2022 (1) TMI 81 - AT - Income Tax

TP Adjustment - determination of ALP of international transaction in the nature of payment of management fees - Selection of MAM - HELD THAT - It is pertinent to mention here that there is no dispute on the legal proposition that if the TPO finds that the method applied by the appellant is not appropriate, it can carry out his own analysis however he has to follow the methodology as provided in Chapter-X of the Income-tax Act. As further be noted that the starting point for applying the CUP method as per the transfer pricing provisions is availability of the price of the same product or service in uncontrolled conditions and according to that the ALP of the product or service can be ascertained. Thus, the action of TPO of applying CUP method and at the same considering the value of such transaction as Nil in absence of comparable uncontrolled transactions, is in itself contradictory and without any basis/logic. Therefore, the contention of the TPO to apply CUP method as MAM is not tenable under the law. Hence, based on above, we disapprove the action of CIT(A) treating the management services provided by the AE to the appellant as duplicate service and consequent determining its ALP at Nil. The appellant succeeds on other grounds raised before us. The transfer pricing adjustment made by the TPO and upheld by CIT(A) is hereby deleted.

Summary

Issues Involved:
1. Transfer Pricing Adjustment on Account of Arm’s Length Price (ALP) for Intra Group Services (IGS)
2. Jurisdiction of the Transfer Pricing Officer (TPO) and Commissioner of Income-tax (Appeals) [CIT(A)]
3. Evidence and Documentation for Services Rendered
4. Application of Comparable Uncontrolled Price (CUP) Method
5. Commercial Expediency and Necessity of Services
6. Determination of ALP of Management Fees
7. Penalty Proceedings under Section 271(1)(c)

Detailed Analysis:

1. Transfer Pricing Adjustment on Account of Arm’s Length Price (ALP) for Intra Group Services (IGS):
The appellant, Metalsa India Private Limited, challenged the transfer pricing adjustment of ?69,65,962/- made by the TPO and upheld by the CIT(A) on account of ALP for IGS received from its parent company, Metalsa Mexico. The appellant argued that the TPO and CIT(A) erred in rejecting the "Other Method" used for benchmarking the transaction and instead applied the CUP method without cogent reasons. The TPO determined the ALP of IGS at NIL, alleging no economic benefit to the appellant and considering the services as duplicate.

2. Jurisdiction of the TPO and CIT(A):
The appellant contended that the TPO and CIT(A) exceeded their jurisdiction by determining the ALP of IGS at NIL based on the Benefit Test, which is outside the purview of the methods prescribed under Section 92C of the Income Tax Act. The TPO's role is to determine the ALP and not to judge the commercial expediency of the transactions.

3. Evidence and Documentation for Services Rendered:
The appellant provided several email correspondences, agreements, and invoices as evidence of the services rendered by the AE. The CIT(A) admitted these additional evidences but upheld the TPO's contention that the services were duplicate. The appellant argued that the services were distinct and not performed by the appellant itself or availed from any third party. The ITAT accepted the appellant's evidence, including email correspondences and invoices, as tangible material proving the receipt of services.

4. Application of Comparable Uncontrolled Price (CUP) Method:
The TPO applied the CUP method to determine the ALP of the IGS at NIL, arguing that no independent party would have made such payments under uncontrolled circumstances. The appellant argued that the TPO's action was arbitrary and not in line with Rule 10B(1)(a) of the Income Tax Rules, which requires comparable uncontrolled transactions for applying the CUP method. The ITAT found the TPO's application of the CUP method without comparable uncontrolled transactions to be contradictory and without basis.

5. Commercial Expediency and Necessity of Services:
The TPO questioned the necessity and commercial expediency of the services availed by the appellant from the AE. The ITAT referred to the judgment in EKL Appliances Ltd., stating that it is not open to the TPO to question the judgment of the assessee regarding the necessity of incurring the expenditure. The ITAT held that the necessity of entering into the agreement for IGS falls within the appellant's commercial wisdom and cannot be challenged by the revenue authorities.

6. Determination of ALP of Management Fees:
The appellant argued that the AE allocated the total cost incurred on group services to recipient entities based on budgeted sales without any markup. The ITAT noted that the AE charged only the actual cost, which was a small percentage of the total expenditure incurred by the AE. The ITAT disapproved the CIT(A)'s action of treating the management services as duplicate and determining the ALP at NIL. The transfer pricing adjustment of ?69,65,962/- was deleted.

7. Penalty Proceedings under Section 271(1)(c):
The appellant also raised a ground regarding the initiation of penalty proceedings under Section 271(1)(c) for alleged concealment of income. However, this issue was not adjudicated in detail as the main grounds were decided in favor of the appellant.

Conclusion:
The appeal of the assessee was allowed, and the transfer pricing adjustment of ?69,65,962/- made by the TPO and upheld by the CIT(A) was deleted. The ITAT held that the TPO and CIT(A) exceeded their jurisdiction, and the evidences provided by the appellant were sufficient to prove the receipt of services. The application of the CUP method by the TPO was found to be arbitrary and without basis. The necessity and commercial expediency of the services availed by the appellant were upheld as falling within the appellant's commercial wisdom.