2018 (8) TMI 1942 - AT - Income Tax

Tribunal decisions on transfer pricing, arm's length rate, and contractual obligations

M/s Kaybee Private Limited. Versus ITO-10 (1) (3), Mumbai.

The Tribunal partly allowed the appeals, dismissing grounds related to non-issuance of notice under Section 92C(3) and the determination of KEPTL as an ... TP Adjustment - Adoption of method prescribed under section 92C(1) - HELD THAT:- We have noted that the Assessing Officer has not computed the ALP by adopting the method prescribed under section 92C(1). The Assessing Officer relied upon the order of Assessment Year 2008-09. The Assessing Officer has not made any attempt to select unrelated party transaction for making a base to bench marking international transaction. The Assessing Officer relied solely on the order of Assessment Year 2008-09 on his observation that no details was furnished by assessee despite repeated notices. Considering the factual matrix of the case as the Assessing Officer has not adopted the method prescribed under section 92C(1), therefore, we deem it appropriate to restore this ground of appeal to the file of Assessing Officer to re-compute the ALP afresh. Needless to say that Assessing Officer shall provide opportunity to the assessee before passing the order in accordance with law. The assessee is also directed to furnish all documentary evidence to substantiate their contention. Disallowance of society charge and property tax - HELD THAT:- Disallowance of expenses was on the basis of order of earlier years. Before us, the ld. AR of the assessee vehemently submitted that the expenses were incurred as per the agreement/understanding between the lesser and the lessee/assessee. Considering the factual matrix of the case, principally, we are of the view that the expenditure made on account of society and property tax are allowable expenses, if the payment is made under contractual obligation with the lesser/owner and the lessee/assessee. Therefore, the Assessing Officer is directed to verify the fact, if the assessee has incurred these expenses with the consent /agreement of lesser and allowed the appropriate relief to the assessee in accordance with law. Issues Involved:1. Non-issuance of mandatory notice under Section 92C(3) of the Income Tax Act.2. Determination of M/s. Kaybee Exim Pte Ltd, Singapore (KEPTL) as an Associated Enterprise (AE) under Section 92A of the Act.3. Determination of arm's length brokerage rate for yarn product.4. Upward transfer pricing adjustment.5. Non-allowance of benefit of arm's length range of +/- 5% under proviso to Section 92C(2) of the Act.6. Disallowance of society charges and property tax under Section 37 of the Act.Detailed Analysis:1. Non-issuance of Mandatory Notice under Section 92C(3):The assessee contended that the Assessing Officer (AO) determined the arm's length price (ALP) without issuing the mandatory notice under Section 92C(3). The AO issued show-cause notices under Section 142(1), which the assessee did not respond to adequately. The Tribunal held that the AO provided sufficient notice in conformity with the proviso of Section 92C(3) and rejected the assessee's contention, stating that the AO had given ample opportunity to the assessee to comply.2. Determination of KEPTL as an Associated Enterprise (AE):The assessee argued that KEPTL was deemed an AE based solely on the common directorship of Mr. Govind Karunakaran. The Tribunal upheld the AO's and CIT(A)'s decision, referring to its previous order for AY 2008-09, which established that KEPTL and the assessee were AEs based on the participation in management and control as per Section 92A(1) and (2). The Tribunal dismissed the assessee's contention, affirming that KEPTL was correctly treated as an AE.3. Determination of Arm's Length Brokerage Rate:The assessee challenged the AO's determination of a 2% brokerage rate as opposed to the 0.75% actually received. The Tribunal noted that the AO did not follow the methodology prescribed under Section 92C(1) and relied on the previous year's order without considering unrelated party transactions for benchmarking. The Tribunal restored the issue to the AO for fresh computation of ALP, directing the AO to adopt the method prescribed under Section 92C(1) and consider unrelated party transactions.4. Upward Transfer Pricing Adjustment:The assessee contested the upward transfer pricing adjustment of Rs. 2,44,21,228/-. The Tribunal, while addressing the brokerage rate issue, also restored this matter to the AO for recomputation of ALP afresh, ensuring compliance with the prescribed methods and providing the assessee an opportunity to substantiate their contention.5. Non-allowance of Benefit of Arm's Length Range of +/- 5%:The assessee argued that the CIT(A) erred in not allowing the benefit of the arm's length range of +/- 5% as provided in the proviso to Section 92C(2). The Tribunal, in its broader decision to restore the ALP determination to the AO, implied that this issue would also be reconsidered in light of the fresh computation.6. Disallowance of Society Charges and Property Tax:The assessee claimed that society charges and property tax paid for business premises were allowable expenses under Section 37. The AO disallowed these expenses based on previous years' assessments. The Tribunal directed the AO to verify if the expenses were incurred under a contractual obligation with the lessor and to allow the appropriate relief if the payments were made as per the agreement.Conclusion:The Tribunal partly allowed the appeals, dismissing the grounds related to the non-issuance of notice under Section 92C(3) and the determination of KEPTL as an AE. It restored the issues concerning the arm's length brokerage rate, transfer pricing adjustment, and the benefit of the arm's length range to the AO for fresh consideration. The Tribunal also directed the AO to verify and allow society charges and property tax if incurred under a contractual obligation.