2016 (5) TMI 578 - HC - Income Tax

Transfer pricing adjustment - whether the Tribunal is right in law in setting aside the issue of transfer pricing to the file of the TPO for reconsidering the issue on the adoption of the most appropriate method and to arrive at the ALP after making the adjustment after taking the appropriate comparables, as even for computation of ALP by adopting CUP method? - Held that - Even if we consider that under Section 92 of the Income Tax Act, such an exercise is available read with the decision of Delhi High Court in the case of EKL Appliances Ltd (2012 (4) TMI 346 - DELHI HIGH COURT ) then also, the Tribunal after examining the record has found that the services rendered were concerning the business and once the nexus is found and the factual aspect is considered by the Tribunal, it cannot be said that the Tribunal ought to have remanded the matter by keeping that question once again open for consideration by the TPO. Further, the Tribunal has rightly considered and examined the decision of Delhi High Court in case of EKL Appliances Ltd (supra). As such, in our view, no substantial question of law arises for consideration, as sought to be canvassed.

Summary

Issues:
1. Whether the Tribunal was correct in setting aside the issue of transfer pricing to the file of the TPO for reconsideration?
2. Whether the Tribunal was correct in holding that the TPO cannot examine the payment commensurate to the volume and quality of services?

Analysis:

Issue 1:
The appellants-Revenue raised substantial questions of law regarding the transfer pricing issue in ITA Nos. 492/15 and 642/2015. The Tribunal found that the assessee had not received any services from its Associated Enterprise (AE) as per the license agreement. However, after examining the documents showing advice given by the AE to the assessee on business issues, the Tribunal concluded that services were rendered. The Tribunal set aside the matter to the TPO for recomputing the Arm's Length Price (ALP) by considering the allocated expenses by the AE to the assessee. The Tribunal directed the TPO to adopt the most appropriate method and identify comparables for ALP computation.

Issue 2:
The Tribunal's decision was challenged by the appellants, contending that the Tribunal did not leave open the aspect of comparing the quantum of services rendered with the expenses incurred. The appellants argued that this comparison should have been part of the remanded matter to the TPO under Section 92 of the Income Tax Act. However, the High Court held that once the Tribunal had found a nexus between the services rendered and the business, there was no need to reexamine this aspect. The High Court dismissed the appeals, stating that no substantial question of law arose for consideration.

In conclusion, the High Court upheld the Tribunal's decision to remand the matter to the TPO for reconsideration of the transfer pricing issue based on the services rendered by the AE to the assessee. The Court found no error in the Tribunal's decision and dismissed the appeals.