2013 (9) TMI 632 - AT - Income Tax

Transfer pricing adjustments - DRP order being non-speaking Rejection of comparables selected by assessee allowance of benefit of A 5 per cent. - Held that - Reliance has been placed upon the similar case namely Evalueserve.com P. Ltd. v. ITO 2011 (11) TMI 111 - ITAT, DELHI , wherein it has been held that directions passed by the Dispute Resolution Panel under section 144C(5) are not speaking about what objections were raised by the assessee and how they have been found to be not acceptable. The Dispute Resolution Panel has simply observed that all the questions raised by the assessee have been answered in detail by the Transfer Pricing Officer and by the Assessing Officer in the draft order. The rejections of comparables are based on detailed reasoning and after applying reasonable filters. The denial of working capital adjustment as also capacity adjustment is based on cogent reasoning, use of current data has been found more appropriate and fresh search has been rejected as there is no valid reason. Similarly, the Dispute Resolution Panel has rejected the other grounds. Therefore, the order passed by the learned Dispute Resolution Panel is a non-speaking order not stating the objections raised by the assessee and the reasons have also not been given as simply the order of the Transfer Pricing Officer and the Assessing Officer are referred. In the present case, matter restored back to the file of the Dispute Resolution Panel to pass a speaking order stating all the objections of the assessee and disposing them by giving cogent reasons for adjudication of the objections of the assessee Decided in favor of assessee for statistical purpose.

Issues Involved:

1. Adjustment of Rs. 13,83,86,187 to the arm's length price of international transactions.
2. Rejection of the assessee's documentation and fresh comparability analysis by the Transfer Pricing Officer (TPO).
3. Inclusion of non-comparable companies in the comparability analysis.
4. Non-application of multiple-year/prior-year data for comparables.
5. Rejection of Customs Department valuation as a comparable uncontrolled price (CUP).

Issue-wise Detailed Analysis:

1. Adjustment of Rs. 13,83,86,187 to the Arm's Length Price:

The main ground of the appeal was against the Dispute Resolution Panel (DRP) confirming the TPO's adjustment of Rs. 13,83,86,187, holding that the international transactions of import of raw materials, tools, and consumables did not satisfy the arm's length price principle. The TPO conducted an independent search for comparables and did not provide necessary data about the 9 companies used for the adjustment, violating the principles of natural justice. The TPO also did not follow OECD guidelines and filters while computing the arm's length price.

2. Rejection of the Assessee's Documentation and Fresh Comparability Analysis:

The TPO rejected the assessee's documentation and conducted a fresh comparability analysis, which included companies that did not satisfy the test of comparability. The DRP upheld this decision, stating that the TPO's rejection of the CUP method and adoption of the Transactional Net Margin Method (TNMM) was justified due to flaws in the CUP method and the difficulty in finding exact comparables for the assessee's wide range of auto products.

3. Inclusion of Non-Comparable Companies in the Comparability Analysis:

The assessee argued that the TPO included companies in the comparability analysis that were not functionally comparable. The TPO's search process was criticized for using only keywords and not applying quantitative filters or qualitative analysis. The DRP found that the TPO's selection of comparables was based on the broad activities and functions of the assessee and was not disputed by the assessee, except for the need for additional filters.

4. Non-Application of Multiple-Year/Prior-Year Data for Comparables:

The TPO used data available at the time of assessment proceedings, instead of data available when preparing the transfer pricing documentation. The DRP upheld the TPO's approach, explaining that the use of current data was more appropriate. The assessee's argument for using multiple-year data, based on the principle of impossibility of performance, was not accepted.

5. Rejection of Customs Department Valuation as CUP:

The TPO rejected the Customs Department's valuation as a CUP, stating that transfer pricing rules and customs valuation rules differ significantly in scope and application. The DRP agreed, emphasizing that the customs valuation cannot be taken as the arm's length price due to differences in the approach and criteria of the two sets of rules.

Conclusion:

The Tribunal found that the DRP did not provide a detailed and reasoned order addressing each of the assessee's objections. Citing a similar case, the Tribunal set aside the DRP's order and remanded the matter back to the DRP to pass a speaking order addressing all objections with cogent reasons. The Assessing Officer was directed to pass a fresh order under section 144C(13) after receiving the DRP's detailed order. The appeal was allowed for statistical purposes.

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