2022 (9) TMI 761 - AT - Income Tax

CIT jurisdiction u/s 250(4) for direction of verification by Ld. AO. - TP adjustment on account of trade receivables - First Appellate Authority had directed AO/ TPO to verify the claim of the appellant that interest is not charged on outstanding receivables either from AEs or Non AEs and accordingly give relief to the appellant - HELD THAT - Assessee s Contention that payables were exceeding receivables, so no case of benchmarking on interest on trade receivables was discarded and the assessee has not challenged the same in either ways. Directions issued by the CIT(A) to AO / TPO giving rise to the grounds of present appeal of revenue it can be observed that at no stage during the hearing before TPO or even before CIT(A) the assessee had submitted anything factual which required any verification or which could have been examined and a reasonable conclusion drawn by the TPO or by Ld. CIT(A) himself. It was very much in the knowledge and records of the assessee as to which all Non-AE s the assessee had not charged any interest. So same should have been produced before CIT(A) at least in physical form than just a bald averment. No disputed question of fact before the CIT(A) requiring intervention in the form of a direction to ld. AO / TPO to verify the claim of the assessee. In fact if these documents / statements or facts were before Ld. CIT(A) that would only have given jurisdiction u/s 250(4) of the Act for direction of verification by Ld. AO. There is no reference to TPO in Section 254(4) of the Act and it merely mentions of Assessing officer. Thus as such when the appellate powers of Ld.CIT(A) are considered, within the ambit of Section 250(4) read with Section 251(1) of the Act, no such directions could have been issued by the CIT(A) to the TPO, who is exercising independent powers under Section 92CA of the Act. In the case in hand, the directions as issued by Ld CIT(A) to the TPO, would in fact would lead to the reopening of reference proceedings, before Ld. TPO, by allowing fresh piece of evidence. Specially, the one, which has not surfaced before any tax authority, so far. The directions issued by the Ld. CIT(A) cannot be sustained. However, the end of justice will be served by directing Ld. CIT(A) to call for the evidence of assessee at its level and then proceed to decide the matter afresh as per powers u/s 250(4) r.w.s 251(1) of the Act. Consequently, the grounds are allowed and the appeal is allowed for statistical purposes.

Summary

Issues:
Transfer pricing adjustment on account of trade receivables.

Analysis:
1. The appeal was filed by the revenue against the order passed by the Commissioner of Income Tax (Appeals) regarding transfer pricing adjustments on trade receivables. The case involved the determination of Arm's Length Price in respect of international transactions entered into by the assessee with its Associated Enterprises during the financial year 2013-14.
2. The Transfer Pricing Officer (TPO) had made observations regarding transfer pricing adjustment on trade receivables, highlighting details of invoices raised, payments received, and interest charges. The First Appellate Authority directed the TPO to verify the claim of the appellant that interest was not charged on outstanding receivables and provide relief accordingly.
3. The revenue challenged the direction before the Tribunal, arguing that the appellant failed to furnish detailed breakup-wise amounts realized from Associated Enterprises and Non-Associated Enterprises. The revenue contended that the direction to verify the claim was unjustified, citing discrepancies with the judgment of the Bombay High Court.
4. During the hearing, the Departmental Representative (DR) emphasized the inconsistent approach of the assessee, while the Authorized Representative (AR) defended the findings of the Commissioner of Income Tax (Appeals), stating that benchmarking on interest on trade receivables was unnecessary due to the higher trade payables than receivables.
5. The Tribunal analyzed the contentions and observations, noting that the TPO did not consider net payables while making transfer pricing adjustments. The Tribunal found that the appellant did not challenge this observation. The Tribunal also questioned the necessity of the direction issued by the Commissioner of Income Tax (Appeals) to verify the claim, as no disputed factual question was presented that warranted such intervention.
6. The Tribunal highlighted the statutory provisions governing the powers of the Commissioner of Income Tax (Appeals), emphasizing that the direction to the TPO exceeded the Commissioner's jurisdiction. The Tribunal concluded that the direction was not sustainable and directed the Commissioner to call for evidence from the assessee and decide the matter afresh. The appeal was allowed for statistical purposes, and the issue was restored to the Commissioner of Income Tax (Appeals) for a fresh decision.