2016 (6) TMI 557 - AT - Income Tax

Transfer pricing adjustment - relevancy of method adopted by the Transfer Pricing Officer for disallowing the claim of the assessee - adoption of transfer pricing study made by the assessee - Held that - Transfer Pricing Officer called for the details relating to services rendered by the Associate Enterprise item-wise along with costs incurred by the Associate Enterprise. Without examining further the services rendered by the Associate Enterprise, the Transfer Pricing Officer has simply observed that the services rendered are advice and discussion in nature, therefore, volume and quality of services are disproportionate to the payment made by the assessee. It is not known how the Transfer Pricing Officer came to know that the volume and quality of services received by the assessee was disproportionate to its payment. The Transfer Pricing Officer has not taken any pain to identify uncontrolled transaction between two independent entities. In the absence of any comparison of the transaction with transaction carried out in a uncontrolled market, this Tribunal is of the considered opinion that the Transfer Pricing Officer cannot independently come to a conclusion that volume and quality of services was disproportionate to the payment made by the assessee. The matter may be totally different if the Transfer Pricing Officer was able to identify the uncontrolled transaction between the enterprises entering into such transaction which would materially affect the price in the open market. In this case, such an exercise was not made by the Transfer Pricing Officer. The Dispute Resolution Panel has, therefore, rightly found that the method adopted by the Transfer Pricing Officer for disallowing the claim of the assessee was not justified. As rightly observed by the Dispute Resolution Panel, the Transfer Pricing Officer has not brought on record the base on which he estimated the Arm s Length Price at 25%, when Rule 10B(c) provides for method of determining the Arm s Length Price. This Tribunal is of the considered opinion that estimation of the services rendered and costs for such services may be outside the scope of transfer pricing adjustment. Without identifying the comparable cases, this Tribunal is of the considered opinion that estimation of the disallowance without any base is not called for. Therefore, the Dispute Resolution Panel has rightly upheld the transfer pricing study made by the assessee. This Tribunal do not find any reason to interfere with the order of the lower authority and accordingly the same is confirmed. - Decided against revenue.

Summary

Issues:
Transfer pricing adjustment based on management service fee paid to Associate Enterprise using Transaction Net Margin Method vs. CUP method.

Analysis:
The appeal addressed the dispute over the appropriate method for transfer pricing adjustment concerning a management service fee paid by the assessee to its Associate Enterprise. The Revenue contended that the Transfer Pricing Officer disallowed a portion of the fee, citing that the services rendered did not justify the payment made. The Revenue favored the CUP method over the Transaction Net Margin Method, emphasizing the need for an independent examination of the transaction. The Dispute Resolution Panel concurred with the practicality of the CUP method, leading to a downward adjustment in the fee. However, the assessee argued against the estimation of the fee, asserting that the Arm's Length Price should be determined through a comparison with comparable uncontrolled prices. The assessee challenged the Transfer Pricing Officer's estimation of 25% of the fee, highlighting the lack of clarity in the assessment process.

The Tribunal delved into the legal framework, citing Rule 10B of Income-tax Rules, which outlines methods for determining the Arm's Length Price under Section 92C of the Income-tax Act, 1961. It differentiated between the Transaction Net Margin Method and the CUP method, emphasizing the need for comparing services received by the assessee with those in uncontrolled transactions. The Tribunal critiqued the Transfer Pricing Officer for not identifying comparable uncontrolled transactions before making the adjustment. It noted the lack of evidence supporting the disproportionality of services to payment and criticized the estimation of the fee without a proper basis. The Tribunal upheld the Dispute Resolution Panel's decision, emphasizing the importance of a thorough comparison in transfer pricing adjustments. Ultimately, the Tribunal dismissed the Revenue's appeal, affirming the lower authority's order.

In conclusion, the judgment highlighted the significance of a meticulous analysis in transfer pricing adjustments, stressing the need for a comparative assessment of services to determine the Arm's Length Price accurately. The case underscored the importance of following established guidelines and conducting a detailed examination before making any adjustments, thereby ensuring fairness and compliance with transfer pricing regulations.