2012 (6) TMI 478 - AT - Income Tax

Transfer pricing - arm s length price - addition on account of adjustment in respect of transactions with Associated Enterprises by taking profit margin at 27.84% as against margin of 20.17% of the assessee - Denial of plus / minus 5 % benefit Held that - TPO/AO erred and the Hon ble DRP further erred in upholding / confirming the action of the learned TPO/AO in denying the benefit / reduction of 5 percent from the arithmetic mean as provided in proviso to Section 92C(2) of the Act while computing the adjustment to the total income of the Appellant. benefit of 5% is to be allowed to assessee even in cases where difference in value of international transactions and its ALP is more than 5%, and accordingly it was held that computation made by AO is therefore required to be reworked. Regarding direction of DRP working capital adjustment - DRP while giving direction to AO to pass assessment order specifically directed to work out the working capital adjustment but AO has failed to comply with said direction on the ground that relevant details of comparables is required and this requires an exhaustive exercise to be done before giving working capital adjustments. AO was not justified to defy the direction of DRP and not to give working capital adjustment while making addition at ALP of the transactions of assessee with AEs. matter restored to AO to work out margin of profit at ALP of all 30 comparable companies of transactions with AEs and also to give working capital adjustment

Issues Involved:
1. Adjustment of Arm's Length Price (ALP) for transactions with Associated Enterprises.
2. Selection of comparable companies for determining ALP.
3. Working capital adjustment.
4. Use of single-year data versus multiple-year data.
5. Risk adjustment.
6. Benefit of the +/- 5% range.
7. Rejection of the appellant's benchmarking analysis.
8. Credit for Tax Deducted at Source (TDS).
9. Initiation of penalty proceedings.

Issue-wise Detailed Analysis:

1. Adjustment of Arm's Length Price (ALP):
The assessee disputed the addition of Rs. 9,29,93,817/- made by the Assessing Officer (AO) based on the Transfer Pricing Officer (TPO)'s determination of the ALP. The TPO aggregated the IT enabled services (ITES) and IT services segments for benchmarking, resulting in a higher profit margin of 27.84% compared to the assessee's 20.17%.

2. Selection of Comparable Companies:
The TPO initially accepted only 8 out of 14 comparable companies provided by the assessee and introduced 25 additional comparables. The assessee objected to 21 of these 25 comparables, arguing they were not functionally similar. The final list of 30 comparables included 5 from the assessee's list and 3 common ones. The assessee disputed 7 out of these 30 companies, arguing they were not functionally comparable.

3. Working Capital Adjustment:
The Dispute Resolution Panel (DRP) directed the AO to provide a working capital adjustment, following a similar decision for the previous assessment year. However, the AO did not comply, citing the need for exhaustive details. The Tribunal held that the AO was not justified in disregarding the DRP's direction and remanded the matter back to the AO to provide the working capital adjustment.

4. Use of Single-Year Data versus Multiple-Year Data:
The TPO used single-year data for the financial year 2006-07, while the assessee used multiple-year data to minimize abnormal factors. The Tribunal noted that the use of single-year data is mandated unless the assessee substantiates the use of multiple-year data, which was not done in this case.

5. Risk Adjustment:
The assessee requested risk adjustment, arguing that its captive operation was devoid of significant business and entrepreneurial risks. The TPO rejected this, stating the approach was based on assumptions. The Tribunal did not provide a specific ruling on this issue but remanded the matter for recalculating the ALP after considering the working capital adjustment.

6. Benefit of the +/- 5% Range:
The TPO and DRP did not allow the benefit of the +/- 5% range, treating it as a safe harbor and not a standard deduction. The Tribunal, however, allowed the benefit of the 5% range, following precedents that supported the assessee's position.

7. Rejection of the Appellant's Benchmarking Analysis:
The TPO rejected the assessee's benchmarking analysis, which used contemporaneous data and selected comparables based on a detailed and systematic approach. The Tribunal remanded the matter for recalculating the ALP, considering the working capital adjustment and correcting any calculation errors.

8. Credit for Tax Deducted at Source (TDS):
The assessee claimed that the AO did not provide credit for TDS amounting to Rs. 2,11,532/-. The Tribunal directed the AO to consider the credit for TDS while recomputing the adjustment.

9. Initiation of Penalty Proceedings:
The AO initiated penalty proceedings under section 271(1)(c) of the Income Tax Act. The Tribunal did not provide a specific ruling on this issue, as the primary focus was on the ALP adjustment and related calculations.

Conclusion:
The Tribunal allowed the appeal in part, remanding the matter to the AO for recalculating the ALP after providing the working capital adjustment and correcting any calculation errors. The benefit of the 5% range was allowed, and the AO was directed to consider the credit for TDS. The issues regarding the selection of comparables and the rejection of the assessee's benchmarking analysis were not conclusively resolved but were to be reconsidered in light of the recalculations.

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