2016 (4) TMI 521 - AT - Income Tax

ITAT partially allows appeal, deletes adjustments on royalty & import/export issues. Capital losses not addressed.

The ITAT partially allowed the appeal, ruling in favor of the assessee by deleting the adjustments concerning royalty payments, import of PTOP, and export ... Transfer pricing adjustment - Addition in respect of payment of royalty to the associated enterprise - rejection of assessee’s benchmarking under CUP method - Held that:- There cannot be an adhoc adjustment in the course of ascertaining the arm’s length price. If the Transfer Pricing Officer was to reject the assessee’s benchmarking on the basis of Reserve Bank of India’s approval under CUP method, the Transfer Pricing Officer was required to decide the correct mechanism of deciding the arm’s length price and compute the arm’s length price on that basis. It was not open to him to simply brush aside the benchmarking done by the assessee and adopt the NIL value. That is not a scientific method of determining the arm’s length price and it cannot meet any judicial approval. In this view of the matter, and also having regard to a series of judicial precedents from the co-ordinate benches holding that even Reserve Bank of India’s approval of royalty can be a reasonable CUP input for determining arm’s length price - Decided in favour of assessee Addition in respect of import of product PTOP from the associated enterprise - Held that:- The quantities and sale instances in the case of the tested party are fewer but that does not lead to the inference that a comparison cannot be made at all. It is only when comparable instances are of relative smaller quantity and based on fewer sale instances that the bonafides of comparable are in the dock. When the quantity and the instances of comparables is much higher vis-a-vis the transaction with AE, issues cannot be raised about the bonafides. So far as CUP comparability is concerned, differences in the size, geographical location etc. cannot be reason enough to discard the comparables, unless it is shown that such factors influence conditions in the market in which respective parties to the transactions operate. There is, in the orders of the authorities below, not even a whisper about the impact, if any, of these factors on the market conditions. It is also important to bear in mind the fact that the imports are of very small quantities which does not even account for one percent of total transactions. In the light of all these factors, and particularly bearing in mind smallness of the amount involved, in our considered view, it was not a fit case for rejection of CUP method, as employed by the assessee. We, therefore, deem it fit and proper to uphold the grievance of the assessee and direct the Assessing Officer to delete the impugned ALP adjustment - Decided in favour of assessee Addition in respect of export of the product IBB to the associated enterprise - Held that:- We have noted that the assessee has incurred a loss on this transaction but when arm’s length price is determined on the basis of CUP, it is wholly immaterial as to whether the assessee has earned profit or incurred a loss. The Transfer Pricing Officer was thus swayed by a wholly irrelevant consideration. The suitability of CUP method cannot be rejected because of the commercial outcome of the transaction being in the nature of loss. - Decided in favour of assessee Issues Involved:1. Addition under Section 92CA(3) in respect of payment of royalty to the associated enterprise.2. Addition under Section 92CA(3) in respect of import of product PTOP from the associated enterprise.3. Addition under Section 92CA(3) in respect of export of the product IBB to the associated enterprise.4. Set off of short-term capital loss against short-term capital gains.5. Set off of business loss against short-term and long-term capital gains.Issue-wise Detailed Analysis:1. Addition under Section 92CA(3) in respect of payment of royalty to the associated enterprise:The assessee challenged the addition of Rs. 2,71,11,495 under Section 92CA(3) related to royalty payments to Schenectady International Inc. The Transfer Pricing Officer (TPO) and the Disputes Resolution Panel (DRP) had rejected the arm's length price (ALP) claimed by the assessee, which was based on the Reserve Bank of India's (RBI) approval. The TPO determined the ALP to be NIL, arguing that the assessee incurred an operating loss during the year. The ITAT found that the TPO's method was unscientific and not judicially acceptable. The ITAT upheld the assessee's grievance, citing judicial precedents that RBI approval can be a reasonable CUP input for determining ALP. The adjustment of Rs. 2,71,11,495 was deleted, and the assessee's appeal was allowed.2. Addition under Section 92CA(3) in respect of import of product PTOP from the associated enterprise:The assessee contested the addition of Rs. 8,28,196 related to the import of PTOP from Schenectady Korea Limited. The TPO had determined the ALP to be NIL due to the lack of comparable uncontrolled transactions provided by the assessee. The DRP upheld the adjustment but limited it to Rs. 8,28,196 by adopting the Transactional Net Margin Method (TNMM). The ITAT noted that PTOP is a generic product and that the CUP method, as employed by the assessee, was appropriate. The ITAT found that the geographical differences and quantity variations did not materially affect the comparability. The ITAT upheld the assessee's grievance and directed the deletion of the adjustment of Rs. 8,28,196.3. Addition under Section 92CA(3) in respect of export of the product IBB to the associated enterprise:The assessee challenged the addition of Rs. 41,19,424 related to the export of IBB. The TPO had determined the ALP adjustment based on the assessee's incurred loss on the transaction and applied a markup of 10.65% on the cost. The DRP confirmed the TPO's action, rejecting the assessee's CUP data based on International Business Information Services (IBIS). The ITAT found that IBB is a generic product, and the CUP method based on customs data was reasonable. The ITAT held that the TPO's rejection of the CUP method due to the loss incurred was irrelevant. The ITAT upheld the assessee's grievance and deleted the adjustment of Rs. 41,19,424.4. Set off of short-term capital loss against short-term capital gains:The assessee raised grievances about the AO not following the DRP's direction to set off short-term capital loss of Rs. 1,44,134 against short-term capital gains of Rs. 29,12,827. The assessee argued that the AO erred in first adjusting the business losses against the capital gains. No specific arguments were advanced, and these grievances were treated as not pressed.5. Set off of business loss against short-term and long-term capital gains:The assessee contested the AO's action of setting off business loss of Rs. 14,38,04,694 against short-term capital gain of Rs. 29,12,827 and long-term capital gain of Rs. 25,29,16,974. The assessee argued that the business loss should be carried forward instead of treating the total income as nil. No specific arguments were advanced, and these grievances were treated as not pressed.Conclusion:The appeal was partly allowed, with the ITAT deleting the adjustments related to royalty payments, import of PTOP, and export of IBB. The grievances regarding the set-off of capital losses and business losses were not pressed and thus not adjudicated.