2020 (6) TMI 101 - AT - Income Tax

TP Adjustment - Selection of MAM - Addition of local trading segment of the cosmetic products - TPO Rejected TNMM method adopted by assessee and proceeded to adopt Resale price Method - HELD THAT - As there is no change in the facts and circumstances of the case, the learned dispute resolution panel in assessee s own case for assessment year 14-15 2019 (4) TMI 1866 - ITAT DELHI has also rejected Modi care Limited as comparable and accepted the transactional net margin method as the most appropriate method, we respectfully following the decision of the coordinate bench direct learned TPO to adopt transactional net margin method as the most appropriate method and also not to take Modicare Ltd as the comparable. Thus, we have held that transactional net margin method is the most appropriate method, the TPO is directed to examine the international transactions entered into by the assessee applying that method and compare the margin of the assessee with the comparable companies selected by the assessee.

Summary

Issues Involved:
1. Validity of the order passed by the Assessing Officer (AO).
2. Transfer Pricing adjustment and arm's length price (ALP) determination.
3. Validity of the reference made by the AO to the Transfer Pricing Officer (TPO).
4. Selection of comparable companies for benchmarking.
5. Rejection of Transaction Net Margin Method (TNMM) by the TPO.
6. Computation of gross margins.
7. Use of unaudited data and rejection of Altos Enterprises Limited.
8. Selection of current year data for comparability.
9. Inconsistent approach in accepting the transfer pricing methodology.
10. Proportional adjustment for transfer pricing.
11. Economic adjustment for working capital differences.
12. Levy of interest under sections 234B and 234C of the Income Tax Act.

Detailed Analysis:

1. Validity of the Order Passed by the AO:
The assessee contested that the order passed by the AO was "bad in law and void ab-initio." This ground was dismissed as it was deemed general in nature.

2. Transfer Pricing Adjustment and ALP Determination:
The core issue revolved around the addition of INR 665,527,960 made by the AO/TPO by recomputing the ALP of the international transactions. The TPO adopted the Resale Price Method (RPM) instead of the TNMM used by the assessee. The TPO selected Modicare Ltd as the sole comparable, which was contested by the assessee.

3. Validity of the Reference Made by the AO to the TPO:
The assessee argued that the reference to the TPO was made without recording any reasons and without affording any opportunity to the assessee. This issue was not specifically adjudicated in detail in the judgment.

4. Selection of Comparable Companies for Benchmarking:
The TPO rejected all the comparables selected by the assessee and chose Modicare Ltd as the sole comparable. The assessee argued that Modicare Ltd was not comparable due to differences in product profile, functions, and risks assumed. The Tribunal agreed with the assessee, stating that Modicare Ltd had a diversified product portfolio and different accounting treatments, making it an inappropriate comparable.

5. Rejection of TNMM by the TPO:
The TPO's rejection of TNMM was based on the argument that it requires a high degree of similarity in functions. The Tribunal, however, held that TNMM is more tolerant to functional differences and directed the TPO to apply TNMM on the comparables selected by the assessee with suitable working capital adjustments.

6. Computation of Gross Margins:
The Tribunal noted significant differences in the accounting treatment of discounts/incentives between the assessee and Modicare Ltd, which affected the gross profit margins. The Tribunal found that these differences made it difficult to carry out accurate comparability adjustments.

7. Use of Unaudited Data and Rejection of Altos Enterprises Limited:
The assessee argued against the use of unaudited data and the rejection of Altos Enterprises Limited. This specific issue was not elaborated in the judgment.

8. Selection of Current Year Data for Comparability:
The Tribunal did not specifically address the issue of using current year data versus multiple year data for comparability in detail.

9. Inconsistent Approach in Accepting the Transfer Pricing Methodology:
The Tribunal acknowledged the inconsistency in the TPO's approach, noting that the same methodology was accepted in previous years. The Tribunal directed the TPO to adopt the TNMM as the most appropriate method.

10. Proportional Adjustment for Transfer Pricing:
The assessee argued that the adjustment should be restricted to the value of the international transaction under consideration. The Tribunal's direction to apply TNMM implicitly addressed this issue.

11. Economic Adjustment for Working Capital Differences:
The Tribunal directed the TPO to make suitable working capital adjustments while applying the TNMM.

12. Levy of Interest under Sections 234B and 234C:
This ground was dismissed as it was considered general in nature.

Conclusion:
The Tribunal directed the TPO to adopt the TNMM as the most appropriate method and not to consider Modicare Ltd as a comparable. The TPO was instructed to examine the international transactions using the comparables selected by the assessee with suitable working capital adjustments. The appeal was partly allowed, with specific directions for re-evaluation of the transfer pricing adjustments.