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2014 (2) TMI 991 - AT - Income TaxDetermination of Arm s Length Price Transfer Pricing Adjustment - Held that - The decision in Assistant Commissioner of Income-tax Versus DHL Danzas Lemuir (P.) Ltd. 2006 (9) TMI 498 - BOMBAY HIGH COURT followed - The assessee shared profit in the ratio of 50 50 both on the payments made by it and the receipts of freight from its AEs - The assessee paid certain sum to its AEs abroad for doing the work similar to which it did for which it received freight revenue from its AEs - the assessee has earned/paid revenue from to its AEs in the same proportion thus, the transactions have been recorded at arm s length price and there was no justification for making such addition there is no reason to interfere with the order Decided against Revenue. Denial of benefit of Percent range as per section 92C(2) of the Act Held that - The lower authorities have erred in denying the benefit of the proviso to Sec. 92C(2) of the Act while computing the ALP thus, the benefit of the proviso to Section 92C(2) of the Act should be given to the assessee Decided in favour of Assessee.
Issues Involved:
1. Deletion of addition by CIT(A) regarding Arm's Length Price (ALP) determined by the TPO/AO. 2. Determination of ALP using OP/VAE versus OP/TC as Profit Level Indicator. 3. Acceptance of new sharing policy as per the rate card model. 4. Denial of benefit of the proviso to Sec. 92C(2) of the Act while computing ALP. 5. Levy of interest under section 234B of the Act. Issue-wise Detailed Analysis: 1. Deletion of Addition by CIT(A) Regarding ALP Determined by TPO/AO: The Revenue challenged the deletion of Rs. 5,11,03,531/- added by the TPO/AO in respect of the ALP determined by the TPO. The assessee, a joint venture logistics service provider, had benchmarked its international transactions using the Transactional Net Margin Method (TNMM) with Operating Profit/Value Added Expenses (OP/VAE) as the Profit Level Indicator (PLI). The TPO, however, used Operating Profit/Total Cost (OP/TC) as the PLI, resulting in an adjustment of Rs. 5,11,03,531/-. The CIT(A) found the assessee's benchmarking and the 50:50 profit split model to be at arm's length, thus deleting the addition. 2. Determination of ALP Using OP/VAE Versus OP/TC as Profit Level Indicator: The TPO issued a notice to the assessee to justify the use of OP/VAE instead of OP/TC. The assessee provided comparable uncontrolled price (CUP) data and explained the appropriateness of OP/VAE. The TPO disregarded these submissions and used OP/TC, leading to adjustments in receipts and payments. The CIT(A) upheld the assessee's use of OP/VAE, noting that both the 50:50 model and the rate card model produced consistent profitability outcomes, thus considering them to be at arm's length. 3. Acceptance of New Sharing Policy as Per the Rate Card Model: The Tribunal, in the assessee's own case for A.Y. 2004-05, had accepted the 50:50 profit share model. The CIT(A) found the rate card model, which replaced the 50:50 model from 1.11.2004, to also be at arm's length. The Tribunal found no distinguishing facts to deviate from this finding and upheld the CIT(A)'s decision, thus accepting the new sharing policy as per the rate card model. 4. Denial of Benefit of the Proviso to Sec. 92C(2) of the Act While Computing ALP: The assessee contended that the lower authorities erred in denying the benefit of the proviso to Sec. 92C(2) while computing the ALP. The Tribunal agreed with the assessee, directing the AO to give the benefit of the proviso, which allows a range of +/- 5% for determining the ALP. 5. Levy of Interest Under Section 234B of the Act: The assessee also challenged the levy of interest under section 234B. The Tribunal noted that while the levy of interest is mandatory, it is consequential in nature. Therefore, the AO was directed to recalculate the interest as per the provisions of law. Conclusion: The Tribunal dismissed the Revenue's appeal and allowed the assessee's appeal, upholding the CIT(A)'s deletion of the addition and acceptance of the rate card model as at arm's length. The Tribunal also directed the AO to give the benefit of the proviso to Sec. 92C(2) and to recalculate the interest under section 234B. Order pronounced in the open court on 10/02/2014.
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