2017 (11) TMI 1471 - AT - Income Tax

Margin calculation - inclusion of payment of arbitral award on behalf of the AE - rule of consistency - Held that - Payment on account of arbitration award cannot form part of the cost base for purpose of margin calculation. Ld. TPO is to examine the issue on factual basis by following the rule of consistency in the light of its order passed in AY 2012-13. So, grounds no.3 & 12 are determined in favour of the taxpayer for statistical purposes. Risk adjustment claim - Held that - The taxpayer in this case is entitled for risk adjustment to the net margin of comparables for bringing them at par with the taxpayer - Decided in favour of assessee.

Issues Involved:
1. Legality of referring the case to the Transfer Pricing Officer (TPO).
2. Validity of the assessment order and directions passed by the AO/TPO/Dispute Resolution Panel (DRP).
3. Confirmation of transfer pricing adjustment amounting to INR 17,60,73,335.
4. Consistency in the approach to international transactions compared to previous years.
5. Consideration of the India-Korea tax treaty.
6. Misunderstanding of the taxpayer's business model and risk profile.
7. Rejection of the taxpayer's economic analysis for determining the Arm's Length Price (ALP).
8. Selection of inappropriate comparables for the "support services" segment.
9. Use of incorrect filters by the AO/DRP/TPO.
10. Use of data not existing at the time of documentation preparation under Rule 10D.
11. Use of single-year data instead of multiple-year data for computing ALP.
12. Inclusion of reimbursement of expenses in operating revenue and costs.
13. Exclusion of third-party expenses in calculating operating profits/costs.
14. Lack of adjustments for differences in risk profile between the taxpayer and comparables.
15. Failure to apply the Proviso to section 92C of the Act and allow the benefit of a 5% variation in determining the ALP.

Issue-wise Detailed Analysis:

Issue 1: Legality of Referring the Case to the TPO
The taxpayer contended that referring the case to the TPO was erroneous and bad in law. However, this issue was not pressed during the hearing and thus remains unaddressed in the judgment.

Issue 2: Validity of the Assessment Order and Directions
The taxpayer argued that the assessment order and directions passed by the AO/TPO/DRP were invalid. This issue was also not pressed during the hearing and remains unaddressed.

Issue 3: Confirmation of Transfer Pricing Adjustment
The taxpayer contested the transfer pricing adjustment of INR 17,60,73,335. The taxpayer used the Transactional Net Margin Method (TNMM) and Operating Profit/Operating Cost (OP/OC) as the Profit Level Indicator (PLI). The TPO selected comparables with an average margin of 16.38% against the taxpayer's 9.01%. The taxpayer's claim for risk adjustment was rejected. The Tribunal concluded that the payment on account of the arbitration award should not form part of the cost base for margin calculation, following the rule of consistency as applied in AY 2012-13. The Tribunal directed the TPO to re-examine the issue factually.

Issue 4: Consistency in Approach to International Transactions
The taxpayer argued that the same international transactions were accepted at arm's length in previous years. The Tribunal emphasized the need for consistency, directing the TPO to follow the same approach as in AY 2012-13.

Issue 5: Consideration of the India-Korea Tax Treaty
The taxpayer contended that the AO/DRP/TPO did not consider the India-Korea tax treaty. This issue was not pressed during the hearing and remains unaddressed.

Issue 6: Misunderstanding of Business Model and Risk Profile
The taxpayer claimed that the AO/DRP/TPO misunderstood its business model and risk profile. This issue was not pressed during the hearing and remains unaddressed.

Issue 7: Rejection of Economic Analysis for ALP Determination
The taxpayer's economic analysis for ALP determination was rejected. This issue was not pressed during the hearing and remains unaddressed.

Issue 8: Selection of Inappropriate Comparables
The taxpayer argued that inappropriate comparables were selected for the "support services" segment. This issue was not pressed during the hearing and remains unaddressed.

Issue 9: Use of Incorrect Filters
The taxpayer contended that incorrect filters were used by the AO/DRP/TPO. This issue was not pressed during the hearing and remains unaddressed.

Issue 10: Use of Data Not Existing at the Time of Documentation Preparation
The taxpayer argued against the use of data not existing at the time of documentation preparation under Rule 10D. This issue was not pressed during the hearing and remains unaddressed.

Issue 11: Use of Single-Year Data Instead of Multiple-Year Data
The taxpayer contended that single-year data was used instead of multiple-year data. This issue was not pressed during the hearing and remains unaddressed.

Issue 12: Inclusion of Reimbursement of Expenses in Operating Revenue and Costs
The taxpayer argued that the reimbursement of expenses should not be added to operating revenue and costs. The Tribunal directed the TPO to follow a consistent policy and re-examine the issue factually, emphasizing that the payment on account of the arbitration award should not form part of the cost base for margin calculation.

Issue 13: Exclusion of Third-Party Expenses in Calculating Operating Profits/Costs
The taxpayer contended that third-party expenses should be excluded in calculating operating profits/costs. This issue was not pressed during the hearing and remains unaddressed.

Issue 14: Lack of Adjustments for Differences in Risk Profile
The taxpayer claimed risk adjustment due to differences in risk profiles between the taxpayer and comparables. The Tribunal, following precedents, directed that the taxpayer is entitled to risk adjustment to the net margin of comparables, bringing them on par with the taxpayer.

Issue 15: Failure to Apply the Proviso to Section 92C
The taxpayer argued that the AO/DRP/TPO failed to apply the Proviso to section 92C and allow a 5% variation in determining the ALP. This issue was not pressed during the hearing and remains unaddressed.

Conclusion:
The Tribunal allowed the appeal for statistical purposes, directing the TPO to re-examine the issues of transfer pricing adjustment and reimbursement of expenses, following the rule of consistency and considering risk adjustments. The judgment emphasized the need for a consistent approach and factual examination in line with previous years' assessments.

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