2023 (4) TMI 725 - AT - Income Tax

TP Adjustment - In second round, the assessee sought various economic adjustments while computing its margins - AR submitted that TP adjustment could not exceed global profit of the group as a whole and therefore, TP adjustments may be restricted by considering 94% or in worst scenario @100% of sales consideration received from ultimate customer i.e., Nike - HELD THAT - TPO has proposed overall adjustment of Rs.60.50 Crores for all the three years which far exceeds the 100% of revenue ultimately realized by the assessee group from Nike. The same could not be held to be justified from any angle particularly considering the fact that in APA for subsequent years, it has been agreed that ALP, in no case, would exceed 100% of sale consideration receivable from ultimate customer. Therefore, accepting the plea of Ld. AR, we direct Ld. TPO to restrict the TP adjustment, for all the three years, by considering 100% of sale consideration receivable from ultimate customer i.e., Nike. The same has been tabulated by Ld. AR in the above table and works out to be Rs.31.49 Crores for all the three years. TPO is directed to verify the figures and restrict the adjustment to that extent.

Summary

Issues:
Transfer Pricing Adjustments, Nature of Business, Economic Adjustments, Advance Pricing Agreement (APA), Arm's Length Price (ALP), Tax Holiday, Global Profit, Independent Customer, Associated Enterprises (AE)

Transfer Pricing Adjustments:
The appeals by the assessee for Assessment Years 2009-10 to 2011-12 arose from final assessment orders passed by the Assessing Officer (AO) based on directions from the Dispute Resolution Panel (DRP). The Tribunal had remitted the matter back in the first round for further consideration. In the second round, the Transfer Pricing Adjustments proposed by the Transfer Pricing Officer (TPO) were challenged. The TPO held that the assessee was a contract manufacturer, while the assessee claimed to be a risk-bearing contract manufacturer. The TPO rejected economic adjustments claimed by the assessee, citing the initial years of business operations. The TPO's decision was upheld by the DRP, leading to the current appeal.

Nature of Business:
The assessee, engaged in manufacturing shoes as an Indian Branch of a company based in the British Virgin Islands, was at the center of the dispute regarding its nature of business. The TPO's characterization of the assessee as a contract manufacturer and the denial of economic adjustments based on this characterization were key issues in the case.

Economic Adjustments:
The assessee sought various economic adjustments while computing margins, emphasizing its role as a risk-bearing manufacturer. However, the TPO and DRP rejected these adjustments, leading to a dispute over the treatment of the assessee's revenue sharing arrangements with its Associated Enterprises (AEs) and the allocation of profits.

Advance Pricing Agreement (APA):
The assessee had entered into an Advance Pricing Agreement (APA) with the Central Board of Direct Taxes (CBDT), covering multiple assessment years. The terms of the APA, including the agreed-upon Most Appropriate Method (MAM) for benchmarking transactions, were highlighted by the assessee to support its position on Transfer Pricing Adjustments.

Arm's Length Price (ALP) and Tax Holiday:
The determination of the Arm's Length Price (ALP) for international transactions and the impact of the assessee's location in a Special Economic Zone (SEZ) enjoying a tax holiday were significant factors in the case. The assessee argued that the TP adjustments should not exceed the global profit of the group and proposed restrictions based on the sales consideration received from the ultimate customer.

Global Profit and Independent Customer:
The argument regarding the restriction of Transfer Pricing adjustments based on the global profit of the group and the consideration of sales revenue from the independent customer, Nike, played a crucial role in the final decision. The Tribunal directed the TPO to restrict the adjustments based on the sales consideration received from Nike, as agreed in the subsequent years' APA, thereby partially allowing the appeals.