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2012 (10) TMI 790 - AT - Income TaxTransfer Pricing Arm Length Price Whether assessee is estopped from pleading before the CIT(A) that the comparable taken by it are wrong, whereas same has been accepted by TPO - CIT(A) holding that the 4 comparable selected by the assessee and accepted by the TPO, are not functionally comparable and decides in favour of assessee Held that - Following the decision in case of Quark Systems Pvt. Ltd. (2009 (10) TMI 591 - ITAT, CHANDIGARH) that assessee is not estopped from pointing out a mistake in the assessment, for such mistake is the result of evidence adduced by the tax payer. In this case the assessee has demonstrated that prima facie there is a mistake in its taking all these comparables. Appeal decides against revenue. In respect of retrospective amendment to Sec.92C - Set aside the issue to the file of the CIT(A) for fresh adjudication
Issues Involved:
1. Reference to the Transfer Pricing Officer (TPO) by the Assessing Officer (AO). 2. Acceptance of TPO's recommendation by the AO. 3. Use of current year data by the TPO. 4. Functional comparability of selected comparables. 5. Exclusion of certain comparables by the Commissioner of Income Tax (Appeals) [CIT(A)]. 6. Risk profile considerations. 7. Penalty proceedings under Explanation 1 and Explanation 7 to Section 271(1)(c) of the Income Tax Act, 1961. Detailed Analysis: 1. Reference to the TPO by the AO: The CIT(A) framed the question of whether the reference made by the AO to the TPO mechanically is bad in law, making the TPO's order void-ab-initio. The CIT(A) answered this question in favor of the Revenue, indicating that the reference was lawful. 2. Acceptance of TPO's Recommendation by the AO: The CIT(A) also considered whether the mechanical acceptance of the TPO's recommendation by the AO makes the assessment order bad in law. This question was also answered in favor of the Revenue, implying that the AO's acceptance of the TPO's findings was valid. 3. Use of Current Year Data by the TPO: The TPO used data for the financial year 2003-04 only, rejecting the assessee's use of multiple year data. The CIT(A) upheld the TPO's approach, stating that the use of data for the year in which the international transaction was entered into is mandated by Sub-rule (4) of Rule 10B, unless exceptional circumstances justify otherwise. 4. Functional Comparability of Selected Comparables: The core issue was whether the CIT(A) was right in excluding four comparables chosen by the assessee in its TP study and accepted by the TPO. The CIT(A) found that Engineers India Ltd., RITES Ltd., TCE Consulting Engineers Ltd., and Water & Power Consultancy Services Ltd. were not functionally comparable to the assessee, which provides marketing support services. The Tribunal agreed, noting significant functional differences and different risk profiles, rendering these entities incomparable to the assessee. 5. Exclusion of Certain Comparables by the CIT(A): The CIT(A) excluded the four comparables on the grounds that they were engaged in high-end engineering consultancy services, which are fundamentally different from the marketing support services provided by the assessee. The Tribunal upheld this exclusion, agreeing that the risk and return profiles of these engineering companies were significantly different from those of the assessee. 6. Risk Profile Considerations: The Tribunal noted that the engineering consultancy companies bear higher risks compared to the assessee, which operates on a cost-plus model with lower risk. This difference in risk profiles further justified the exclusion of these companies as comparables. 7. Penalty Proceedings: The assessee's cross objections included a ground regarding the initiation of penalty proceedings under Explanation 1 and Explanation 7 to Section 271(1)(c) of the Income Tax Act, 1961. However, the Tribunal did not address this issue in detail, as the assessee did not press the cross objections. Conclusion: The Tribunal dismissed the Revenue's appeals and the assessee's cross objections. It upheld the CIT(A)'s decision to exclude the four comparables and agreed that the assessee was not estopped from challenging the comparables it initially selected. The Tribunal also set aside one issue related to the retrospective amendment to Section 92C for fresh adjudication by the CIT(A).
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