2021 (1) TMI 682 - AT - Income Tax

Tribunal upholds Transactional Net Margin Method for Transfer Pricing appeal

USG India Pvt. Ltd Versus ACIT, Circle-27 (1), New Delhi

The appeal was partly allowed, with the tribunal upholding the use of the Transactional Net Margin Method (TNMM) as the most appropriate method for ... TP Adjustment - Selection of MAM - Resale Price Method Vs. Transactional Net Margin Method - TPO held that TNMM should be the most appropriate method AND selected 4 comparables whose margin was 4.70 % computed the margin of the assessee (-) 26.76% and proposed an adjustment u/section 92CA(3) - HELD THAT:- Admittedly in this case the assessee itself has adopted the transactional net margin method as the most appropriate method for benchmarking itself for international transaction by import of finished goods. As during the course of hearing before the ld TPO assessee submitted that RPM should be taken as the most appropriate method. In its TP Study report assessee itself submitted that assesses lacks information about the other companies, so that comparables are not available in public domain, so Resale Price method cannot be the most appropriate method. Owing to this limitation, the RPM was rejected. In case of resale price method only the gross profit margin is required to be computed whereas in the case of the assessee, it has incurred salaries and the employees benefit expenses of ₹ 1.49 crores and has incurred operating and other expenses of ₹ 1.93 crores out of total revenue of ₹ 7.92 crores - Assessee has incurred employee benefit and other expenses of approximately ₹ 3.5 Crores on a revenue of ₹ 7.92 Crores. In view of this, we did not find any infirmity in the order of the lower authorities in adopting TNMM as the most appropriate method. In view of this ground Nos. 1 and 2 of the appeal of the assessee are dismissed. We set aside the whole issue back to the file of the ld TPO with a direction to consider the fresh search of the comparables by the assessee. The assessee is directed to submit the complete search along with accept/ reject matrix and the computation of the margin of TNMM method before the ld TPO and the ld TPO may verify it and after giving proper opportunity of hearing to the assessee may compute the correct margin and consequent adjutsment. Accordingly ground No. 3 and 4 of the appeal is allowed with above direction Issues Involved:1. Adjustment of Rs. 1,07,62,915 to the total income of the appellant on account of the alleged difference in the arm's length price of the international transaction of import of finished goods.2. Selection of the most appropriate method for Transfer Pricing (Resale Price Method vs. Transactional Net Margin Method).3. Fresh search for comparables and the computation of margins under TNMM.4. Computation of incorrect working capital adjusted net profit margin of the comparables.5. Levying interest under sections 234B, 234C, and 234D of the Income Tax Act.Detailed Analysis:Issue 1: Adjustment of Rs. 1,07,62,915The appeal was filed by the appellant against the order passed by the ACIT, determining the total income at a loss of Rs. 1,48,81,535 against the returned loss of Rs. 2,59,14,450. The dispute centered around an adjustment of Rs. 1,07,62,915 made by the TPO in conformity with the directions of the DRP. The adjustment was related to the alleged difference in the arm's length price of the international transaction of import of finished goods.Issue 2: Selection of the Most Appropriate MethodThe appellant initially adopted the Transactional Net Margin Method (TNMM) in its Transfer Pricing (TP) study but later requested the use of the Resale Price Method (RPM) during the TP proceedings. The TPO and DRP rejected the RPM, citing reasons such as lack of product and functional comparability, and the significant expenses incurred by the appellant on employees and other operational costs. The TPO noted that RPM is more accurate when the resale price margin is realized within a short time of resale after purchase. The DRP upheld the TPO's decision to use TNMM, emphasizing that the comparables chosen by the appellant failed trading filters and their major revenue sources were not from trading functions. The tribunal found no infirmity in the lower authorities' decision to adopt TNMM as the most appropriate method.Issue 3: Fresh Search for ComparablesThe tribunal set aside the issue of fresh search for comparables back to the TPO, directing the TPO to consider the fresh search conducted by the appellant. The appellant was instructed to submit a complete search along with an accept/reject matrix and the computation of the margin under TNMM. The TPO was directed to verify the submission and compute the correct margin and consequent adjustment after providing a proper opportunity of hearing to the appellant.Issue 4: Computation of Incorrect Working Capital Adjusted Net Profit MarginThe appellant contended that the TPO computed incorrect working capital adjusted net profit margin of the comparables. The tribunal directed the TPO to consider the fresh search of comparables and verify the margins computed by the appellant, ensuring the correct margin and consequent adjustment.Issue 5: Levying Interest under Sections 234B, 234C, and 234DThe tribunal dismissed the ground related to the charging of interest under sections 234B, 234C, and 234D, as it was consequential in nature.Conclusion:The appeal was partly allowed. The tribunal upheld the use of TNMM as the most appropriate method and dismissed the grounds related to RPM. The issue of fresh search for comparables was remanded back to the TPO for verification and computation of correct margins. The ground related to the charging of interest was dismissed as consequential.