2020 (12) TMI 295 - AT - Income Tax

TP Adjustment - MAM selection - assessee had adopted Comparable Un-controlled Price method (CUP method) for arriving at the ALP on the ground that the A.E. had entered into similar transactions with unrelated parties in India, and, therefore, the internal CUP method is applicable and should be adopted - TPO rejected the CUP method adopted by the assessee and has adopted Transactional Net Margin Method (TNMM) as the most appropriate method (MAM) - HELD THAT - We find that there is no change in the nature of activity carried on by the assessee since A.Y. 2011-12 till the previous year relevant to the A.Y. before us. The modification of the agreements appears to be relating to the terms and conditions of payment. Assessee submitted that there is no change whatsoever with regard to transactions of the assessee with the A.E. and the transactions of the AE with other unrelated parties. If that is so, then, the CUP method has to be adopted. We deem it fit and proper to set aside the assessment order and direct the AO to refer the matter to the TPO with a direction to adopt CUP method if the nature of activity between the assessee and the A.E. and between the A.E. and the unrelated parties who are providing similar services to the A.E. is the same and if there is a difference in the nature of activity which would affect the determination of the ALP, then the TPO is free to examine and adopt the MAM in accordance with law after giving the ass a fair opportunity of hearing. Assessee's appeal is treated as allowed for statistical purposes.

Summary

Issues Involved:
1. Determination of the Most Appropriate Method (MAM) for Transfer Pricing.
2. Exclusion of depreciation on goodwill from operating cost.
3. Acceptance and rejection of comparable companies for benchmarking.
4. Treatment of outstanding receivables as a separate international transaction.
5. Denial of depreciation on goodwill.
6. Levy of interest on the assessed income.

Issue-wise Detailed Analysis:

1. Determination of the Most Appropriate Method (MAM) for Transfer Pricing:
The assessee company, engaged in providing IT-enabled services, adopted the Comparable Uncontrolled Price (CUP) method to determine the Arm's Length Price (ALP) for transactions with its Associated Enterprise (A.E.). The Transfer Pricing Officer (TPO) rejected the CUP method and adopted the Transactional Net Margin Method (TNMM) instead. The Dispute Resolution Panel (DRP) confirmed the TPO's approach. The Tribunal noted that for previous assessment years (2011-12 and 2012-13), it had directed the TPO to adopt the CUP method, which was accepted by the department. The Tribunal found no significant change in the nature of the transactions for the current assessment year and directed the AO to refer the matter back to the TPO to adopt the CUP method if the nature of transactions remained the same. If there were differences affecting the ALP determination, the TPO could adopt the MAM accordingly.

2. Exclusion of Depreciation on Goodwill from Operating Cost:
The assessee contended that the depreciation on goodwill should be excluded from the operating cost while computing the Profit Level Indicator (PLI). The Tribunal did not provide a detailed analysis on this issue but indicated that since the assessment was set aside, this issue should also be reconsidered by the AO in accordance with the law.

3. Acceptance and Rejection of Comparable Companies for Benchmarking:
The assessee objected to the inclusion of certain companies as comparables, arguing they were functionally dissimilar and had different economic circumstances. The Tribunal did not specifically address each comparable company but implied that the TPO should re-evaluate the comparables in light of the directions to reconsider the MAM.

4. Treatment of Outstanding Receivables as a Separate International Transaction:
The TPO treated outstanding receivables as a separate international transaction and proposed to levy interest on them. The Tribunal did not provide a detailed ruling on this issue but indicated that since the assessment was set aside, this issue should also be reconsidered by the AO.

5. Denial of Depreciation on Goodwill:
The assessee claimed depreciation on goodwill arising from a merger, which was denied by the AO. The Tribunal directed the AO to reconsider this issue in accordance with the law since the assessment was set aside.

6. Levy of Interest on the Assessed Income:
The Tribunal did not provide a detailed analysis on the levy of interest but indicated that the issue should be reconsidered by the AO as part of the reassessment process.

Conclusion:
The Tribunal set aside the assessment order and directed the AO to refer the matter back to the TPO with instructions to adopt the CUP method if the nature of transactions remained the same. The TPO was also given the discretion to adopt the MAM if there were differences affecting the ALP determination. The issues of depreciation on goodwill, acceptance and rejection of comparables, treatment of outstanding receivables, and levy of interest were also set aside for reconsideration by the AO. The assessee's appeal was allowed for statistical purposes.