2014 (5) TMI 742 - AT - Income Tax

Validity of DRP s order u/s 143(3) r.w.s 144C of the Act Rejection of transfer pricing documentation Transfer pricing adjustment Selection of comparables Held that - The Assessing Authority has to follow the directions of the DRP and this mandate is contained u/s. 144C(10) of the Act - the DRP has merely recorded a finding that Cyber Media (India) Online Ltd. is broadly comparable to the assessee company - The finding appears to be a finding necessary for disposal of objections raised by the assessee to the proposed assessment order made by the assessing authority - it is not that same thing as directions of DRP which it is empowered to give u/a 144C(5) r.w.s 144C(10) of the Act - The peculiar finding so given by DRP was merely for the guidance of the assessing authority and not a binding direction - If the assessing authority committed any procedural lapse in taking guidance from the finding, such a lapse does not impinge upon the legality of the order framed within the powers vested in him under the Act - the assessment cannot be held to be void or infructuous in the case. The assessing authority is the best judge of the situation and has to arrive at its conclusion without any bias and on rational basis - The Appellate Tribunal shall by itself not embark enquiry afresh into the facts and comment upon the similarities or dissimilarities of the comparables on the basis of new pleas which in fact is under the domain of the assessing authority - It is also claimed by the assessee and has fairly being admitted by the Revenue that the assessee did not have reasonable and effective opportunity of explaining its case before the authorities thus, the matter is remitted back to the Assessing Authority for fresh adjudication Decided in favour of Assessee.

Issues Involved:
1. Determination of arm's length price (ALP) for international transactions.
2. Validity of the order under section 143(3) read with section 144C of the Income Tax Act.
3. Incorporation of directions issued by the Dispute Resolution Panel (DRP).
4. Rejection of Transfer Pricing (TP) documentation.
5. Selection of comparable companies.
6. Rejection of comparable companies.
7. Denial of risk adjustment.
8. Use of non-contemporaneous data.
9. Benefit of 5% variation in ALP.
10. Levy of interest under section 234B.
11. Computation of interest under section 234B.
12. Initiation of penalty proceedings under section 271(1)(c).

Detailed Analysis:

1. Determination of Arm's Length Price (ALP) for International Transactions:
The assessee contested the addition of Rs. 11,351,925 to its total income due to differences in the ALP for marketing support services provided to associated enterprises (AEs). The Transfer Pricing Officer (TPO) found the assessee's Transfer Pricing Study defective and conducted a fresh search for comparables, ultimately selecting nine companies with an average OP/TC of 25.50%, leading to the adjustment.

2. Validity of the Order under Section 143(3) read with Section 144C:
The assessee argued that the order was void-ab-initio and infructuous as it violated sections 144C(10), (13), and (5) by not incorporating DRP's directions. However, the Tribunal held that the procedural lapse did not affect the order's legality.

3. Incorporation of Directions Issued by the DRP:
The DRP's directions were not fully incorporated by the Assessing Officer (AO), particularly regarding the inclusion of Cyber Media (India) Online Ltd. as a comparable. The Tribunal noted that the DRP's findings were for guidance and not binding directions, thus not rendering the assessment void.

4. Rejection of Transfer Pricing (TP) Documentation:
The TPO rejected the assessee's TP documentation under section 92CA(3)(c) and conducted a fresh search for comparables, finding the original study unreliable.

5. Selection of Comparable Companies:
The assessee contended that the comparables selected by the TPO were functionally dissimilar. The Tribunal noted that the TPO's selection process was detailed and based on functional analysis, but the assessee's objections warranted reconsideration.

6. Rejection of Comparable Companies:
The assessee argued that certain companies were wrongly excluded as comparables. The Tribunal agreed that the functional dissimilarities and risk profiles needed re-examination by the AO.

7. Denial of Risk Adjustment:
The assessee's request for risk adjustment was denied by the TPO. The Tribunal directed the AO to reconsider this aspect during the reassessment.

8. Use of Non-Contemporaneous Data:
The TPO used data for the financial year 2008-09, which was not available when the assessee prepared its TP documentation. The Tribunal found that the use of non-contemporaneous data needed re-evaluation.

9. Benefit of 5% Variation in ALP:
The assessee was denied the benefit of a 5% variation from the arithmetic mean while determining the ALP. The Tribunal directed the AO to reconsider this benefit during reassessment.

10. Levy of Interest under Section 234B:
The AO levied interest under section 234B, which the assessee contested. The Tribunal did not provide specific directions on this issue, implying it would be reconsidered during reassessment.

11. Computation of Interest under Section 234B:
The assessee argued that the interest computed under section 234B was incorrect. The Tribunal directed the AO to re-evaluate the computation during reassessment.

12. Initiation of Penalty Proceedings under Section 271(1)(c):
The AO initiated penalty proceedings under section 271(1)(c). The Tribunal's decision to remit the matter back to the AO implied that the penalty proceedings would also be reconsidered.

Conclusion:
The Tribunal set aside the addition and remitted the matter back to the AO for fresh assessment, directing that reasonable and effective opportunity be provided to the assessee. The AO is to re-evaluate the comparables, risk adjustments, use of contemporaneous data, and other issues raised by the assessee in accordance with the law. The appeal was allowed for statistical purposes only.

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