2013 (2) TMI 351 - AT - Income Tax

Determination of ALP as NIL - SAP services - applying Comparable Uncontrollable Price ( CUP ) method - addition to the total income on account of the international transactions entered by the appellant with its associated enterprises - assessee contested against the additions stating it to be transaction merely a means to siphon off profits from India - Held that - TPO has to work out the ALP of the international transaction by applying the methods recognized under the Act. He is not competent to hold that the expenditure in question has not been incurred by the assessee or that the assessee has not derived any benefits for the payment made by the assessee and therefore he cannot consider the ALP as NIL. TP study done by the assessee in support of the ALP does not give out any comparable instances of similar transactions between the unrelated parties. As far as the determination of ALP under the Act is concerned the provisions lay down that the assessee has to adopt one of the methods laid down in section 92C(1). The assessee has to substantiate the price that is paid to its AE as at Arm s Length within one of the methods so prescribed. As already noticed the TP study of the assessee is not in tune with the provisions of section 92C. As in the course of hearing it was suggested that the cost of providing SAP charges by Festo Germany to all entities of the Festo group worldwide and the basis of allocation of cost by Festo Germany to various group entities across the world should be submitted by the assessee with a view to enable the TPO to ascertain as to whether there has in fact been any profit element involved or was it a case of mere reimbursement of actual cost incurred for the Assessee by the parent company. The stand of the assessee has been that the payment was merely reimbursement of cost and in this regard attention was drawn to invoices raised by Festo Germany on other group entities in other parts of the world. The assessee has also sought to file a chart regarding the benefits that the assessee received by paying the SAP charges and also that the payment was reimbursement of cost. Thus these submissions require a fresh consideration by the TPO in the light of the observations made above - remand the question of determination of ALP to the TPO for fresh consideration - in favour of assessee for statistical purposes.

Issues Involved:
1. Incorrect interpretation of law by the AO and DRP.
2. Incorrect assessment of total income.
3. Addition to total income due to adjustment in the arm's length price (ALP) of international transactions.
4. Rejection of the transfer pricing analysis conducted by the appellant.
5. Inability to prove the rendering and benefit of SAP services.
6. Application of Comparable Uncontrollable Price (CUP) method.
7. Allegation of profit siphoning.
8. Levy of interest under sections 234C and 234D.
9. Initiation of penalty proceedings under section 271(1)(c).

Detailed Analysis:

1. Incorrect Interpretation of Law by the AO and DRP:
The appellant contended that the order of the AO and the directions of the DRP were based on an incorrect interpretation of law, rendering them bad in law.

2. Incorrect Assessment of Total Income:
The AO assessed the total income at Rs. 507,107,387 against the returned income of Rs. 484,241,580. This assessment was challenged by the appellant as erroneous.

3. Addition to Total Income Due to Adjustment in ALP:
The AO/TPO made an addition of Rs. 22,865,807 to the total income of the appellant due to an adjustment in the ALP of an international transaction involving SAP service charges paid to an associated enterprise (AE), Festo, Germany.

4. Rejection of Transfer Pricing Analysis:
The AO/TPO rejected the transfer pricing analysis conducted by the appellant, which was done in accordance with the provisions of the Act and the Rules. They conducted a fresh economic analysis and concluded that the transaction was not at arm's length.

5. Inability to Prove Rendering and Benefit of SAP Services:
The AO/TPO concluded that the appellant failed to prove that SAP services were actually rendered and that any economic benefit was derived from these services. The DRP upheld this view, stating that the benefit derived was remote or indirect.

6. Application of CUP Method:
The AO/TPO applied the CUP method unilaterally for determining the ALP of the SAP service charges without providing the appellant an opportunity to evaluate the results of the new economic analysis.

7. Allegation of Profit Siphoning:
The AO/TPO alleged that the international transaction was a means to siphon off profits from India, as the taxpayer paid only 10% tax compared to the 40% tax rate if the same amount was shown as profits and remitted as dividends.

8. Levy of Interest:
The AO levied interest of Rs. 112,245 and Rs. 840,878 under sections 234C and 234D of the Act, respectively.

9. Initiation of Penalty Proceedings:
The AO initiated penalty proceedings under section 271(1)(c) of the Act, which the appellant contested.

Judgment Analysis:

On the Issue of Incorrect Interpretation of Law:
The Tribunal noted that the AO and DRP's interpretation was based on a misapprehension regarding the nature of SAP charges, which were maintenance charges and not implementation charges. The Tribunal held that the TPO should not have assumed that no services were rendered or that the payment was not at arm's length without proper evidence.

On the Issue of Incorrect Assessment of Total Income:
The Tribunal found that the AO's assessment was incorrect due to the flawed approach in determining the ALP of the SAP service charges.

On the Issue of Addition to Total Income Due to Adjustment in ALP:
The Tribunal observed that the TPO's approach of treating the ALP as NIL was not justified. The TPO should have used one of the methods prescribed under section 92C(1) of the Act to determine the ALP.

On the Issue of Rejection of Transfer Pricing Analysis:
The Tribunal held that the TPO's rejection of the appellant's transfer pricing analysis without providing comparable instances was invalid. The appellant's TP study should be in accordance with the provisions of the Act.

On the Issue of Inability to Prove Rendering and Benefit of SAP Services:
The Tribunal emphasized that the TPO must ascertain the exact nature of services rendered, the costs involved, and the benefits derived. The appellant should provide sufficient evidence to substantiate these aspects.

On the Issue of Application of CUP Method:
The Tribunal criticized the TPO for applying the CUP method without giving the appellant a chance to evaluate the results. The TPO must follow the methods recognized under the Act.

On the Issue of Allegation of Profit Siphoning:
The Tribunal found that the TPO's allegation of profit siphoning was based on an incorrect understanding of the nature of the SAP charges and the tax implications.

On the Issue of Levy of Interest:
The Tribunal did not specifically address the levy of interest under sections 234C and 234D, as the primary focus was on the determination of ALP.

On the Issue of Initiation of Penalty Proceedings:
The Tribunal did not specifically address the initiation of penalty proceedings under section 271(1)(c), as the primary focus was on the determination of ALP.

Conclusion:
The Tribunal set aside the order of the AO on the issue of SAP charges and remanded the matter to the TPO for fresh consideration. The TPO was directed to ascertain the cost of providing SAP charges by Festo, Germany, the basis of cost allocation, and whether the payment was merely a reimbursement of actual costs. The appellant was directed to file a TP study in accordance with the provisions of the Act and substantiate that the price paid was at arm's length. The appeal was treated as allowed for statistical purposes.

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