences in respect of agreed allowable credit period for making payments by AE to assessee based upon which interest shall be computed.

Issues Involved:
1. Legality and correctness of the order passed by the AO/TPO/DRP.
2. Addition to the income on account of international transactions pertaining to R&D and management cost sharing.
3. Determination of the arm’s length price (ALP) for international transactions.
4. Imputation of interest on outstanding inter-company receivables.
5. Statements made by AO/DRP/TPO based on conjectures and presumptions.
6. Disregard of judicial pronouncements in undertaking TP adjustment.
7. Initiation of penalty proceedings under section 271(i)(c) of the Act.
8. Proposal to levy interest under section 234B and 234C of the Act.

Detailed Analysis:

1. Legality and Correctness of the Order:
The appellant argued that the order passed by the AO/TPO/DRP is "bad in law and erroneous." The Tribunal did not specifically adjudicate on this general ground, as it was deemed to be covered under the more specific issues raised.

2. Addition to Income on Account of R&D and Management Cost Sharing:
The AO made an addition of ?217,238,084 to the appellant's income, disputing the ALP of the appellant's international transactions related to R&D and management cost sharing. The Tribunal noted that similar issues had been set aside in earlier years for fresh determination. The Tribunal observed that the authorities had previously determined the ALP as "Nil" based on the premise that no services were obtained or that services were duplicative. The Tribunal referenced the Punjab & Haryana High Court's ruling in Knorr-Bremse India P. Ltd. vs. ACIT, which held that business decisions resulting in loss are not necessarily indicative of non-arm’s length transactions.

The Tribunal found that the appellant had indeed received services and that the "benefit test" applied by the authorities was not appropriate. The matter was remanded back to the AO/TPO to determine whether the payments were under a Cost Contribution Arrangement (CCA) or for intra-group services, following the Tribunal's directions in earlier years.

3. Determination of the Arm’s Length Price (ALP):
The Tribunal upheld the TPO's rejection of the aggregation approach adopted by the appellant, noting that the transactions did not meet the criteria for aggregation as laid down by the jurisdictional High Court. The Tribunal also upheld the use of the Comparable Uncontrolled Price (CUP) method as the most appropriate method for determining the ALP, but noted that the TPO had failed to bring on record any comparable uncontrolled instances. The Tribunal remanded the matter back to the AO/TPO for fresh determination of the ALP, allowing for the use of any other appropriate method if CUP data was unavailable.

4. Imputation of Interest on Outstanding Inter-Company Receivables:
The AO imputed an interest amount of ?120,412 on outstanding inter-company receivables, treating them as unsecured interest-free loans. The Tribunal referenced its earlier decision for AY 2011-12, where the issue was remanded for fresh examination. The Tribunal directed the AO to reconsider the issue based on the agreed credit period allowable to the Associated Enterprise and to compute interest accordingly.

5. Statements Based on Conjectures and Presumptions:
The appellant contended that various statements made by the AO/DRP/TPO were based on conjectures and presumptions. This issue was not separately adjudicated, as it was considered to be part of the broader issues related to the determination of ALP and the addition to income.

6. Disregard of Judicial Pronouncements:
The appellant argued that the AO/DRP/TPO disregarded judicial pronouncements in undertaking the TP adjustment. The Tribunal did not separately adjudicate this issue, as it was covered under the specific issues related to the determination of ALP and the addition to income.

7. Penalty Proceedings under Section 271(i)(c):
The appellant argued against the initiation of penalty proceedings for concealment and furnishing inaccurate particulars of income. The Tribunal noted that this issue was premature at this stage and did not require adjudication.

8. Proposal to Levy Interest under Section 234B and 234C:
The appellant contested the proposal to levy interest under sections 234B and 234C. The Tribunal noted that this issue was consequential and did not require separate adjudication.

Conclusion:
The appeal was allowed for statistical purposes, with the Tribunal remanding key issues back to the AO/TPO for fresh determination based on the guidelines provided. The Tribunal emphasized the need for proper application of the CUP method and consideration of relevant agreements and evidence in determining the ALP and imputing interest on outstanding receivables.

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