Tribunal Upholds Berry Ratio as Profit Level Indicator, Grants Relief under India-Japan DTAA

Mitsubishi Corporation India Pvt. Ltd. Versus Deputy Commissioner of Income Tax Circle 6 (1), New Delhi

Mitsubishi Corporation India Pvt. Ltd. Versus Deputy Commissioner of Income Tax Circle 6 (1), New Delhi - TMI Issues Involved:
1. Correctness of Arm's Length Price (ALP) adjustment under Section 92C.
2. Justification of disallowance under Section 40(a)(i).
3. Justification of disallowance under Section 14A.

Detailed Analysis:

1. Correctness of ALP Adjustment under Section 92C:
Background:
- The ALP adjustment of Rs. 68,15,17,853 was contested. The case involved Mitsubishi Corporation India Pvt. Ltd. (MCI), a subsidiary of Mitsubishi Corporation Japan (MCJ).
- MCI's transactions with its Associated Enterprises (AEs) included provision for services, purchase of goods, and other expenses.
- The Transfer Pricing Officer (TPO) rejected the use of the Transactional Net Margin Method (TNMM) with Berry Ratio as the Profit Level Indicator (PLI), arguing it excluded the cost of sales and did not comply with legal provisions.

Tribunal's Observations:
- The Tribunal noted the uniqueness of the sogo shosha business model, emphasizing the low-risk, high-volume nature of MCI's operations.
- It was observed that the Berry Ratio is suitable for intermediary activities where the value of functions performed is proportional to operating expenses and not materially affected by the value of products distributed.
- The Tribunal referred to the OECD guidelines and other judicial precedents supporting the use of Berry Ratio in similar cases.

Conclusion:
- The Tribunal held that the use of Berry Ratio as PLI was appropriate and rejected the TPO's objections.
- The matter was remitted to the assessment stage for fresh adjudication, considering the Tribunal's observations.

2. Justification of Disallowance under Section 40(a)(i):
Background:
- The disallowance of Rs. 102,17,16,483 was made for payments to non-resident entities without tax deduction at source (TDS).
- The Assessing Officer argued that these entities had Permanent Establishments (PEs) in India, making the payments taxable under Indian law.

Tribunal's Observations:
- For entities like MC Metal Services Asia and Metal One Corporation, it was established that they did not have PEs in India, and thus, payments to them were not taxable in India.
- For entities where the existence of PE was not established, the Tribunal held that the onus was on the revenue authorities to prove the existence of a PE.
- For payments to MCJ, which had a PE in India, the Tribunal considered the non-discrimination clause in the India-Japan DTAA. It was noted that the recipient had taken the payments into account in their income computation and filed returns accordingly.

Conclusion:
- The Tribunal directed the deletion of disallowance for payments to entities without PEs in India.
- For payments to MCJ, the Tribunal held that the second proviso to Section 40(a)(ia), which provides relief if the recipient has paid taxes on the income, should be read into Section 40(a)(i) due to the non-discrimination clause in the DTAA.

3. Justification of Disallowance under Section 14A:
Background:
- The disallowance of Rs. 2,33,728 was made under Section 14A for expenses related to investments, despite the assessee not earning any exempt income during the year.

Tribunal's Observations:
- The Tribunal referred to the jurisdictional High Court's ruling that Section 14A cannot be invoked if no exempt income is earned.

Conclusion:
- The Tribunal upheld the assessee's grievance and deleted the disallowance under Section 14A.

Final Outcome:
- The appeal was allowed in part. The ALP adjustment issue was remitted for fresh adjudication, the disallowance under Section 40(a)(i) was deleted, and the disallowance under Section 14A was also deleted.