2013 (11) TMI 1238 - AT - Income Tax

Transfer pricing adjustments - determination of ALP - TNMM method - selection of comparable - Held that - we find inconsistency in the approach of the TPO with regard to the issue of tested party . On the one hand, the TPO averred that there was no reliable data available for both GMDAT and comparables; however, on the other hand, he had conveniently taken GMDAT as the tested party while making adjustment to transaction relating to payment of royalty by the assessee to GMDAT. This exposes the inconsistency approach of the TPO. - The financial statements of comparable companies have since been audited by the independent auditors and, thus, there can be no reservation in placing a reliance on the same. In consonance with the case laws quoted (supra) and also the United Nation s Practical Manual on transfer pricing, we direct the TPO to adopt GMDAT as the tested party for analyzing the inter-company transactions of the assessee for both the AYs under consideration. To facilitate the TPO to analyze the inter-company transactions in the case of the assessee by selecting GMDAT as tested party as directed above, this issue is restored on the files of the TPO. - matter remanded back.

Issues Involved:
1. Disallowance of proportionate lease charges in respect of leasehold land.
2. Disallowance of expenditure incurred on gifts.
3. Disallowance on account of provision for slow-moving and obsolete inventory.
4. Transfer pricing adjustments.
5. Non-provision of the benefit of 5% range as per the proviso to Section 92C(2) of the Act.
6. Disallowance out of workmen and staff welfare expenses.
7. Addition of royalty transaction.

Detailed Analysis:

1. Disallowance of Proportionate Lease Charges:
For both AY 2006-07 and 2007-08, the assessee claimed amortized expenses for leasehold land, which the AO disallowed by following earlier Tribunal decisions. However, the Tribunal allowed the assessee's claim based on the jurisdictional High Court ruling in Dy. CIT v. Sun Pharmaceuticals Ind. Ltd., affirming that such expenses are deductible.

2. Disallowance of Expenditure Incurred on Gifts:
The assessee claimed expenses on gifts to dealers, business associates, and employees, which the AO disallowed. The Tribunal allowed the claim, recognizing the customary nature of such expenses in maintaining business relationships and promoting business activities, thus falling under Section 37(1) of the Act.

3. Disallowance on Account of Provision for Slow-Moving and Obsolete Inventory:
The AO disallowed the provision for slow-moving and obsolete inventory. The Tribunal restored the issue to the AO for fresh consideration, directing verification of the assessee's assertion and allowing appropriate action based on the facts.

4. Transfer Pricing Adjustments:
The main contention was whether GMDAT or Mahindra & Mahindra (M&M) should be the tested party. The Tribunal directed the TPO to adopt GMDAT as the tested party for analyzing inter-company transactions, considering that GMDAT is less complex and has more reliable data available. The issue of comparables for the Tech Centre Operations was also remitted back to the TPO for fresh consideration, directing detailed examination and verification of the assessee's contentions.

5. Non-Provision of the Benefit of 5% Range:
The Tribunal directed the AO/TPO to verify if the variation between the arm's length price and the price at which the international transaction was undertaken is within the 5% range as per the proviso to Section 92C(2) and to adopt the transaction price if it falls within this range.

6. Disallowance Out of Workmen and Staff Welfare Expenses:
The AO made an ad-hoc disallowance of 10% of the workmen and staff welfare expenses. The Tribunal deleted the disallowance, finding the AO's reasoning unsound and emphasizing that ad-hoc disallowances do not stand the scrutiny of law.

7. Addition of Royalty Transaction:
The TPO made an adjustment to the royalty payment based on external CUPs, which the assessee contested. The Tribunal remitted the issue back to the TPO for detailed examination and verification of the agreements involved, directing appropriate action after considering the assessee's contentions.

Conclusion:
The Tribunal allowed the appeals partly for statistical purposes, directing the AO/TPO to re-examine several issues and take appropriate actions based on detailed verification and examination of facts. The Tribunal's directions emphasized the need for a thorough and fair analysis in determining the arm's length price and other related adjustments.

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