2020 (3) TMI 1191 - AT - Income Tax

TP Adjustment - Technical know-how fees paid by Appellant to its Associated Enterprise - HELD THAT - From the aforesaid decision of Tribunal in AY 2013-14 2019 (9) TMI 1342 - ITAT, MUMBAI we find that TPO determined the ALP of international transaction, without resorting to the method prescribed in the Act, which has been set aside by the Tribunal. We have further noted that in AY 2013-14 the ld. DR for the revenue also made prayed to restore the issue to the file of TPO for fresh determination of ALP; the same was not accepted by the coordinate bench, in the earlier. For the year under consideration (AY 204-15), we notice that TPO has applied Benefit Test which is not as per the rules prescribed under Rule 10B 10AB of Income Tax Rules. In our view, the payment of Technical knowhow was never bench marked in the earlier AYs. Considering the totality of the facts and circumstances and the fundamental question that revenue should not be deprived of legitimate tax due to the exchequer. Therefore, in order to bench mark this transaction and to determine proper ALP, of the international transaction, we are inclined to remit this issue back to TPO/AO to determine the ALP afresh as per Rule 10B 10AB of the I.T. Rules. Needless to order that before making fresh bench marking in accordance with Rule 10AB 10B read with section 92C, the TPO/ AO shall provide opportunity of hearing to the assessee. Accordingly, the Ground No 1 of the appeal is allowed for statistical purpose.

Summary

Issues Involved:
1. Transfer Pricing adjustment in respect of Technical know-how fees.
2. Incorrect imputation of mark-up on recovery of expenses.
3. Incorrect rejection of a comparable company.
4. Use of single year data for margin computation.

Detailed Analysis:

1. Transfer Pricing Adjustment in respect of Technical Know-how Fees:
The primary issue revolves around the Transfer Pricing adjustment concerning the technical know-how fees of INR 11,02,52,900 paid by the assessee to its Associated Enterprise (AE). The Transfer Pricing Officer (TPO) and Assessing Officer (AO) determined the arm's length price (ALP) of the technical know-how fees as 'NIL', which was affirmed by the Dispute Resolution Panel (DRP). The assessee argued that the ALP computation followed the Transactional Net Margin Method (TNMM) as prescribed under Section 92C of the Income-tax Act, 1961, and Rule 10B of the Income-tax Rules, 1962. The TPO rejected the comparables provided by the assessee and concluded that the assessee failed to substantiate the benefit received from the technical know-how fees, determining the ALP as NIL. The Tribunal noted that the TPO did not follow the prescribed methods under Section 92C read with Rules 10B and remitted the issue back to the TPO/AO to determine the ALP afresh as per the rules, providing an opportunity of hearing to the assessee.

2. Incorrect Imputation of Mark-up on Recovery of Expenses:
The second issue pertains to the incorrect imputation of a mark-up on the recovery of expenses by the assessee from its AE. The assessee decided not to press this ground due to the low tax effect. The Tribunal dismissed this ground as not pressed, noting that it should not be considered as an admission by the assessee for other assessment years.

3. Incorrect Rejection of a Comparable Company:
The third issue involves the incorrect rejection of a comparable company, Patel Integrated Logistics Limited (Segmental), selected by the assessee in its transfer pricing study report. Similar to the second issue, the assessee chose not to press this ground due to the low tax effect, and the Tribunal dismissed it as not pressed, with the same caveat regarding other assessment years.

4. Use of Single Year Data for Margin Computation:
The fourth issue concerns the use of single-year data for margin computation. The assessee objected to the approach adopted by the TPO/AO and DRP. However, like the previous two grounds, the assessee did not press this issue due to the low tax effect, and the Tribunal dismissed it as not pressed, maintaining the same condition for other assessment years.

Conclusion:
The Tribunal allowed the appeal of the assessee partly for statistical purposes, specifically remitting the issue of transfer pricing adjustment in respect of technical know-how fees back to the TPO/AO for fresh determination of the ALP as per the prescribed rules, ensuring an opportunity of hearing for the assessee. The other grounds were dismissed as not pressed due to the low tax effect, with a note that this should not be considered as an admission for other assessment years.