2020 (9) TMI 1159 - AT - Income Tax

Tribunal directs RPM for distribution & re-examines comparables for ITES. Importance of selecting suitable transfer pricing method.

The Tribunal allowed the assessee's appeal, directing the AO/TPO to adopt Resale Price Method (RPM) for the distribution segment and to re-examine ... Transfer pricing adjustment made in respect of distribution segment - assessee adopted “Resale Price Method” (RPM) as most appropriate method for the distribution segment - HELD THAT:- We notice that the co-ordinate bench has examined the issue of “most appropriate method” for a distributor of products in the case of Acer India Pvt Ltd [2020 (3) TMI 426 - ITAT BANGALORE] In the instant case, the assessee has claimed that it has not carried out any value addition to the products imported by it from its Associated Enterprises. Also submitted that the functions to be performed by the assessee as a “distributor”, which is highlighted by the TPO is normal functions performed in the trade circles even by a non-related party - revenue has not negated both these submissions of the assessee. The TPO has also rejected the RPM for the reason that the assessee is incurring Net loss. As held by the Tribunal in various cases that the Gross Profit margin has to be compared under RPM. Accordingly, we are of the view that RPM is the most appropriate method in the facts and circumstances of the case. Accordingly, we direct the AO/TPO to adopt Resale Price Method as most appropriate method and determine the ALP of the transactions accordingly Transfer pricing adjustment made under ITES segment - assessee adopted TNM method as most appropriate method and Operating Profit/Operating Cost (OP/OC) as Profit Level Indicator (PLI) - Comparable selection - HELD THAT:- Having regard to the submission of the assessee that the segmental results is required to be compared with the assessee company, we are of the view that this issue also requires fresh examination at the end of the AO/TPO. Accordingly we restore this company also to their file for examining it afresh. Issues Involved:1. Transfer Pricing Adjustment in the Distribution Segment.2. Transfer Pricing Adjustment in the ITES Segment.Detailed Analysis:1. Transfer Pricing Adjustment in the Distribution Segment:The first issue pertains to the transfer pricing adjustment made in the distribution segment. The assessee, a subsidiary of Element 14 Holdings BV Netherlands, engaged in distributing electronic and industrial products, adopted the 'Resale Price Method' (RPM) as the most appropriate method for this segment. However, the Transfer Pricing Officer (TPO) disagreed, noting that the assessee performed additional functions and incurred significant expenses, resulting in a loss. The TPO favored the Transactional Net Margin Method (TNMM) over RPM, leading to a transfer pricing adjustment of Rs. 2.38 crores, which was upheld by the Dispute Resolution Panel (DRP).The assessee argued that it was a pure distributor without any value addition to the products, making RPM the most appropriate method. The assessee cited the Tribunal's decision in Acer India Pvt Ltd, where RPM was deemed suitable for distributors. The TPO contended that the assessee's significant advertisement expenses justified the use of TNMM. The Tribunal, referencing multiple cases, including Acer India Pvt Ltd and A.O. Smith India Water Heating P Ltd, concluded that RPM was the most appropriate method for distributors not adding value to products. The Tribunal directed the AO/TPO to adopt RPM for determining the Arm's Length Price (ALP).2. Transfer Pricing Adjustment in the ITES Segment:The second issue concerns the transfer pricing adjustment in the ITES segment. The assessee used TNMM with Operating Profit/Operating Cost (OP/OC) as the Profit Level Indicator (PLI). The TPO, after rejecting the assessee's transfer pricing study, selected ten comparable companies, resulting in an average mean margin of 24.77%. After adjustments, a transfer pricing adjustment of Rs. 49.93 lakhs was made.The DRP excluded seven comparables and confirmed three: Accentia Technologies Ltd, ICRA Online Ltd, and Jindal Intellicom. The assessee sought the exclusion of Accentia Technologies Ltd and ICRA Online Ltd, citing the Tribunal's decision in Acusis Software India P Ltd, which excluded these companies for the same assessment year. The Tribunal, following precedents, directed the exclusion of these companies.The assessee also sought the inclusion of Inhouse Production Limited and Microland Ltd. The TPO rejected Inhouse Production Limited due to alleged unavailability of data, which the Tribunal found incorrect as the data was on record. The Tribunal restored this issue to the AO/TPO for re-examination. Similarly, for Microland Ltd, the Tribunal directed a fresh examination by the AO/TPO, considering the segmental results related to ITES services.Conclusion:The Tribunal allowed the assessee's appeal for statistical purposes, directing the AO/TPO to adopt RPM for the distribution segment and to re-examine the comparables for the ITES segment. The decision underscores the importance of selecting the most appropriate method based on the specific functions and circumstances of the assessee.