2014 (7) TMI 948 - AT - Income Tax

Transfer pricing adjustment Indenting transactions - Held that - The Indenting transactions are different from Trading transactions in terms of functional differences, risks undertaken and assets employed, and hence both cannot be considered as uniform - Following the decision in Sumitomo Corporation India P. Ltd. Versus Deputy Commissioner of Income-tax 2013 (12) TMI 594 - ITAT DELHI - commission earned by the assessee from its AEs under the Indenting segment was required to be benchmarked on the basis of commission earned by the assessee from non-AEs under Indenting segment - the commission percentage from AE transactions should be benchmarked on the basis of commission rate from non-AE transactions under the Indenting business - the commission percentage on the basis of FOB value of goods from transactions with non-AEs be computed and taken as arm s length rate of commission for the purposes of the transactions with AEs under the Indenting business segment - the rates of commission are not emanating from the orders thus, the matter is remitted back to the AO/TPO to find out the rate of commission income on FOB value of the transactions with non-AEs under the Indenting business segment Decided partly in favour of Assessee.

Summary

Issues Involved:
Transfer pricing adjustment on international transactions.

Detailed Analysis:

Issue: Transfer Pricing Adjustment

The appeal was against the addition of Rs. 88,40,13,476 made by the Assessing Officer (AO) on account of transfer pricing adjustment. The assessee, a subsidiary of a Japanese company, engaged in indenting and trading transactions. The assessee used the Transactional Net Margin Method (TNMM) to benchmark its international transactions. The Transfer Pricing Officer (TPO) disagreed with the assessee's approach, especially in the indenting business segment. The TPO proposed a transfer pricing adjustment based on the FOB value of goods and the gross profit margin. The Dispute Resolution Panel (DRP) and AO upheld the adjustment, leading to the appeal.

The Tribunal noted that the facts of the current year were similar to the preceding years where transfer pricing adjustments were made. Previous Tribunal orders highlighted the differences between indenting and trading transactions, emphasizing the need to benchmark commission rates separately for related and non-related party transactions. The Tribunal directed that the commission percentage from non-related party transactions should be used as the arm's length rate for related party transactions in the indenting business segment.

The assessee argued for the acceptance of TNMM and presented a tribunal order in another case to support their stance. However, the Tribunal rejected this argument, stating that consistency with previous decisions was crucial. The Tribunal directed the AO/TPO to determine the commission rate on FOB value for non-related party transactions in the indenting business segment and apply the same rate to related party transactions. The assessee was granted a hearing in the reassessment process.

Ultimately, the Tribunal partly allowed the appeal, setting aside the previous order and remitting the matter for reassessment based on the commission rates determined for non-related party transactions.

In conclusion, the Tribunal's decision focused on the proper benchmarking of commission rates in related and non-related party transactions, emphasizing the functional and risk differences between indenting and trading transactions. The Tribunal underscored the importance of consistency with previous decisions in transfer pricing matters.