2020 (10) TMI 240 - AT - Income Tax

Tribunal Upholds DRP's Directions & AO's Assessment Order, Dismissing Appeal. Emphasis on FAR Analysis.

Elcome Technologies Private Limited Versus Deputy Commissioner of Income Tax-Range 15 (1) (1), Mumbai

The Tribunal upheld the DRP's directions and the AO's final assessment order, dismissing the appeal. The key points include the emphasis on annual ... TP Adjustment - comparable selection - AO applying internal RPM (based on sale price quoted for goods in the tender documents) for benchmarking the payments made - comparability of PAE Ltd. - HELD THAT:- There is no similarity in the products between the appellant and PAE Ltd as gleaned from the activities delineated. Because of lack of similarity, it has impact on functions performed and on gross margins earned. In the instant case, the product differences between the appellant and PAE Ltd. are not at all acceptable in applying the RPM. In RPM, the compensation for a distribution company should be the same. The similar level of compensation is expected for performing similar functions across different activities. In the instant case similar level of compensation is not expected for performing similar functions across different activities. In view of the above factual scenario and principles governing RPM, the AO has rightly excluded PAE Ltd in the final set of comparables. To hold otherwise would be to exalt artifice above reality and to deprive the settled principles in question of all relevant purpose. Issues Involved:1. Transfer pricing adjustment related to the international transaction of purchasing finished goods.2. Rejection of comparables (P L Enterprise Ltd. and PAE Ltd.) by the DRP and AO.3. Application of the +/- 5% range under proviso to section 92C(2) of the Income Tax Act.4. Charging of interest under Section 234B and 234C.5. Initiation of penalty proceedings under section 271(1)(c).Issue-Wise Detailed Analysis:1. Transfer Pricing Adjustment:The appellant, a subsidiary of Leica Geosystems AG, engaged in trading surveying and measurement equipment, filed its return for AY 2011-12. The AO made a reference to the TPO, who proposed a transfer pricing adjustment of Rs. 9,33,15,374/-. The AO passed a draft assessment order, which the appellant contested before the DRP. The DRP directed the AO to apply the Resale Price Method (RPM) to the AE transaction only and compare the gross profit with selected comparables, resulting in a reduced adjustment of Rs. 2,70,69,241/-.2. Rejection of Comparables:The DRP rejected P L Enterprise Ltd. and PAE Ltd. as comparables. The appellant argued that PAE Ltd. had been accepted as a comparable in the previous year and should be included. The DRP observed that PAE Ltd. was involved in trading low-end items like auto batteries and solar power systems, which face competition from unorganized sectors, unlike the appellant's specialized products. The Tribunal upheld the DRP's decision, emphasizing that comparability must be assessed annually based on functions, assets, and risks (FAR) analysis.3. Application of +/- 5% Range:The appellant contended that if PAE Ltd. were included, the arithmetic mean of the gross margin of the comparables would fit within the +/- 5% range of its gross margin (28%), making the transaction at arm's length. The Tribunal, however, upheld the exclusion of PAE Ltd., noting significant differences in products and functions.4. Charging of Interest:The appellant's ground regarding the charging of interest under Sections 234B and 234C was deemed consequential. The Tribunal did not provide a detailed analysis, indicating that the outcome on this ground would follow the primary issue's resolution.5. Initiation of Penalty Proceedings:The initiation of penalty proceedings under section 271(1)(c) was considered premature. The Tribunal did not delve into this issue, as it was contingent on the final outcome of the primary transfer pricing adjustment.Conclusion:The Tribunal dismissed the appeal, upholding the DRP's directions and the AO's final assessment order. The key takeaway is the emphasis on annual assessment of comparability based on FAR analysis and the rejection of PAE Ltd. as a comparable due to significant differences in products and market conditions. The Tribunal's decision underscores the principle that transfer pricing adjustments must reflect realistic and functionally comparable transactions.