Important Definition within the framework of transfer pricing and anti-avoidance measures : Clause 173 of Income Tax Bill, 2025 Vs. Section 92F of Income-tax Act, 1961

Clause 173 Definitions of certain terms relevant to determination of arm's length price, etc.

Income Tax Bill, 2025

Introduction

Clause 173 of the Income Tax Bill, 2025, and Section 92F of the Income-tax Act, 1961, both serve as definitional provisions within the framework of transfer pricing and anti-avoidance measures in Indian tax law. These provisions are pivotal in the interpretation and application of the special provisions relating to the avoidance of tax, particularly in the context of transactions between associated enterprises, which are susceptible to manipulation for tax advantage.

Clause 173, as proposed in the 2025 Bill, essentially mirrors the structure and intent of Section 92F, albeit with certain modifications and contextual updates. The definitions contained in these provisions are foundational for the determination of the arm's length price and the application of the transfer pricing regime in India. This commentary undertakes a detailed analysis of each definitional component in Clause 173, followed by a comprehensive comparative analysis with the corresponding elements in Section 92F of the Income-tax Act, 1961, highlighting similarities, differences, and the implications for taxpayers and tax authorities.

Objective and Purpose

The legislative intent behind both Clause 173 and Section 92F is to provide clarity and precision in the application of transfer pricing rules. These definitions are not merely academic; they have direct operational significance in determining the tax liability of entities engaged in cross-border or inter-company transactions. The overarching policy consideration is to prevent profit shifting and base erosion by ensuring that transactions between related parties are conducted at arm's length, i.e., on terms that would have prevailed between independent enterprises in similar circumstances.

Historically, the introduction of Section 92F in 2001 (with subsequent amendments) marked India's formal adoption of internationally recognized transfer pricing principles, aligning domestic law with the OECD Guidelines and global best practices. The proposed Clause 173 in the 2025 Bill appears to continue this trajectory, updating and refining the definitional framework to address evolving business models and compliance realities.

Detailed Analysis of Clause 173 of the Income Tax Bill, 2025

1. Scope and Applicability

Clause 173 explicitly states that its definitions apply to sections 161, 162, 163, 165, 171, and 172 of the Bill, in addition to itself, unless the context requires otherwise. This approach ensures that the interpretative framework is harmonized across all relevant provisions dealing with transfer pricing and anti-avoidance.

Section 92F, in contrast, applies to sections 92, 92A, 92B, 92C, 92D, and 92E of the Income-tax Act, 1961, reflecting the structure of the prevailing Act. The cross-referencing of sections in both provisions reflects a deliberate legislative technique to ensure consistent application of key terms across the transfer pricing regime.

2. Definition of "Arm's Length Price"

Both Clause 173(a) and Section 92F(ii) define "arm's length price" as a price applied or proposed to be applied in a transaction between persons other than associated enterprises, in uncontrolled conditions. The definition is succinct and aligns with the OECD's conceptualization of arm's length dealings.

The phraseology in both provisions is nearly identical, emphasizing the need for comparability with transactions between independent parties. The focus on "uncontrolled conditions" underscores the principle that the benchmark for related party transactions should be the market price that would have been agreed upon by unrelated parties.

Notably, neither provision attempts to define the methodology for determining the arm's length price within the definition itself; rather, they provide the conceptual anchor for the more detailed computational rules found elsewhere in the respective statutes.

3. Definition of "Enterprise"

Clause 173(b) and Section 92F(iii) both define "enterprise" expansively, encompassing any person (including a permanent establishment) engaged in a wide range of activities, including:

• Production, storage, supply, distribution, acquisition, or control of articles or goods;
• Know-how, patents, copyrights, trademarks, licenses, franchises, or other business or commercial rights of a similar nature;
• Any data, documentation, drawing, or specification relating to intellectual property;
• Provision of services of any kind;
• Carrying out any work in pursuance of a contract;
• Investment or providing a loan;
• Business of acquiring, holding, underwriting, or dealing with securities of any other body corporate.

Both provisions extend the definition to cover activities carried out directly or through units, divisions, or subsidiaries, regardless of location. This breadth is designed to capture the complex structures through which multinational enterprises operate, ensuring that transfer pricing rules apply comprehensively.

The language used in Clause 173(b) is more granular, breaking down the activities into sub-clauses (i) to (vii), which enhances clarity and may aid in interpretation. Section 92F(iii) presents these activities in a more continuous narrative, but the substantive coverage remains the same.

4. Definition of "Permanent Establishment"

Clause 173(c) and Section 92F(iiia) both define "permanent establishment" as including a fixed place of business through which the business of the enterprise is wholly or partly carried on. This is consistent with the definition found in most tax treaties and the OECD Model Convention.

The inclusion of "permanent establishment" within the definitional section ensures that the transfer pricing rules apply not only to resident entities but also to non-residents operating through a fixed place of business in India. This is particularly relevant in the context of cross-border transactions and the allocation of profits to Indian operations of multinational enterprises.

5. Definition of "Specified Date"

Clause 173(d) defines "specified date" as the date one month before the due date for furnishing the return of income u/s 263(1) for the relevant tax year. Section 92F(iv), as amended, defines it as the date one month prior to the due date for furnishing the return of income u/s 139(1) for the relevant assessment year.

The key distinction here lies in the cross-referenced section for the due date of filing the return. Clause 173 refers to section 263(1) of the 2025 Bill, whereas Section 92F refers to section 139(1) of the Income-tax Act, 1961. This reflects the renumbering and restructuring of the statutory framework in the new Bill. Substantively, however, the intent remains to peg the "specified date" to a point before the return filing deadline, ensuring timely compliance with transfer pricing documentation and reporting requirements.

6. Definition of "Transaction"

Clause 173(e) and Section 92F(v) both define "transaction" to include any arrangement, understanding, or action in concert, whether or not formal, in writing, or intended to be enforceable by legal proceedings.

This broad definition is designed to prevent taxpayers from circumventing transfer pricing rules through informal or unwritten arrangements. By capturing even non-contractual or non-legally enforceable arrangements, the law ensures that all relevant dealings between associated enterprises are subject to scrutiny.

The use of the phrase "includes" in both provisions indicates an inclusive, rather than exhaustive, definition, allowing for judicial and administrative flexibility in interpretation.

Practical Implications

For Taxpayers and Businesses

The definitions provided in Clause 173 and Section 92F have significant practical implications for taxpayers, particularly multinational enterprises and entities engaged in cross-border transactions. The expansive definition of "enterprise" and "transaction" means that a wide range of dealings-including those that are not formalized or documented-may fall within the ambit of transfer pricing regulations.

The definition of "specified date" is crucial for compliance, as it determines the timeline for maintaining and furnishing transfer pricing documentation. Failure to comply with these timelines can result in penalties and adverse tax consequences.

The clarity provided by these definitions also aids in reducing disputes and litigation, as taxpayers have a better understanding of the scope of their obligations.

For Tax Authorities

For tax authorities, the broad and detailed definitions serve as a robust foundation for enforcing transfer pricing rules. The inclusive definition of "transaction" empowers authorities to look beyond the form and substance of arrangements, preventing tax avoidance through artificial structuring.

The definition of "permanent establishment" enables the authorities to bring within the tax net the profits attributable to the Indian operations of foreign enterprises, consistent with international tax principles.

Compliance and Procedural Impact

The definitions, particularly of "specified date", drive the procedural requirements for maintaining and submitting transfer pricing documentation. Taxpayers must ensure that their documentation is contemporaneous and available by the specified date, failing which they may be subject to penalties under the relevant provisions.

The comprehensive definition of "enterprise" ensures that even complex group structures and indirect holdings are covered, necessitating careful analysis and documentation of all inter-company transactions.

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

1. Structural and Drafting Differences

While Clause 173 and Section 92F are substantively similar, Clause 173 adopts a more structured and itemized approach, breaking down the definition of "enterprise" into sub-clauses. This may aid in clarity and ease of reference, especially for complex business models.

Section 92F, by contrast, presents the definitions in a more continuous format, which, while comprehensive, may be less user-friendly for interpretation.

2. Evolution of the "Specified Date"

Section 92F(iv) has undergone several amendments over time, reflecting changes in the return filing deadlines and compliance requirements. The current definition ties the specified date to section 139(1) of the Income-tax Act, 1961. Clause 173(d) updates this reference to section 263(1) of the 2025 Bill, reflecting the restructuring of the statutory framework.

This change is largely administrative, ensuring that the definition remains aligned with the operative provisions governing return filing in the new legislative scheme.

3. Inclusion of "Accountant"

Section 92F(i) defines "accountant" by reference to section 288(2) of the Income-tax Act, 1961, a definition not reproduced in Clause 173. This may be because the new Bill addresses the definition of "accountant" elsewhere, or because the focus of Clause 173 is limited to terms directly relevant to transfer pricing.

The omission does not affect the core transfer pricing framework but may require cross-referencing to other provisions for a complete understanding of compliance requirements.

4. Substantive Consistency in Key Concepts

Both provisions are consistent in their conceptualization of "arm's length price", "enterprise", "permanent establishment", and "transaction". There is a clear legislative intent to maintain continuity in the transfer pricing regime, with updates primarily aimed at improving clarity and alignment with the new statutory structure.

The inclusive and expansive definitions ensure that the transfer pricing rules remain effective in addressing tax avoidance through related party transactions.

5. Policy Continuity and International Alignment

Both provisions reflect India's commitment to international best practices in transfer pricing, as articulated in the OECD Guidelines. The definitions are designed to be technology-neutral and adaptable to evolving business models, including digital transactions and complex group structures.

The continued use of established concepts such as "arm's length price" and "permanent establishment" ensures that India's transfer pricing regime remains consistent with global standards, facilitating cross-border investment and minimizing double taxation.

6. Potential for Judicial Interpretation

Given the inclusive language and the breadth of the definitions, there remains scope for judicial interpretation, particularly in relation to the meaning of "transaction" and the attribution of profits to a "permanent establishment". Courts and tribunals are likely to continue playing a significant role in shaping the contours of these concepts, particularly as new business models emerge.

Comparative Analysis: Clause 173 of the Income Tax Bill, 2025 vs. Section 92F of the Income-tax Act, 1961

Term	Section 92F of the Income-tax Act, 1961	Clause 173 of the Income Tax Bill, 2025	Key Observations
Accountant	Defined by reference to Section 288(2)	Not defined in Clause 173	Omission likely due to structural reorganization
Arm's Length Price	Price between unrelated parties in uncontrolled conditions	Identical	No substantive change
Enterprise	Broad, inclusive definition; covers various activities and structures	Identical in scope and language	No substantive change
Permanent Establishment	Fixed place of business through which business is carried on	Identical	No substantive change
Specified Date	One month prior to due date u/s 139(1)	One month prior to due date u/s 263(1)  (Bill)	Section reference updated; substantive rule unchanged
Transaction	Includes informal, unwritten, or non-enforceable arrangements	Identical	No substantive change

Conclusion

Clause 173 of the Income Tax Bill, 2025, represents a careful and deliberate update of the definitional framework for transfer pricing and anti-avoidance provisions in Indian tax law. While largely consistent with Section 92F of the Income-tax Act, 1961, the new provision adopts a more structured and detailed drafting style, enhancing clarity and ease of application.

The definitions provided are comprehensive and inclusive, ensuring that the transfer pricing regime remains robust and effective in addressing tax avoidance through related party transactions. The broad scope of "enterprise" and "transaction" ensures that even informal or undocumented arrangements are brought within the regulatory net, while the definition of "specified date" provides clarity on compliance timelines.

The alignment with international standards and the continuity of key concepts reflect a balanced approach, combining stability with adaptability. As the new Bill comes into force, it will be important for taxpayers, advisors, and tax authorities to familiarize themselves with the updated definitions and ensure that their practices and documentation remain compliant. Ongoing judicial interpretation will continue to play a vital role in refining the application of these provisions, particularly as business models and economic realities evolve.

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Full Text:

Clause 173 Definitions of certain terms relevant to determination of arm's length price, etc.

 

Dated: 25-4-2025