2013 (9) TMI 596 - AT - Income Tax

Transfer pricing adjustments - ALP - Violation of Rule 10B(1)(a) - Determination of arm s length price - Internal Comparable Uncontrolled Price - CIT upheld adjustment made by TPO - Held that - method upheld by the CIT(A), for the purposes of ascertaining ALP, is Internal CUP, but then the application of this method is clearly incorrect inasmuch as any application of any CUP (Comparable Uncontrolled Price) method involves dealing with prices of a product not the profit margin earned thereon - even in the case of internal CUP , the arm s length price to be adopted is the price, subject to admissible adjustments, at which the similar transactions are carried out between the assessee and an independent enterprise. Internal CUP has nothing to do with the margins earned by the same enterprises from other transactions - Following decision of Technimont ICB Pvt Ltd v Additional Commissioner of Income Tax 2013 (9) TMI 595 - ITAT MUMBAI - Decided in favour of assessee. Binding nature of earlier ITAT decision - Division bench decision in Bayer Material Science Pvt Ltd v. Additional Commissioner of Income Tax (2011 (12) TMI 393 - ITAT MUMBAI) or Third member decision in Technimont ICB Pvt Ltd v Additional Commissioner of Income Tax (2013 (9) TMI 595 - ITAT MUMBAI) whereas the judicial member in the Bayer case is the third member in the ICB case - Held that - As far as the question of binding nature of these judgments is concerned, there does not seem to be much dispute on the proposition that a Third Member decision overrides the decision of a division bench and has a greater binding force. It has the same precedence value as that of a special bench. Elaborating this principle, a special bench of this Tribunal, in the case of DCIT v Oman International Bank SAOG (2006 (5) TMI 117 - ITAT BOMBAY-H), that a Third Member decision is defacto a decision of larger bench, and , in coming to this conclusion, the Special Bench was guided by Hon ble Delhi High Court s judgment in the case of PC Puri v. CIT (1984 (2) TMI 48 - DELHI High Court).

Issues Involved:

1. General grievance against assessed income.
2. Determination of Arm's Length Price (ALP) by comparing operating profit margin with GE Industrial India Private Limited.
3. Application of Internal Comparable Uncontrolled Price (Internal CUP) Method for determining ALP of finished goods.

Issue-wise Detailed Analysis:

1. General Grievance Against Assessed Income:

The assessee raised a general grievance against the assessed income of Rs 37,48,65,520 as against the returned income of Rs 25,13,90,585. The counsel for the assessee submitted that this ground of appeal is general in nature and does not require adjudication. Consequently, this ground of appeal was dismissed as not pressed.

2. Determination of ALP by Comparing Operating Profit Margin with GE Industrial India Private Limited:

The assessee argued that the Assessing Officer (AO) and Transfer Pricing Officer (TPO) erred in determining the ALP by comparing the operating profit margin of the assessee with that of GE Industrial India Private Limited (GE). The transactions of GE were not uncontrolled transactions, violating Rule 10B(1)(a) read with Rule 10A(a) and 10B(2) of the Income Tax Rules.

The TPO rejected the assessee's transfer pricing study, finding the comparables used by the assessee functionally incomparable. The TPO adopted the Internal CUP method, comparing the assessee's business with GEII's plastic division, which had a similar business model and operations. The operating margin of the assessee was 3.34%, while GEII's plastic division had an operating margin of 8.95%. An addition of Rs 12,34,74,937 was made to the total income of the assessee.

The CIT(A) upheld the TPO's approach, stating that GEII's transactions could be considered as internal CUP despite being controlled transactions. The CIT(A) cited the ITAT Mumbai Bench decision in Bayer Material Science Pvt. Ltd., which allowed controlled transactions to be used for benchmarking in the absence of comparable uncontrolled transactions.

3. Application of Internal CUP Method for Determining ALP of Finished Goods:

The assessee contended that the AO and TPO erred in applying the Internal CUP Method for determining the ALP of finished goods imported from associated enterprises without quoting uncontrolled prices for comparable transactions, which is a prerequisite for applying the CUP Method.

The Tribunal observed that the method upheld by the CIT(A) was incorrect as any application of the CUP method involves dealing with prices of a product, not the profit margin earned thereon. Rule 10B(1)(a) requires the identification of the price charged or paid for property transferred or services provided in a comparable uncontrolled transaction. The Tribunal noted that the CIT(A)'s reliance on the decision in Bayer Material Science Pvt. Ltd. was no longer sustainable in law.

The Tribunal referenced the Third Member decision in Technimont ICB Pvt Ltd, which clarified that a controlled transaction cannot be used for benchmarking purposes. The Tribunal concluded that the authorities below erred in adopting the net margin based on GEII's plastic division and vacated the same.

The Tribunal remitted the matter to the CIT(A) for fresh adjudication on merits, instructing the CIT(A) to provide a speaking order in accordance with the law. The Tribunal did not address other issues on merits since the CIT(A) had not dealt with them.

Conclusion:

The Tribunal vacated the impugned ALP additions of Rs 12,34,74,937 in principle and allowed the appeal for statistical purposes, remitting the matter to the CIT(A) for proper adjudication. All other grounds of appeal were dismissed as infructuous.

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