2016 (1) TMI 451 - AT - Income Tax

Transfer pricing adjustment - TPO take the amount of ALP at NIL - determination of Management Consultancy Fee - mark up computation - Held that - What the TPO has missed is with reference the amounts other than foreign exchange loss. In the absence of any comparable figures and in the absence of any further enquiry and having the fact that services have been rendered to assessee as accepted by DRP also TPO cannot take the amount of ALP at NIL ignoring the payment by assessee of US 4, 27, 000. As per the agreement all the costs incurred by the DQE Mauritius with 5% markup had to be charged to assessee. Therefore as per the details furnished by assessee before the TPO the actual management fee of US 4, 27, 000 with administration charges of US 14000 and markup of 5% at the exchange value as on the date of 31-03-2008 can be considered as service charges for the intra group services rendered. This can be taken as ALP. Therefore modifying the order of TPO we determine the Management Consultancy Fee as detailed above and AO is directed to modify the order accordingly. In arriving at the above we have considered the OECD Transfer Pricing guidelines 2010 Chapter-VII pertaining to special considerations for intra group services . Considering the assessee s agreement with DQE Mauritius which in turn has an agreement with DQ Entertainment Plc and the reimbursement of cost from one company to another we agree with the TPO s observation that foreign exchange loss in financial transactions cannot be considered as service charge for the intra group and therefore we after considering the facts of the case restrict the amount to the actual management fees charged by the DQE Mauritius along with other cost of administration and audit and mark up at 5%.

Summary

Issues Involved:
1. Treatment of Arm's Length Price (ALP) for Management Consultancy Fees.
2. Documentation and evidence for Management Consultancy Fees.
3. Application for rectification under Section 154 regarding reimbursement of commission.

Issue-Wise Detailed Analysis:

1. Treatment of Arm's Length Price (ALP) for Management Consultancy Fees:
The Assessing Officer (AO) and Transfer Pricing Officer (TPO) treated the Arm's Length Price (ALP) for management consultancy fees paid by the assessee to its Associated Enterprise (AE) as NIL. The TPO questioned the commercial wisdom behind the expenditure of Rs. 3,19,23,085/-. The TPO's conclusion was based on the benefit test and the inability of the assessee to substantiate the services rendered by the AE. The Dispute Resolution Panel (DRP) accepted that services were rendered by the AE, but remanded the matter to the TPO for further examination of detailed budgeting and documentation. The TPO, upon re-examination, upheld the NIL ALP determination. However, the ITAT found that the TPO failed to consider the actual management fees and administrative charges, and directed the AO to consider US$ 4,27,000 plus administration charges of US$ 14,000 with a 5% markup as the ALP.

2. Documentation and Evidence for Management Consultancy Fees:
The TPO argued that the assessee did not provide detailed documentation to justify the management consultancy fees. The DRP, however, noted that services were indeed rendered, referencing the decision in McCann Erickson India P. Ltd. The ITAT observed that the TPO's analysis included costs unrelated to management consultancy services, such as foreign exchange losses. The ITAT concluded that the actual management fees and associated costs, excluding foreign exchange losses, should be considered for ALP determination. The ITAT emphasized the need for detailed budgeting and documentation, as per the OECD guidelines and the agreement between the assessee and AE.

3. Application for Rectification under Section 154 Regarding Reimbursement of Commission:
The assessee filed an application under Section 154 for rectification against the TPO's order disallowing Rs. 73,62,023/- as reimbursement of commission, which was not debited to the profit and loss account but routed through the balance sheet. The DRP accepted the assessee's contention that this amount was a capital item and not intra-group services, and thus should not be added to the taxable income. The ITAT directed the AO to exclude this amount from the total TP adjustment, as the DRP had already provided clear directions.

Conclusion:
The ITAT partly allowed the appeal, directing the AO to consider the actual management consultancy fees and associated costs, excluding foreign exchange losses, for ALP determination. The ITAT also directed the AO to exclude the Rs. 73,62,023/- reimbursement of commission from the TP adjustment, as per the DRP's directions. The judgment emphasized the importance of detailed documentation and adherence to OECD guidelines in transfer pricing matters.