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2022 (8) TMI 386 - HC - Income TaxTP Adjustment - selection of MAM - Tribunal held that resale price method adopted by the assessee in determining its ALP of international transactions with AE, is not applicable, while remanding the matter back to the TPO for fresh determination - HELD THAT - Tribunal was of the view that the resale price method adopted by the assessee in determining its ALP of international transactions with AE is not applicable. At the same time, the Tribunal was of the further view that the CUP method adopted by the TPO is also not applicable, because the TPO has compared the price of bulk drugs and intermediates sold to non-AEs in small quantity on trial basis, located in Germany, Vietnam, Greece, Japan, Turkey, Argentina, Mexico, Saudi Arabia, Malaysia and Thailand with the AE located in USA on wholesale basis. Thus, it is evident that there were some contradictions in the findings of the Tribunal, with regard to the method adopted by the TPO in determining the ALP. However, the order passed by the Tribunal, in remanding the matter to the TPO for fresh determination of ALP, in the facts and circumstances of the case, need not be interfered, in the considered opinion of this court. Transfer Pricing Officer is directed to redo the entire process of determination of ALP of international transactions with AE, without being influenced by any observation made by the Tribunal and render an independent finding with regard to the issues involved herein, after granting due opportunity of hearing to the appellant/assessee to put forth its case.
Issues:
1. Interpretation of transfer pricing provisions under the Income Tax Act, 1961. 2. Application of resale price method vs. Comparable Uncontrolled Price (CUP) Method for determining Arms Length Price (ALP) in international transactions with Associated Enterprises (AE). 3. Evaluation of Tribunal's decision to remand the matter to Transfer Pricing Officer for fresh determination of ALP. Issue 1: Interpretation of transfer pricing provisions under the Income Tax Act, 1961: The appellant challenged the order of the Transfer Pricing Officer (TPO) regarding the determination of the arm's length price of international transactions with Associated Enterprises (AE). The Tribunal remanded the matter to the TPO for fresh determination. The appellant contended that the Tribunal erred in setting aside the TPO's order without specifying the statutorily prescribed modes in Rule 10B of the Income Tax Rules, 1962. The Tribunal's decision was based on the lack of proper justification for rejecting the plea for adoption of the resale price method, which the appellant argued was an approved method under Rule 10B. However, the respondent argued that the CUP method was more appropriate for the international transactions in question. The High Court directed the TPO to redo the determination process independently, without being influenced by the Tribunal's observations. Issue 2: Application of resale price method vs. Comparable Uncontrolled Price (CUP) Method: The appellant, engaged in manufacturing and selling bulk drugs, argued that the resale price method was the most appropriate for determining the ALP in transactions with AE, particularly with a distributor in the USA. The appellant maintained that the provisions of Rule 10B supported the use of the resale price method. In contrast, the respondent contended that the CUP method was more suitable for the transactions due to the appellant's role as a manufacturer. The Tribunal found contradictions in the methods used by the TPO but ultimately remanded the matter for fresh determination. The High Court upheld the Tribunal's decision, emphasizing the need for an independent evaluation by the TPO. Issue 3: Evaluation of Tribunal's decision to remand the matter to Transfer Pricing Officer: The Tribunal's decision to remand the matter to the TPO for fresh determination of the ALP was challenged by the appellant. The Tribunal's reasoning, as mentioned in paragraph 29 of the order, highlighted the inapplicability of both the resale price method adopted by the appellant and the CUP method used by the TPO. Despite some contradictions in the Tribunal's findings, the High Court upheld the decision to remand the matter for an independent evaluation by the TPO. The High Court directed the TPO to conduct a thorough assessment without being influenced by the Tribunal's observations, granting the appellant an opportunity to present their case. Consequently, the tax case appeals were disposed of without costs. This detailed analysis of the judgment addresses the interpretation of transfer pricing provisions, the choice between the resale price method and the CUP method, and the evaluation of the Tribunal's decision to remand the matter for fresh determination of the ALP.
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