2017 (4) TMI 1585 - AT - Income Tax

Tribunal adjusts customs duty & forex fluctuations in transfer pricing, rejects comparables based on product quality.

M/s. Gates Unitta India company P Ltd. Versus The DCIT, Company Circle –II (2), Chennai.

M/s. Gates Unitta India company P Ltd. Versus The DCIT, Company Circle –II (2), Chennai. - TMI Issues Involved:1. Disallowance of customs duty payment.2. Exclusion of Forex gain from the Profit Level Indicator (PLI).3. Rejection of certain comparables.Issue-wise Detailed Analysis:1. Disallowance of Customs Duty Payment:The assessee contended that the Transfer Pricing Officer (TPO) erred by including 30% of the customs duty as part of the operating cost to determine the operating profit to sales ratio. The assessee highlighted that their business model, which involved importing 99% of raw materials due to the specialized nature of their products, was materially different from the comparables, which had an average import content of 29%. The assessee referenced the Tribunal decision in M/s. Skoda Auto India Private Limited, which allowed for customs duty adjustments in the initial years of operations. The TPO, however, rejected this claim, arguing that the assessee had not provided sufficient evidence to substantiate the need for such adjustments. The Dispute Resolution Panel (DRP) also rejected the adjustment based on the decision in the case of Sony India. The Tribunal, referencing the case of Motonic India Automotive (P.) Ltd. and other precedents, directed the Assessing Officer (AO) to provide suitable adjustments against the customs duty component while determining the Arm's Length Price (ALP).2. Exclusion of Forex Gain from the Profit Level Indicator (PLI):The assessee argued that forex losses should not form part of the operating items and should be excluded from the margin computation. The TPO initially disagreed, stating that forex losses due to sales or purchase activities should be considered part of the operating expenses. The DRP, however, agreed with the assessee, directing the TPO to exclude forex restatement losses from the PLI calculations. The Tribunal supported this view, citing the case of Motonic India Automotive Pvt. Ltd., and remitted the issue to the AO for fresh consideration, directing the exclusion of both forex losses and gains from operating expenses and income respectively.3. Rejection of Certain Comparables:The assessee challenged the rejection of Gujarat Reclaims and Rubber Products Ltd. and Victor Gasket as comparables. The assessee argued that Gujarat Reclaims used low-quality raw materials, making it incomparable to the assessee’s high-quality products. The Tribunal agreed, stating that products made from recycled materials could not be compared to the assessee’s products. Regarding Victor Gaskets India Ltd., the Tribunal noted that the company had exited asbestos-based products, making it non-comparable to the assessee’s operations. Consequently, the Tribunal upheld the rejection of these comparables.Revenue’s Appeal:The Revenue raised issues regarding the DRP's direction to exclude forex losses from the operating costs. The Tribunal found the Revenue's appeal infructuous in light of the findings in the assessee’s appeal.Conclusion:The Tribunal partially allowed the assessee's appeal for statistical purposes and dismissed the Revenue's appeal. The Tribunal directed the AO to make suitable adjustments for customs duty and forex fluctuations while determining the ALP, and upheld the rejection of certain comparables based on the quality and nature of products.