Enhancing Certainty and Compliance in Transfer Pricing through Advance Pricing Agreements : Clause 168 of the Income Tax Bill, 2025 Vs. Section 92CC of the Income-tax Act, 1961

Clause 168 Advance pricing agreement.

Income Tax Bill, 2025

Introduction

The introduction of advance pricing agreements (APAs) into the Indian tax regime marked a significant evolution in the administration of transfer pricing and international taxation. Section 92CC of the Income-tax Act, 1961, introduced in 2012 and subsequently amended, established the statutory framework for APAs, providing certainty and reducing litigation in cross-border transactions. Clause 168 of the Income Tax Bill, 2025, seeks to continue and, in some respects, refine this framework. This commentary provides a detailed analysis of Clause 168, delving into its objectives, mechanics, and implications, and undertakes a clause-by-clause comparison with the existing Section 92CC to highlight continuities, innovations, and potential challenges.

Objective and Purpose

The legislative intent behind both Section 92CC and Clause 168 is to provide taxpayers and the revenue authorities with a mechanism to pre-determine the arm's length price (ALP) of international transactions. This is particularly significant in the context of transfer pricing, where the determination of ALP for cross-border transactions between associated enterprises is fraught with complexity, subjectivity, and often results in protracted disputes. The APA mechanism aims to:

• Enhance tax certainty and predictability for multinational enterprises (MNEs);
• Reduce transfer pricing litigation and administrative burden on both taxpayers and tax authorities;
• Encourage voluntary compliance and foster a cooperative relationship between taxpayers and the tax administration;
• Align India's transfer pricing regime with global best practices, as recommended by the OECD and adopted in several jurisdictions.

Clause 168, while largely mirroring Section 92CC, introduces certain textual and structural changes that merit close examination.

Detailed Analysis of Clause 168 of the Income Tax Bill, 2025

1. Authority to Enter into APA 

Clause 168(1) empowers the Board (CBDT), with Central Government approval, to enter into APAs with any person, determining:

• (a) The arm's length price (ALP) or the manner of its determination for international transactions;
• (b) The income referred to in section 9(2), or the manner of its determination, as attributable to operations in India by non-residents.

This is functionally identical to Section 92CC(1), except that Clause 168 refers to "section 9(2)" rather than "clause (i) of sub-section (1) of section 9" as in Section 92CC. The change reflects a possible reorganization or renumbering of the source rule for attribution of income to non-residents in the new Bill.

2. Methods for Determination 

Clause 168(2) specifies that the methods for determining ALP or income may include:

• (a) The methods in section 165(1) (presumably the new Bill's equivalent of section 92C(1)); or
• (b) Methods provided by rules made under the Act, with necessary adjustments or variations.

This mirrors Section 92CC(2), which refers to section 92C(1) and rule-based methods. The language in Clause 168 is slightly more open-ended, allowing for adjustments or variations "as may be necessary or expedient," preserving administrative flexibility.

3. Supremacy of APA 

Clause 168(3) provides that, notwithstanding anything in section 165, 166, or relevant rules, the ALP or income for transactions covered by the APA shall be determined as per the APA. This is analogous to Section 92CC(3), which overrides section 92C, 92CA, and the rules. The explicit reference to both section 165 and 166 (presumably new equivalents of 92C and 92CA) ensures that the APA's terms take precedence over general transfer pricing provisions for covered transactions.

4. Duration of APA 

Clause 168(4) states that the APA is valid for a period not exceeding five consecutive tax years, as specified in the agreement. This is identical to Section 92CC(4), which uses "previous years" (the terminology in the 1961 Act) instead of "tax years" (the terminology in the Bill). The time frame remains unchanged, preserving the balance between certainty and the need to periodically revisit the terms in light of changing business or economic conditions.

5. Binding Nature of APA 

Clause 168(5) provides that the APA is binding on:

• (a) The person (taxpayer) and the covered transaction(s);
• (b) The Principal Commissioner/Commissioner and subordinate tax authorities, in respect of such person and transaction.

This is verbatim the same as Section 92CC(5), ensuring that both the taxpayer and the tax administration are held to the terms of the APA, thereby fostering certainty and preventing unilateral deviations.

6. Circumstances Where APA is Not Binding 

Clause 168(6) provides that the APA shall not be binding if there is a change in law or facts having a bearing on the agreement. This is identical to Section 92CC(6). The provision is crucial in ensuring that APAs remain aligned with legislative intent and reflect material changes in the taxpayer's business or regulatory environment.

7. Void Ab Initio Declaration 

Clause 168(7) empowers the Board, with Central Government approval, to declare an APA void ab initio if obtained by fraud or misrepresentation. This is identical to Section 92CC(7). This safeguard protects the integrity of the APA process and acts as a deterrent against abuse.

8. Consequences of Void Ab Initio Declaration 

Clause 168(8) provides that, upon such declaration:

• (a) All provisions of the Act apply as if the APA was never entered into;
• (b) The period between the APA's date and the void order is excluded from limitation periods, and if the remaining limitation is less than 60 days, it is extended to 60 days.

These provisions are identical to Section 92CC(8), ensuring that the revenue is not prejudiced by the period during which the fraudulent APA was in effect, and that procedural fairness is maintained.

9. Power to Prescribe Scheme 

Clause 168(9) authorizes the Board to prescribe a scheme for the manner, form, procedure, and other matters regarding APAs. This is the same as Section 92CC(9). The provision enables the development of detailed rules and procedures, allowing the APA program to evolve with administrative experience and stakeholder feedback.

10. Rollback Provisions 

Clause 168(10) allows the APA to provide for determination of ALP or income for up to four tax years preceding the first covered year (i.e., rollback). This is similar to Section 92CC(9A), which uses "previous years" instead of "tax years" and refers to "clause (i) of sub-section (1) of section 9" instead of "section 9(2)." The substance and intent are the same: to allow retrospective application of the APA, subject to prescribed conditions.

11. Pendency of Proceedings 

Clause 168(11) states that where an APA application is made, proceedings are deemed pending until the APA is entered into or proceedings are closed as per rules. Section 92CC(10) is similar but does not explicitly mention closure as per rules. The addition in Clause 168 provides greater procedural clarity and allows for closure by prescribed rules, potentially addressing scenarios where applications are withdrawn, rejected, or otherwise disposed of.

Comparative Analysis with Section 92CC of the Income-tax Act, 1961

1. Structural and Terminological Adjustments

The most notable differences between Clause 168 and Section 92CC are structural and terminological, reflecting the reorganization and modernization of the tax code:

• References to "previous year" in Section 92CC are replaced by "tax year" in Clause 168, aligning with global terminology and providing consistency across the new Bill.
• References to statutory sections (e.g., section 9(2) versus section 9(1)(i)) reflect the renumbering or restructuring of source rules in the Bill.

These changes are largely cosmetic but improve clarity and global compatibility.

2. Substantive Parity

Substantively, Clause 168 and Section 92CC are nearly identical. All key features-scope, methods, binding nature, duration, voiding for fraud, exclusion of limitation periods, rollback, and scheme-making power-are preserved. The provisions maintain the balance between taxpayer certainty and revenue protection, reflecting the maturity of the APA regime in India.

3. Procedural Refinements

The only notable procedural refinement is in Clause 168(11), which explicitly allows for closure of APA proceedings by rules, providing greater administrative flexibility and legal certainty in handling applications that do not result in an agreement.

4. Alignment with International Best Practices

Both provisions reflect global best practices as recommended by the OECD's Transfer Pricing Guidelines, including:

• Provision for unilateral, bilateral, and multilateral APAs;
• Binding effect on both taxpayer and tax authorities;
• Rollback provisions to address past years and reduce legacy disputes;
• Safeguards against abuse (fraud/misrepresentation clauses);
• Procedural clarity and flexibility through delegated legislation.

The retention of these features in the new Bill signals India's continuing commitment to international tax certainty and dispute prevention.

5. Potential Ambiguities and Issues

Despite the overall continuity, some areas may merit further clarification or refinement:

• Definition and Scope of "Change in Law or Facts": Both provisions state that APAs are not binding if there is a "change in law or facts having bearing on the agreement." The threshold for what constitutes a material change could be further defined in subordinate legislation to prevent disputes.
• Interaction with Other Anti-Avoidance Provisions: The supremacy clause ensures the APA overrides general transfer pricing rules, but its interaction with general anti-avoidance rules (GAAR) or specific anti-avoidance provisions could be clarified, especially in complex MNE structures.
• Rollback Limitations: While the rollback is permitted for four years, the precise conditions and exclusions (e.g., years where assessment is completed, or litigation is pending) should be clearly prescribed in the rules, as under current APA regulations.
• Procedural Safeguards for Void Ab Initio: Both provisions allow for APAs to be declared void ab initio for fraud or misrepresentation. Procedural safeguards (e.g., right to be heard, appeal mechanisms) should be detailed in the scheme to ensure fairness and minimize litigation.

6. A clause-by-clause comparison reveals that Clause 168 of the 2025 Bill is largely modeled on Section 92CC, but with certain refinements and clarifications.

The analysis below highlights the similarities, differences, and potential implications of the changes.

Provision	Section 92CC of the Income-tax Act, 1961	Clause 168 of the Income Tax Bill, 2025	Analysis/Comment
Authority to enter APA	CBDT with Central Govt. approval; covers ALP and income under s.9(1)(i)	CBDT with Central Govt. approval; covers ALP and income under s.9(2)	Wording updated to reference s.9(2), possibly reflecting re-numbering or expanded scope in new Act.
Methods for ALP/income determination	Methods under s.92C(1) or rules; with adjustments	Methods under s.165(1) or rules; with adjustments	Reflects updating of section references; core principle unchanged.
Supremacy of APA	Overrides s.92C, s.92CA, or rules	Overrides s.165, s.166, or rules	Section numbers updated; principle of APA supremacy retained.
Validity period	Up to five consecutive previous years	Up to five consecutive tax years	Terminology updated (from "previous years" to "tax years"); substance unchanged.
Binding effect	On taxpayer and tax authorities	On taxpayer and tax authorities	Substantially identical; ensures mutual commitment.
Non-binding if change in law/facts	APA not binding if law/facts change	APA not binding if law/facts change	Identical provision; standard safeguard.
Void ab initio for fraud/misrepresentation	CBDT may declare APA void ab initio	CBDT may declare APA void ab initio	Identical; ensures integrity of APA process.
Consequences of void ab initio	Act applies as if APA never existed; limitation period exclusion and extension	Act applies as if APA never existed; limitation period exclusion and extension	Same mechanism; ensures revenue protection.
Power to prescribe scheme	CBDT may prescribe scheme for APA process	CBDT may prescribe scheme for APA process	Identical; allows for detailed rules.
Rollback provision	Up to four previous years preceding the APA term; subject to conditions	Up to four tax years preceding the APA term; subject to conditions	Terminology updated; substance identical. Rollback introduced in 2014 and retained.
Deemed pendency of proceedings	Proceedings deemed pending until APA entered or closed	Proceedings deemed pending until APA entered or closed	Identical; ensures APA process is not undermined by premature closure.

Practical Implications

The APA regime, as continued and refined by Clause 168, has significant practical implications for various stakeholders:

• For Taxpayers: APAs provide certainty, reduce the risk of transfer pricing adjustments and penalties, and minimize litigation costs. The possibility of rollback further reduces legacy risk. The process, however, requires significant disclosure and negotiation, and taxpayers must ensure full and accurate representation of facts to avoid the risk of the APA being voided.
• For Tax Authorities: APAs reduce the administrative burden of annual audits and litigation, allowing resources to be focused on higher-risk cases. The binding nature of APAs also ensures consistency and predictability in tax administration.
• For the Indian Economy: The APA regime enhances India's attractiveness as an investment destination by providing tax certainty to MNEs, aligning with the government's "Ease of Doing Business" agenda.
• For Legal and Accounting Professionals: The APA process creates demand for specialized advisory services in transfer pricing, international tax, and dispute resolution.

Comparative Analysis with International Jurisdictions

India's APA regime, as reflected in both Section 92CC and Clause 168, is broadly consistent with OECD and UN recommendations and with APA regimes in major economies such as the United States, United Kingdom, Australia, and Japan. Notable features include:

• Scope: Covers both transfer pricing and attribution of profits to permanent establishments, similar to international practice.
• Duration: Five-year maximum term is standard globally.
• Rollback: India's explicit statutory provision for rollback is relatively advanced and facilitates holistic dispute resolution.
• Binding Effect: The binding nature on both taxpayer and tax authorities is a cornerstone of international APA regimes.
• Safeguards: Provisions for voiding agreements for fraud/misrepresentation are standard.

Some countries allow for longer APA terms or more flexible rollback, but the Indian approach is within the mainstream.

Conclusion

Clause 168 of the Income Tax Bill, 2025, represents a careful and deliberate continuation of the APA framework established by Section 92CC of the Income-tax Act, 1961. The provision preserves all substantive features of the existing regime-scope, methods, duration, binding effect, rollback, safeguards-while modernizing terminology and introducing minor procedural refinements. The APA regime remains a vital tool for transfer pricing certainty, dispute prevention, and alignment with international best practices. The success of the regime will continue to depend on transparent processes, robust administrative capacity, and ongoing stakeholder engagement. As cross-border transactions become ever more complex, the APA framework provides a critical mechanism for balancing taxpayer certainty with the protection of the tax base.

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Full Text:

Clause 168 Advance pricing agreement.

 

Dated: 24-4-2025