2021 (8) TMI 1212 - AT - Income Tax

TP Adjustment - appropriate PLI for benchmarking the international transaction of rendering of business support services in respect of the overseas projects of the AE - not considering return on value added cost (ROVAC) - TPO opined the transaction in the present case is being compared is sales to AE and held the ROVAC cannot be used for the purposes of computing the PLI, as if would directly influence the PLI being in the denomination for computation of the rates - HELD THAT - The contention of the ld. AR is that the contract charges incurred by the assessee for the services taken from third parties and prayed to treat the assessee as trader. Therefore, in our opinion, the berry ratio becomes academic We deem it proper to remand the matter to the file of TPO for its fresh verification to decide whether the assessee is in the activities of business support service provider or in the trading activities or in the mix of both i.e. business support service provider and trading activities. The assessee is liberty to file all evidences, if any, in support of its claim and the TPO shall decide as indicated above. Appeal of assessee is allowed for statistical purpose.

Issues:
1. Transfer pricing adjustments based on return on value added cost (ROVAC) for business support services.
2. Role of the assessee in international transactions and classification as a business support service provider or trading activities.
3. Rejection of ROVAC as Profit Level Indicator (PLI) under TNMM.
4. Dismissal of certain grounds by the assessee and direction for examination of MAT Credit set off.
5. Initiation of penalty proceedings under section 271(1)(c) of the Act.

Issue 1: Transfer pricing adjustments based on return on value added cost (ROVAC) for business support services:
The appeal by the assessee was against the final assessment order passed by the AO for the assessment year 2012-13. The assessee's primary contention was regarding the selection of comparables for benchmarking the international transaction. The TPO proposed adjustments based on the Profit Level Indicator (PLI) and calculated an adjustment amount. The DRP rejected the assessee's claim regarding ROVAC and held that the PLI as claimed was not applicable to the case.

Issue 2: Role of the assessee in international transactions and classification as a business support service provider or trading activities:
The assessee's role in international transactions was to coordinate logistics for supply of materials and services procured from third-party suppliers for the AE's projects. The assessee argued for considering its services as trading activities rather than business support services. The TPO objected to this classification and maintained that the assessee was engaged in business support services. The DRP sought a remand report and confirmed the classification as a business support service provider.

Issue 3: Rejection of ROVAC as Profit Level Indicator (PLI) under TNMM:
The TPO did not accept ROVAC as the appropriate PLI for the transaction compared, which involved sales by the assessee to its AE. The TPO calculated the PLI based on operating profit to total cost, rejecting the assessee's methodology. The matter was remanded to the TPO for further verification to determine the nature of the assessee's activities.

Issue 4: Dismissal of certain grounds by the assessee and direction for examination of MAT Credit set off:
The assessee did not press ground numbers 6 and 11, leading to their dismissal. Other grounds raised by the assessee were deemed academic in light of the decision on earlier issues. The direction was given to examine the set off of brought forward MAT Credit.

Issue 5: Initiation of penalty proceedings under section 271(1)(c) of the Act:
The assessee challenged the initiation of penalty proceedings under section 271(1)(c) of the Act. The challenge was deemed premature at that stage, and ground number 20 raised in the appeal was dismissed. The appeal of the assessee was allowed for statistical purposes.

This judgment addressed various issues related to transfer pricing adjustments, classification of the assessee's activities, rejection of ROVAC as a PLI, dismissal of certain grounds, examination of MAT Credit set off, and initiation of penalty proceedings. The decision provided detailed analysis and directions for further examination, ensuring a comprehensive review of the issues involved in the case.

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