2016 (1) TMI 933 - AT - Income Tax

Transfer pricing adjustment - whether the services received by the assessee should be considered to be arm s length under TNMM - Held that - With regard to PSM and RIS segments, the markup charged by the AEs is within the /-5% range, allowed under second proviso to section 92C of the Indian Income Tax Act, 1961. Accordingly, these services can be considered to be at arm s length And with regard to of GVP services, VIPFS services and Ticketing Hub Services, the service charges paid by the Assessee, represents the actual cost incurred by the AEs, without application of any markup. Accordingly, these can be considered to be at arm s length. Based on the above discussion, we are of the opinion that the services received by the assessee should be considered to be arm s length under TNMM. We have perused the OECD guidelines which has recommend an aggregate bench marking approach in situation, where the underline transactions are closely linked to the core business operation. Principle of aggregation, is a well-established rule in transfer pricing analysis. This principle seeks to combine all closely linked transactions wherein arm s length price can be determined for a number of transactions taken together. The OECD Guidelines recommends an aggregate benchmarking approach, in situations where, the underlying transactions are closely linked to the core business operations. The assessee is predominantly a manufacturer and the services received by the assessee from its AEs are intrinsically linked to the core business operations of the assessee, in the following form i. Based on the support provided by the AEs in terms of marketing services and strategic services, the assessee is able to achieve higher sales, both in terms of higher sales quantity and sale prices. ii. Based on the support provided by the assessee in terms of operations and logistics the assessee has been able to procure raw materials at lower costs. Accordingly, the impact of such support services is received by the assessee in the form of lower direct costs. We observe that there exists a direct nexus between the revenue earned/cost incurred by the Assessee and the majority intra-group services received, it would be incorrect to analyze the intra-group service received as a single element of cost in isolation. In this regard, the Assessee would like to place reliance on the following rulings, wherein aggregation of closely interlinked international transactions. We are of the opinion that, ascertaining whether a service has actually benefitted the taxpayer or not is not within the prerogative of the Tax Authorities. To avail a service or not is a commercial decision which cannot be challenged by the Tax Authorities. - Decided in favour of assessee.

Summary

Issues Involved:
1. Determination of the Arm's Length Price (ALP) for the service charges paid by the assessee to its Associated Enterprises (AEs).
2. Appropriateness of the Transactional Net Margin Method (TNMM) versus the Comparable Uncontrolled Price (CUP) method for benchmarking international transactions.
3. Consideration of whether the transactions entered into by the assessee with its AEs are interlinked and should be aggregated.

Issue-wise Detailed Analysis:

1. Determination of the Arm's Length Price (ALP) for the Service Charges Paid by the Assessee to its Associated Enterprises (AEs):
The assessee, a subsidiary of Avery Dennison Corporation, USA, engaged in manufacturing and selling pressure-sensitive materials and retail information systems, paid service charges to its AEs amounting to Rs. 4,58,27,982/-. The Transfer Pricing Officer (TPO) rejected the assessee's Transfer Pricing (TP) study, which used the Transactional Net Margin Method (TNMM) to determine the ALP, and instead applied the Comparable Uncontrolled Price (CUP) method, determining the ALP at NIL. The TPO's rationale was that the services rendered did not result in any benefit to the assessee. However, upon appeal, the CIT(A) partially accepted the assessee's claim, reducing the TP adjustment to Rs. 1,23,53,192/- by recognizing certain services as beneficial.

2. Appropriateness of the Transactional Net Margin Method (TNMM) versus the Comparable Uncontrolled Price (CUP) Method for Benchmarking International Transactions:
The assessee argued that TNMM was the most appropriate method for benchmarking its international transactions, as its business operations and the services received from its AEs were closely interlinked. The CIT(A) accepted TNMM for certain services but upheld the TPO's use of CUP for others. The Tribunal, however, found that the CIT(A) had erred by not consistently applying TNMM across all services. It was noted that the authorities had accepted TNMM as the Most Appropriate Method (MAM) in subsequent years, and the OECD guidelines recommend an aggregate benchmarking approach for closely linked transactions. The Tribunal concluded that TNMM should be used for all services, as it provided a more reliable means of determining the ALP.

3. Consideration of Whether the Transactions Entered into by the Assessee with its AEs are Interlinked and Should be Aggregated:
The Tribunal observed that the services received by the assessee were intrinsically linked to its core business operations, such as marketing, operations, logistics, and financial services, which contributed to higher sales and lower costs. The Tribunal emphasized the principle of aggregation, supported by various judicial precedents, which recommends combining closely linked transactions for a more accurate determination of the ALP. The Tribunal held that the services provided under the Intercompany Service Agreement should not be unbundled and must be considered as a whole. Consequently, the Tribunal found that the services received by the assessee were at arm's length under TNMM.

Conclusion:
The Tribunal allowed the assessee's appeal, holding that the services received from its AEs should be benchmarked using TNMM, as they were closely linked to the core business operations. The Tribunal also dismissed the Revenue's appeal, finding no infirmity in the CIT(A)'s partial acceptance of the assessee's claims. The Tribunal's decision reinforced the importance of considering the commercial realities and the intrinsic linkages between transactions in transfer pricing analyses.