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2022 (1) TMI 679 - AT - Income TaxTP Adjustment - TPO has applied benefit test in dealing with the issue of ALP of payment for SAP license - HELD THAT - Discussions by the TPO are not at all sustainable in the context of determination of ALP in Transfer Pricing Adjustment. This has been held by Hon ble jurisdictional High Court in several case laws as referred by the Ld. Counsel of the assesse in the submissions as above. Furthermore, determination of ALP as nil by applying the benefit test without resorting to the methodology of determining ALP as per the methodology set out in Chapter X of the Act and the relevant Rules has also been held to unsustainable. In these circumstances, the determination of ALP as nil has been held to be not sustainable in the case laws from Hon ble Bombay High Court as above including CIT vs.Lever India Exports Ltd. 2017 (2) TMI 120 - BOMBAY HIGH COURT and CIT vs Johnson Johnson Ltd. 2017 (3) TMI 1520 - BOMBAY HIGH COURT In these case laws, it was expounded that TPO is mandated by law to determine the ALP by following one of the methods prescribed u/s. 92C read with rule 10B. When No such exercises is carried out by the TPO, the determination at Nil of the ALP was held to be not sustainable. The above said case laws are fully applicable on the fact of the case. Thus we hold that authorities below have fatally erred in applying the benefit test as rightly contended by the Ld. Counsel of the assessee. Furthermore, it has been submitted that after applying the benefit test authorities below have brushed aside the details submitted by the assessee. We are in agreement that authorities below have erred in holding the ALP at nil on the ground that relevant documents have not been submitted. In our considered opinion, the assessee has discharged the onus caste upon it. The case laws as referred above are duly applicable on this issue also. The determination of ALP at nil in this regard also is not sustainable on the touchstone of the aforesaid case laws as the determination of ALP at nil without following one of the methods prescribed u/s. 92C r.w.Rule 10B has been held to be non sustainable. Accordingly, we set aside the orders of the authorities below, and decide the issue in favour of the assessee.
Issues Involved:
1. Adjustment to the transfer price proposed by the Transfer Pricing Officer (TPO). 2. Arm's length price (ALP) determination for SAP license payment. 3. ALP determination for cost-sharing expenses. 4. ALP determination for reimbursement of expenses. 5. Application of the benefit test by the TPO. 6. Non-consideration of additional evidence by the Dispute Resolution Panel (DRP). 7. Initiation of penalty proceedings against the assessee. Issue-wise Detailed Analysis: 1. Adjustment to the Transfer Price Proposed by the TPO: The assessee contested the adjustment of ?2,73,39,569, which included payments for SAP licenses, cost-sharing expenses, and reimbursement of expenses. The TPO had proposed these adjustments, and the DRP had upheld them. The primary contention was that these transactions were not at arm's length as per Sections 92C(1) and 92C(2) of the Income-tax Act, read with Rule 10D of the Income-tax Rules, 1962. 2. ALP Determination for SAP License Payment: The TPO disallowed the SAP license payment of ?12,80,079 on the grounds that the software was not required and did not benefit the assessee. The TPO argued that the business activities of the assessee did not necessitate such an expensive software and that the cost was imposed by the parent company. The assessee provided evidence, including agreements and debit notes, to show that the SAP licenses were purchased in bulk to avail volume discounts and were allocated based on the number of users. However, the TPO determined the ALP as NIL, stating that the assessee failed to demonstrate the additional benefits from the SAP license. 3. ALP Determination for Cost-Sharing Expenses: The TPO disallowed the cost-sharing expenses of ?2,56,94,820, arguing that the assessee failed to provide evidence of the actual costs incurred by the parent company and the basis for cost allocation. The TPO noted that the assessee did not demonstrate any utilization of services in its business from the cost-sharing imposed by the parent company. The assessee contended that these expenses were for central support services, R&D, marketing support, and centralized IT services, and were reimbursed on a cost-to-cost basis. Detailed workings and a certification from PricewaterhouseCoopers were provided to support the cost allocation methodology. 4. ALP Determination for Reimbursement of Expenses: The TPO also disallowed the reimbursement of expenses amounting to ?3,64,670, determining the ALP as NIL. The TPO argued that the assessee failed to produce evidence that any services were availed or that any expenses were incurred by the AE. The assessee maintained that these expenses were reimbursed on a cost-to-cost basis and were benchmarked under the Comparable Uncontrolled Price (CUP) method. 5. Application of the Benefit Test by the TPO: The TPO applied the benefit test to determine the ALP, arguing that the assessee did not need the SAP software and that it did not add value to the business. The Tribunal found this approach unsustainable, citing several case laws from the jurisdictional High Court, including CIT vs. Lever India Exports Ltd. and CIT vs. Johnson & Johnson Ltd. These cases established that the TPO must determine the ALP using one of the prescribed methods under Section 92C read with Rule 10B, and not merely by applying a benefit test. 6. Non-Consideration of Additional Evidence by the DRP: The assessee submitted additional evidence to the DRP, including agreements, benefits derived, and email correspondences. However, the DRP upheld the TPO's adjustments, stating that no evidence was provided. The Tribunal noted that the DRP failed to consider the voluminous data submitted by the assessee, including the allocation keys and certification from PricewaterhouseCoopers. 7. Initiation of Penalty Proceedings Against the Assessee: The assessee also contested the initiation of penalty proceedings by the AO. However, this issue was not elaborated upon in the Tribunal's judgment. Tribunal's Decision: The Tribunal held that the TPO's application of the benefit test and determination of ALP as NIL without following the prescribed methods was unsustainable. The Tribunal found that the assessee had provided adequate details and evidence to support the transactions. Consequently, the Tribunal set aside the orders of the authorities below and decided the issues in favor of the assessee, allowing the appeal. Conclusion: The Tribunal's judgment emphasized the necessity for the TPO to follow the prescribed methods for determining ALP and not to rely solely on the benefit test. The Tribunal also highlighted the importance of considering all evidence submitted by the assessee in transfer pricing cases.
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