2015 (6) TMI 35 - AT - Income Tax

Transfer pricing adjustment - assessee has charged its Associate Enterprise at cost 12% basis - assessee has considered TNM method to be the most appropriate method for benchmarking its transaction with AE with return on capital employed/operating profits as the appropriate PLI - selection of comparables - Held that - The matter requires fresh adjudication at the level of the TPO considering the fact that assessee has not considered any company as comparable and the 2 companies selected by the TPO from the final list of 10 companies are involved in fraud for which the financial results cannot be considered as correct and reliable. The TPO, however, is at liberty to search for fresh comparables and determine the ALP of the international transaction carried out by the assessee for the impugned assessment year. While doing so, the TPO shall give due opportunity of being heard to the assessee and decide the issue as per fact and law. - Decided in favour of assesse for statistical purposes.

Summary

Issues Involved:
1. Appropriateness of Transfer Pricing adjustments.
2. Validity of the comparables selected by the Transfer Pricing Officer (TPO).
3. Consistency in the application of Transfer Pricing methods across different assessment years.
4. The reliability of financial results of the comparables due to alleged fraud.

Detailed Analysis:

1. Appropriateness of Transfer Pricing adjustments:
The assessee, Ocean Connect (I) Pvt. Ltd., filed its return of income declaring a total income of Rs. 12,240/-. The TPO, during the Transfer Pricing assessment, noted that the assessee had entered into international transactions with its Associate Enterprise (AE) amounting to Rs. 8,32,10,579/-. The assessee charged its AE on a cost + 12% basis and used the Transactional Net Margin Method (TNM) for benchmarking. However, the TPO was not satisfied with the explanation provided by the assessee and issued a show cause notice proposing two companies for benchmarking, which led to an upward adjustment of Rs. 1,48,03,162/- to the international transaction carried out by the assessee.

2. Validity of the comparables selected by the TPO:
The TPO selected Maple Esolutions Ltd. and Saffron Global Ltd. as comparables, which had a Profit Level Indicator (PLI) of 34.86% and 24.72%, respectively. The assessee objected to these comparables, arguing that they did not operate under similar contracts and circumstances. The TPO rejected the assessee's explanation, stating that the comparables were selected after a thorough study and the assessee failed to benchmark its transaction between independent unrelated entities. The CIT(A) upheld the TPO's decision, stating that the assessee did not object to the comparables during the TPO proceedings.

3. Consistency in the application of Transfer Pricing methods across different assessment years:
The assessee argued that in the preceding and subsequent years, the TNM method showing cost + 12% markup was accepted without any adjustments. The assessee cited the decision of the Hyderabad Bench of the Tribunal in the case of Market Tools Research (P) Ltd. and the Mumbai Bench of the Tribunal in the case of Stream International Services Pvt. Ltd., where Maple Esolutions Ltd. was excluded as a comparable due to unreliable financial results.

4. The reliability of financial results of the comparables due to alleged fraud:
The assessee contended that Maple Esolutions Ltd. and Saffron Global Ltd. belong to Triton Corporation Ltd., which was involved in fraud, making their financial results unreliable. The Tribunal noted that various benches have excluded companies involved in fraud from the list of comparables. The assessee submitted that these issues were not addressed by the AO or the CIT(A).

Conclusion:
The Tribunal found that the matter required fresh adjudication at the TPO level, considering the unreliability of the financial results of the selected comparables due to fraud involvement. The TPO was directed to search for fresh comparables and determine the Arm's Length Price (ALP) of the international transaction for the assessment year, providing the assessee with due opportunity to be heard. The appeal filed by the assessee was allowed for statistical purposes.