Role of the Transfer Pricing Officer in Ensuring Arm’s Length Compliance : Clause 166 of the Income Tax Bill, 2025 Vs. Section 92CA of the Income-tax Act, 1961

Clause 166 Reference to Transfer Pricing Officer.

Income Tax Bill, 2025

Introduction

Clause 166 of the Income Tax Bill, 2025 introduces a comprehensive framework for the reference of international and specified domestic transactions to the Transfer Pricing Officer (TPO) for the determination of the arm's length price (ALP). This provision, embedded within the special provisions relating to avoidance of tax, closely mirrors and seeks to update the existing regime under section 92CA of the Income-tax Act, 1961. Both provisions play a pivotal role in India's transfer pricing regime, aiming to ensure that cross-border and certain domestic transactions between related parties are conducted at market value, thereby preventing profit shifting and base erosion.

This commentary systematically examines Clause 166, analyzing its structure, intent, and operational mechanics, followed by a detailed comparative analysis with Section 92CA. The discussion highlights similarities, differences, innovations, and potential implications for taxpayers, tax authorities, and the broader regulatory framework.

Objective and Purpose

The legislative intent behind both Clause 166 and Section 92CA is to empower tax authorities to scrutinize transactions between associated enterprises and specified domestic entities, ensuring that the pricing of such transactions reflects the arm's length standard. This is crucial for curbing tax avoidance strategies that exploit transfer pricing rules to shift profits out of India or manipulate taxable income.

The framework is designed to:

• Provide a systematic process for the Assessing Officer (AO) to refer transactions for transfer pricing scrutiny.
• Lay down procedural safeguards and timelines for the determination of ALP by the TPO.
• Allow for consistency and certainty in transfer pricing determinations across multiple years, subject to prescribed conditions.
• Enable rectification, oversight, and guidance mechanisms to address ambiguities and practical difficulties.

Detailed Analysis of Clause 166

1. Reference to Transfer Pricing Officer (Sub-sections 1 to 3)

Clause 166(1) authorizes the AO to refer the determination of ALP to the TPO where the assessee has entered into an international or specified domestic transaction and the AO deems it necessary or expedient, subject to prior approval of the Principal Commissioner or Commissioner. This mirrors the structure of Section 92CA(1), retaining the dual conditions of a qualifying transaction and administrative approval.

Sub-sections (2) and (3) introduce an important caveat: if the TPO has declared a taxpayer's option under sub-section (9) as valid for a tax year, no reference for ALP determination shall be made for that year. If such a reference is inadvertently made, it is deemed never to have been made. This mechanism aligns with the safe harbor/advance pricing arrangement (APA) concepts, aiming to reduce litigation and provide certainty.

2. Notice and Hearing Process (Sub-section 4)

Upon reference, the TPO must serve a notice to the assessee, requiring the production of evidence supporting the taxpayer's ALP determination. This procedural safeguard ensures due process and is consistent with principles of natural justice. The language closely tracks Section 92CA(2).

3. Discovery of Additional Transactions (Sub-section 5)

Clause 166(5) empowers the TPO to apply the same scrutiny to any international or specified domestic transaction that comes to notice during proceedings, even if not originally referred or reported. This is a critical anti-avoidance tool, preventing taxpayers from omitting transactions in their reports. The provision is analogous to Section 92CA(2A) and (2B), though the Bill consolidates these elements for clarity.

4. Determination of Arm's Length Price (Sub-section 6)

The TPO is mandated to determine ALP after considering all evidence, including taxpayer submissions and any information required by the TPO, and to communicate the order to both the AO and the assessee. The reference to section 165(4) in the Bill indicates that the determination must be in accordance with the prescribed transfer pricing methods. This process is functionally identical to Section 92CA(3).

5. Timelines for Order (Sub-sections 7 and 8)

The TPO's order must be made at least sixty days before the expiry of the AO's limitation period for assessment or reassessment, as detailed in sections 286 or 296. If the available period is less than sixty days due to specific circumstances, it is extended to sixty days. This ensures that the AO has sufficient time to incorporate the TPO's findings. The structure is similar to Section 92CA(3A) and its proviso, though the Bill references updated assessment provisions.

6. Multi-Year Application of ALP Determination (Sub-sections 9, 10, and 12)

A significant innovation is the explicit mechanism for the taxpayer to opt for the application of a determined ALP to similar transactions for the next two consecutive tax years, subject to prescribed conditions and validation by the TPO. This mirrors the new sub-section (3B) in Section 92CA (inserted by Finance Act, 2025), reinforcing the policy objective of reducing repetitive disputes and providing certainty. However, the Bill clarifies that this does not apply to proceedings under Chapter XVI-B, which deals with special assessment procedures.

Sub-section (12) mandates that, upon a valid option, the TPO must examine and determine ALP for similar transactions in the two subsequent years, and the AO must recompute total income accordingly. This is a procedural enhancement, ensuring a seamless extension of certainty across years.

7. Implementation and Rectification (Sub-sections 11 and 13)

The AO is required to compute total income in conformity with the TPO's ALP determination. The TPO is also empowered to amend his order to rectify any mistake apparent from the record, with a corresponding obligation for the AO to amend the assessment order. The Bill references section 287 for rectification, while the 1961 Act refers to section 154, but the substantive effect is the same.

8. Powers of the Transfer Pricing Officer (Sub-section 14)

The TPO is vested with investigative powers equivalent to those u/ss 246(1)(a) to (d), 252(1)(a), or 253, enabling effective inquiry and evidence gathering. This is analogous to the powers u/s 92CA(7), which references sections 131, 133, and 133A.

9. Guidelines and Oversight (Sub-sections 15 to 17)

The Central Board of Direct Taxes (CBDT) is authorized to issue guidelines, with prior Central Government approval, to resolve difficulties in implementing the multi-year ALP regime. Such guidelines must be issued within two years from 1 April 2026 and be laid before Parliament, subject to modification or annulment. These provisions ensure administrative flexibility and legislative oversight, paralleling Section 92CA(11) and (12).

10. Definition of Transfer Pricing Officer (Sub-section 18)

The Bill defines the TPO as a Joint Commissioner, Deputy Commissioner, or Assistant Commissioner authorized by the Board, mirroring the definition in Section 92CA Explanation.

Practical Implications

For Taxpayers

• Certainty and Reduced Litigation: The option to have ALP determinations apply for three years (the year determined plus two subsequent years) offers predictability, reducing the compliance burden and the risk of repetitive disputes.
• Procedural Safeguards: The requirement of notice and opportunity to be heard ensures fairness. Taxpayers must maintain robust documentation and be prepared for scrutiny of all related-party transactions, including those not reported.
• Compliance Obligations: The expanded reach of the TPO to unreported transactions increases the importance of accurate and comprehensive transfer pricing documentation.

For Tax Authorities

• Administrative Efficiency: The ability to apply ALP determinations across multiple years and the power to issue guidelines streamline the administration of transfer pricing rules.
• Enhanced Enforcement: The power to scrutinize unreported transactions and rectify mistakes fortifies the anti-avoidance framework.

For the Regulatory Framework

• Alignment with International Standards: The multi-year application and safe harbor-like provisions bring India's regime closer to global best practices, such as APAs and roll-forward arrangements.
• Legislative Oversight: The requirement to lay guidelines before Parliament ensures transparency and accountability.

Comparative Analysis: Clause 166 vs. Section 92CA

Topic	Clause 166 of the Income Tax Bill, 2025	Section 92CA of the Income-tax Act, 1961	Analysis
Reference to TPO	AO may refer ALP determination to TPO for international/specified domestic transactions; requires prior approval.	Identical provision; AO may refer with prior approval.	No substantive change; language modernized for clarity.
Exclusion for Valid Option	No reference if TPO has declared taxpayer's option valid under sub-section (9).	Same logic under new sub-section (3B) (post-Finance Act, 2025).	Reflects harmonization and codification of safe harbor/APA concepts.
Notice and Hearing	TPO must serve notice, allow evidence submission.	Same procedural safeguard.	No change; upholds natural justice.
Discovery of Additional Transactions	TPO can scrutinize transactions not originally referred or reported.	Covered by sub-sections (2A) and (2B).	Bill consolidates and clarifies these powers.
Determination of ALP	TPO determines ALP per prescribed methods; order sent to AO and assessee.	Same process under sub-section (3).	No change; ensures consistency.
Timelines	Order must be made at least 60 days before AO's limitation period expires; extension possible.	Similar timeline and extension provisions under sub-section (3A).	References updated assessment sections in the Bill.
Multi-Year Application	Taxpayer can opt for ALP to apply for two subsequent years; subject to conditions and TPO validation.	Newly introduced as sub-section (3B) (post-Finance Act, 2025).	Major innovation, enhances certainty.
Exclusion for Certain Proceedings	Multi-year application does not apply to Chapter XVI-B proceedings.	Same exclusion for Chapter XIV-B.	Reflects alignment with special assessment chapters.
Implementation and Rectification	AO must compute/recompute income per TPO order; TPO can rectify mistakes; AO must amend assessment accordingly.	Sub-sections (4), (4A), (5), and (6) provide similar mechanisms.	References to corresponding sections updated in the Bill.
Powers of TPO	Powers u/ss 246(1)(a)-(d), 252(1)(a), or 253.	Powers u/s 131(1)(a)-(d), 133(6), or 133A.	Bill references new sections, possibly reorganized in the new law.
Guidelines and Oversight	CBDT may issue guidelines with Central Government approval; must be laid before Parliament; valid for 2 years from 1 April 2026.	Similar powers under sub-sections (11) and (12), with same time limitation and oversight.	Structural continuity; ensures transparency.
Definition of TPO	Joint/Deputy/Assistant Commissioner authorized by Board for sections 165 and 171.	Same officers, authorized for sections 92C and 92D.	Section references updated; no substantive change.

Key Innovations and Differences

• Consolidation and Modernization: The Bill consolidates fragmented provisions from Section 92CA into a more coherent and accessible structure, updating section references to align with the new legislative framework.
• Multi-Year Application: The explicit mechanism for rolling forward ALP determinations is a significant advancement, reducing compliance costs and administrative burden for both taxpayers and the revenue.
• Procedural Clarity: The Bill streamlines language and clarifies the sequence of actions, especially regarding the interaction between references, options, and subsequent years' assessments.
• Updated Powers and References: The investigative powers and assessment timelines are referenced to the new section numbers, reflecting a reorganization of the procedural code in the 2025 Bill.

Potential Issues and Ambiguities

• Interpretation of "Similar Transactions": The criteria for what constitutes a "similar" transaction for multi-year application may require further clarification, possibly through rules or CBDT guidelines.
• Interaction with Other Provisions: The exclusion of Chapter XVI-B proceedings from the multi-year regime may lead to disputes over the scope of such exclusion.
• Timeliness and Administrative Challenges: Ensuring that TPOs adhere to strict timelines, especially in complex cases involving multiple transactions, may require additional administrative resources.

Conclusion

Clause 166 of the Income Tax Bill, 2025 represents a significant evolution of India's transfer pricing regime, building on the foundation laid by Section 92CA of the Income-tax Act, 1961. While the core principles and procedural safeguards remain intact, the Bill introduces greater clarity, administrative efficiency, and certainty, particularly through the multi-year application mechanism. By consolidating and modernizing the law, and by aligning with international standards, the Bill seeks to balance the twin objectives of preventing tax avoidance and reducing compliance burdens. The success of the new regime will, however, depend on the clarity of subordinate legislation, the efficiency of administrative processes, and the continued vigilance of both taxpayers and tax authorities in upholding the arm's length standard.

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Full Text:

Clause 166 Reference to Transfer Pricing Officer.

 

Dated: 24-4-2025