Tribunal Decisions on Transfer Pricing, Deductions, and Disallowances in Tax Appeals

Merck Limited Versus Dy. Commissioner of Income Tax, Range 6 (3), Mumbai and Vica-Versa

Merck Limited Versus Dy. Commissioner of Income Tax, Range 6 (3), Mumbai and Vica-Versa - TMI Issues Involved:
1. Arm's Length Price (ALP) adjustment for the purchase of raw material (Bisoprolol).
2. ALP adjustment for technical know-how fees.
3. Disallowance of expenses on account of distribution of free samples.
4. Disallowance under Section 14A.
5. Adjustment under Section 145A.
6. Disallowance under Section 43B(f).
7. Taxability of interest on income tax refund.
8. Deduction under Section 36(1)(va) for employees’ provident fund contribution.
9. Disallowance of share buyback expenses.
10. Disallowance of sales promotion expenses.

Detailed Analysis:

1. Arm's Length Price (ALP) Adjustment for the Purchase of Raw Material (Bisoprolol):
The assessee challenged the ALP adjustments for Bisoprolol, an active pharmaceutical ingredient (API) purchased from its associated enterprises. The Transfer Pricing Officer (TPO) used the Comparable Uncontrolled Price (CUP) method, leading to adjustments for the assessment years 2009-10 and 2010-11. The Tribunal upheld the application of the CUP method, as decided in the Serdia Pharmaceuticals case, but allowed a 10% quality adjustment due to the superior quality of the imported API. The Tribunal also directed that only domestic prices should be considered for computing the ALP and that the arithmetic mean rather than the weighted average should be used.

2. ALP Adjustment for Technical Know-How Fees:
The TPO treated the ALP of technical know-how fees as NIL, arguing that the assessee did not demonstrate tangible benefits from the payments. The Tribunal found contradictions in the authorities' findings, noting that the services were indeed rendered, albeit general in nature. The Tribunal emphasized that the benefit test is irrelevant for ALP determination and that the assessee reasonably established the receipt of services. The Tribunal directed the deletion of the ALP adjustments for technical know-how fees.

3. Disallowance of Expenses on Account of Distribution of Free Samples:
The Tribunal restored the issue to the Assessing Officer (AO) for fresh adjudication, following the precedent set in the assessee's case for the assessment year 2007-08.

4. Disallowance Under Section 14A:
The assessee contended that investments in REC bonds, which yield taxable income, were wrongly included in the Section 14A disallowance. The Tribunal remitted the issue to the AO for factual verification and adjustment.

5. Adjustment Under Section 145A:
The Tribunal remitted the issue to the AO for fresh adjudication, noting that the assessee is entitled to adjustments as per the inclusive method of accounting under Section 145A.

6. Disallowance Under Section 43B(f):
The Tribunal upheld the disallowance under Section 43B(f), noting that the Calcutta High Court's decision declaring the section unconstitutional was stayed by the Supreme Court.

7. Taxability of Interest on Income Tax Refund:
The Tribunal dismissed the assessee's appeal, following the Special Bench decision in Avada Trading Co Pvt Ltd Vs ACIT, which held that interest on income tax refund is taxable.

8. Deduction Under Section 36(1)(va) for Employees’ Provident Fund Contribution:
The Tribunal allowed the deduction, following the jurisdictional High Court's decision in CIT Vs Ghatghe Patil Transport Ltd, which permits deduction if the payment is made before the due date of filing the income tax return.

9. Disallowance of Share Buyback Expenses:
The Tribunal allowed the deduction, citing the Delhi High Court's decision in CIT Vs Selan Exploration Technology Ltd, which held that expenses incurred for buyback of shares are revenue in nature and allowable under Section 37.

10. Disallowance of Sales Promotion Expenses:
The Tribunal confirmed the disallowance based on Circular No. 5 of 2012, which prohibits deductions for expenses incurred in providing freebies to medical practitioners, as it violates the Medical Council of India's regulations.

Conclusion:
The appeals filed by the assessee were partly allowed, and the appeal filed by the Assessing Officer was dismissed. The Tribunal provided detailed directions for fresh adjudication on several issues, ensuring compliance with legal precedents and statutory provisions.