2021 (3) TMI 980 - AT - Income Tax

TP Adjustment - Assessee applied Transactional Net Margin Method (TNMM) with Operating Profit/Operating Cost (OP/OC) as Profit Level Indicator (PLI) as the Most Appropriate Method (MAM) - adoption of TP analysis made by the Revenue Department in the earlier years - comparability - HELD THAT - CIT(A) under the garb of rule of consistency adopted the TP analysis made by the TPO and accepted by the ld. CIT(A) in taxpayer's own case for AY 2010-11 without examining the legality of the TP study conducted by the taxpayer finding its international transactions at arm's length and TP analysis of the TPO vide which he has adopted the internal comparables and proposed an adjustment of ₹ 1,39,87,736/-. This method of TP analysis is unheard of as every assessment year is required to be examined independently to reach the logical conclusion to determine the ALP of international transactions. Merely because of the fact that during the year under consideration, there is no change in the business model of the taxpayer and the services rendered are identical, there is no statutory mandate to adopt the TP analysis made by the Revenue Department in the earlier years in order to make the adjustment in the subsequent years. In these circumstances, we are of the considered view that passing such an order on the basis of conjectures and surmises is in contravention of the provisions contained in Rule 10B (2) of the Income-tax Rules, 1962. Consequently, impugned order passed by the ld. CIT(A) is set aside and file is remitted back to the ld. CIT(A) to decide afresh after providing an opportunity of being heard to the taxpayer. The appeal filed by the taxpayer is hereby allowed for statistical purposes.

Issues Involved:
1. Adjustment to the Arm's Length Price (ALP) of international transactions.
2. Use of comparables in Transfer Pricing (TP) analysis.
3. Risk adjustment under Rule 10B(1)(e).
4. Use of multiple year/prior years' data.
5. Charging of interest under sections 234B, 234C, and 234D.
6. Initiation of penalty proceedings under section 271(1)(c).

Issue-wise Detailed Analysis:

1. Adjustment to the Arm's Length Price (ALP) of international transactions:
The taxpayer, M/s. Intercontinental Hotels Group (India) Pvt. Ltd., challenged the addition of INR 1,09,13,894 made by the Assessing Officer (AO)/Transfer Pricing Officer (TPO) to the ALP of its international transactions for ancillary management support services provided to its Associated Enterprises (AEs). The TPO compared the taxpayer's net margin from its AE and non-AE segments, treating the non-AE margin of 22.17% as the arm's length margin, leading to an adjustment of INR 13,987,736.

2. Use of comparables in Transfer Pricing (TP) analysis:
The CIT(A) adopted the internal comparables selected by the TPO for the previous assessment year (AY 2010-11) without examining the legality of the TP analysis for the current year (AY 2011-12). The CIT(A) failed to consider that the services provided to AEs differed significantly from those provided to unrelated parties, both in nature and basis of charging. The Tribunal emphasized that each assessment year must be examined independently, and the CIT(A)'s reliance on previous year's comparables was not justified.

3. Risk adjustment under Rule 10B(1)(e):
The taxpayer argued that the CIT(A) erred in not allowing risk adjustment to account for differences in the risk profiles of the taxpayer and the comparable companies. The Tribunal did not specifically address this issue in detail but remitted the matter back to the CIT(A) for fresh consideration.

4. Use of multiple year/prior years' data:
The taxpayer contended that the CIT(A) disregarded its use of multiple year/prior years' data, which is in contravention of section 92C of the Act read with Rule 10B and Rule 10D(4). The Tribunal noted that the CIT(A) upheld the use of only current year data based on the TPO's analysis from the previous year without independent examination.

5. Charging of interest under sections 234B, 234C, and 234D:
The taxpayer challenged the AO's decision to charge interest under sections 234B, 234C, and 234D on the assessed income. The Tribunal did not specifically address this issue in detail but remitted the matter back to the CIT(A) for fresh consideration.

6. Initiation of penalty proceedings under section 271(1)(c):
The taxpayer argued against the initiation of penalty proceedings under section 271(1)(c) on the grounds that it was done mechanically and without adequate satisfaction. The Tribunal did not specifically address this issue in detail but remitted the matter back to the CIT(A) for fresh consideration.

Conclusion:
The Tribunal set aside the impugned order passed by the CIT(A) and remitted the file back to the CIT(A) for fresh adjudication, emphasizing the need for an independent examination of each assessment year. The Tribunal highlighted that adopting the TP analysis from previous years without independent verification is contrary to the provisions of Rule 10B(2) of the Income-tax Rules, 1962. The appeal filed by the taxpayer was allowed for statistical purposes.

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