2019 (8) TMI 403 - AT - Income Tax

Bombay High Court overturns Tribunal's transfer pricing ruling, emphasizes fair treatment and judicial consistency.

The Hon'ble Bombay High Court set aside the Tribunal's order on the Transfer Pricing issue and remanded the case for fresh disposal. The Court directed ... TP Adjustment - comparable selection criteria - TPO has excluded the loss making companies - HELD THAT:- TPO has excluded the loss making companies we find he has not excluded the high profit making companies from the comparables. We find merit in the submission of the Ld. Counsel for the assessee that the Annexure given by the TPO during the assessment proceedings is incomplete and some fresh sets were given according to which the average ALP margin comes to 6.02% as against 10% on cost shown by the assessee. It is only after this incomplete list showing lesser profit than the profit declared by the assessee was brought to the notice of the TPO that he excluded the 47 loss making companies to determine the mean average profit at 20.42%. We, therefore, find merit in the submission of assessee that there is no basis for only excluding the loss making companies and not excluding the high profit making companies or companies which are not at all comparable considering their size, volume of turnover and other factors. In our opinion, the whole exercise of selecting the comparables by the TPO is not proper and is in a haphazard manner. In this view of the matter and in view of the detailed discussion by the Ld. CIT(A) on this issue, we do not find any infirmity in his order and accordingly upheld the same. See FROST & SULLIVAN (I) (P.) LTD. [2012 (4) TMI 120 - ITAT MUMBAI] - Decided against revenue. Issues Involved:1. Transfer Pricing Adjustment2. Non-consideration of submissions and precedents3. Non-furnishing of comparable details4. Equality of treatment in identical casesDetailed Analysis:1. Transfer Pricing Adjustment:The matter concerns the Transfer Pricing Adjustment for the Assessment Year 2004-05. The appellant, engaged in research, marketing, and consultancy support services, entered into an international transaction with its Associated Enterprise (AE), Gartner Ireland. The Transfer Pricing Officer (TPO) determined the margin at 20.42% based on 102 selected comparables, which was challenged by the appellant. The Commissioner of Income Tax (Appeals) [CIT(A)] allowed the appellant's appeal, citing non-furnishing of Annexure I by the TPO, which contained details of the comparables. Consequently, the adjustment was deleted. However, the Tribunal set aside the CIT(A)'s order and remanded the issue back to the TPO for fresh consideration.2. Non-consideration of submissions and precedents:The appellant contended that the Tribunal did not consider the decision in the case of M/s Frost & Sullivan (I) Pvt. Ltd., which involved identical facts and was decided in favor of the assessee. The Tribunal's failure to follow this precedent was challenged as it led to a feeling of unfair treatment. The Hon’ble Bombay High Court noted that the Tribunal should have considered the decision in M/s Frost & Sullivan in greater detail before concluding that it was not applicable to the appellant’s case.3. Non-furnishing of comparable details:The CIT(A) noted that the TPO did not furnish Annexure I, which contained details of the comparables, to the appellant. This was deemed a serious violation of the principles of natural justice. The Tribunal in the case of M/s Frost & Sullivan also observed similar violations, leading to the deletion of the Transfer Pricing Adjustment. The Tribunal in the present case was expected to consider this aspect but failed to do so adequately.4. Equality of treatment in identical cases:The principle of equality of treatment was emphasized, as the Tribunal should have followed its decision in the case of M/s Frost & Sullivan, given the identical facts. The High Court highlighted that the Tribunal must ensure that similar cases are treated alike unless there is a good cause for deviation, which should be clearly reflected in the order. The Tribunal's general statement that comparability issues are factual and cannot be applied as a general principle was insufficient to distinguish the reliance on the precedent.Conclusion:The Hon’ble Bombay High Court set aside the Tribunal's order regarding the Transfer Pricing issue and remanded the case back to the Tribunal for fresh disposal in accordance with the law. The Tribunal was directed to consider the applicability of the decision in M/s Frost & Sullivan in detail and ensure fair treatment by addressing the appellant’s contentions adequately.Final Order:The Tribunal, upon reconsideration, dismissed the revenue's appeal on the Transfer Pricing issue by applying the decision in M/s Frost & Sullivan. The Tribunal noted that the same TPO passed similar orders for the same Assessment Year on the same date for both assessees, and the CIT(A) deleted the adjustments in both cases due to non-furnishing of comparable details. The Tribunal upheld the CIT(A)'s order, emphasizing the need for judicial consistency and fair treatment. The revenue's appeal was dismissed, and the order was pronounced on 30th July 2019.