2018 (5) TMI 515 - AT - Income Tax

Transfer pricing addition - comparable selection criteria - functional similarity - Held that - Assessee was engaged in the business of labor assisted assembly process of semi-conductor devices of different types which were mainly used in general power management applications. Semi-conductor manufacturing involved two phases of production-Wafer Fabrication and Assembly. The assessee was primarily an assembler of semi-conductor devices such as rectifiers, discrete and modules which were essentially low technology activity involving manual labor operations. Thus companies functionally dissimilar with that of assessee need to be deselected from final list.

Issues Involved:
1. Transfer pricing adjustment
2. Rejection of certain comparable companies
3. Non-consideration of correct operating margins
4. Non-exclusion of provision for inventory obsolescence
5. Treatment of loss on sale of fixed assets
6. Non-consideration of risk adjustment
7. Transfer pricing adjustment without benefit of +/-5%
8. Additional deduction on account of depreciation on projector and disallowance of provisions in earlier years

Detailed Analysis:

Transfer Pricing Adjustment:
The assessee contested the final assessment order for AY 2008-09, which included a TP adjustment of ?16.13 Crores and a stock obsolescence adjustment of ?2.58 Crores. The primary issue was the determination of the Arm's Length Price (ALP) for goods exported to its AE in Italy, using the Transactional Net Margin Method (TNMM) with the Profit Level Indicator (PLI) as OP/TC. The assessee's PLI was 6.90%, within the +/-5% tolerance range, but the Ld. TPO adjusted it to -1.05% after including provisions for inventory obsolescence and loss on sale of fixed assets.

Rejection of Certain Comparable Companies:
The Ld. TPO rejected several comparables selected by the assessee, considering them functionally dissimilar. The TPO accepted five companies as comparables, leading to a mean PLI of 17.20%. The assessee argued that these comparables were accepted in subsequent years, but the tribunal noted that TP studies are unique to each year and depend on the specific business environment and risks. The issue was remitted back to the Ld. AO/TPO for re-evaluation.

Non-Consideration of Correct Operating Margins:
The assessee pointed out errors in the margins of comparables adopted by the Ld. TPO. The Ld. DRP directed the TPO to consider the assessee's submissions and rectify any errors. The tribunal endorsed this direction, allowing the ground for statistical purposes.

Non-Exclusion of Provision for Inventory Obsolescence:
The assessee treated the provision for inventory obsolescence of ?6.18 Crores as non-operating, but the Ld. TPO included it in the operating cost, reducing the PLI to -1.05%. The Ld. DRP upheld this view, noting that the provision was not separately shown in the profit and loss account. The tribunal remitted the issue back to the Ld. AO/TPO for re-evaluation, directing the assessee to substantiate its claim.

Treatment of Loss on Sale of Fixed Assets:
The Ld. DRP agreed with the assessee that the loss on sale of fixed assets should not form part of the operating cost. However, due to a lack of requisite submissions, the adjustment was not made in the final assessment order. The tribunal directed the Ld. AO to exclude this item while computing the PLI, allowing the ground for statistical purposes.

Non-Consideration of Risk Adjustment:
The assessee sought risk adjustment, arguing it bore limited business risks compared to full-fledged risk-bearing comparables. The Ld. DRP rejected this, noting the lack of complete financial details of comparables. The tribunal concurred, dismissing the ground as the assessee did not provide sufficient evidence.

Transfer Pricing Adjustment Without Benefit of +/-5%:
The Ld. DRP rejected the benefit of +/-5% as per the erstwhile proviso to Section 92C(2), based on a Board’s Circular applicable to pending proceedings as of 01/10/2009. The tribunal directed the lower authorities to grant adjustments within the framework of law while determining the ALP, allowing the ground for statistical purposes.

Additional Deduction on Account of Depreciation on Projector and Disallowance of Provisions in Earlier Years:
The assessee sought additional deduction for depreciation on projectors and relief for disallowed provisions from earlier years. The Ld. DRP directed the Ld. AO to verify these claims. The tribunal endorsed this direction, allowing the ground for statistical purposes.

Conclusion:
The appeal was partly allowed for statistical purposes, with several issues remitted back to the Ld. AO/TPO for re-evaluation and necessary adjustments as per the tribunal's directions. The tribunal emphasized the need for the assessee to provide requisite details to substantiate its claims.

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