2017 (7) TMI 812 - HC - Income Tax

Court upholds deletion of amount in Transfer Pricing case, favors Comparable Uncontrolled Price Method over Transaction Net Margin Method

The Court dismissed the appeal, upholding the Tribunal's decision to confirm the deletion of an amount in the Assessment Year 2002-03 related to Transfer ... TPA - selection of MAM - TNMM OR CUP - Held that:- CIT(A) and the Tribunal have concurrently accepted the case that there are difference in functions performed so also the risk undertaken by the assessee with respect to the transaction between related and unrelated parties. It is further considered that the rates charged by the assessee to related and unrelated parties cannot be the same and by making appropriate adjustments to the rates charged by the assesses to the related and unrelated parties, the CUP method can be used. The CIT(A) and the Tribunal accepted that the difference in rates with regard to the transactions with the related and unrelated parties are on account of various factors. The efforts of research personnel in the case of related parties based on time spent was approximately 20% lower than that of unrelated parties. The sales trading efforts for related parties was 20% of the efforts required for unrelated parties since no sales persons were dedicated towards building and fostering clients relationship. The additional cost incurred in transaction with unrelated parties vis-a-vis related parties was accepted inter alia difference in brokerage charged to related and unrelated parties. The findings arrived at by the CIT(A) on appreciation of facts and record, are the findings of fact which the Tribunal has also accepted. The said concurrent findings arrived at by the CIT(A) and the Tribunal are based on appreciation of factual matrix and the same does not give rise to any substantial question of law. The provisions of Section 92C r/w Rule 10B of the Act have been considered and applied in a plausible manner. No substantial question of law Issues:Appeal against Tribunal's order confirming deletion of amount in Assessment Year 2002-03 based on Transfer Pricing Officer's adjustment.Analysis:The appellant challenged the Tribunal's order confirming the deletion of an amount in relation to the Arms Length Price (ALP) for international transactions. The Transfer Pricing Officer (TPO) had made an adjustment of Rs. 74,79,266 under Section 92CA(3) of the Income Tax Act. The Assessing Officer then added this amount to the assessment order. The appellant contended that the Commissioner of Income Tax (Appeals) erred in substituting its view, despite accepting the Correct Price Method (CUP) over the Transaction Net Margin Method (TNMM). The appellant argued that the Assessing Officer's reasoning was sound, considering factors like Delivery Verses Payment (DVP) and Direct Custodian Settlement (DCS) mechanisms. The appellant also disputed the Commissioner's assertion that the Assessing Officer had accepted the adjustment. The Tribunal was criticized for endorsing this view. The appellant insisted that the TPO and Assessing Officer's calculations were accurate, and there was no basis for the CIT(A) and Tribunal's interference.The respondent, on the other hand, supported the CUP method endorsed by the TPO, Commissioner, and Tribunal, rejecting the TNMM proposed by the appellant. The respondent argued that the CIT(A) correctly identified differences in functions and risks between related and unrelated parties, justifying adjustments to rates charged. The respondent highlighted disparities in research efforts, sales trading, and additional costs incurred in transactions with related and unrelated parties. The CIT(A) and Tribunal's acceptance of these differences led to the conclusion that the CUP method was appropriate.The Court considered both parties' arguments and emphasized that the appeal could only be entertained on substantial questions of law. It noted the CIT(A) and Tribunal's agreement on the distinctions in functions and risks between related and unrelated party transactions. The Court endorsed the view that rates charged to related and unrelated parties should differ, supporting the use of the CUP method with appropriate adjustments. The Court found that the CIT(A) and Tribunal's factual findings were well-founded and not a basis for raising substantial legal questions. The application of Section 92C along with Rule 10B was deemed appropriate. Consequently, the Court dismissed the appeal, stating that no substantial question of law arose, and no costs were awarded.