2023 (1) TMI 465 - AT - Income Tax

Tribunal upholds CIT(A)'s decision on transfer pricing adjustments, emphasizes TPO's role in ALP determination.

DCIT, Circle 4 (2) (1), Mumbai, Versus M/s Hamon Cooling Systems Private Limited,

The Tribunal upheld the CIT(A)'s decision to delete transfer pricing adjustments for Management Fees and R&D expenses, emphasizing the TPO's role in ... TP Adjustment on account of the Management fees and payment of R&D expenses - HELD THAT:- We note that the TPO had accepted that some services forming part of Research & Development Service, and Management Service were rendered to the Assessee. However, since the Assessee had failed to provide the exact cost details and break-up, the ALP of the services as a whole was taken as “Nil'. Since during the Assessment Year 2012-13 the TPO had adopted the same approach and determined ALP on ad-hoc basis as “Nil‟, the CIT(A) was justified in deleting the transfer pricing additions by following the judgment of Lever India Exports Ltd [2020 (5) TMI 631 - ITAT MUMBAI] and the decision of the Tribunal in appeals for the preceding assessment years 2007-08/2009-10/2010-11, and 2011-12. We do not find any infirmity in the order passed by the CIT(A). Assessee had furnished relevant documents/details of the actual research & development cost vide letter dated 09.11.2015 and 13.01.2016. As regards, failure of the Assessee to provide service wise break-up of management fee, the Assessee had explained that the Assessee was being charged a lump sum fee for the management services and therefore, was not able to furnish the service-wise break up.TPO failed to take the same into consideration. Ground No. 1 to 5 raised by the Revenue are dismissed. Issues Involved:1. Adjustment of Management Fees and R&D Expenses2. Evaluation of Transfer Pricing Officer's (TPO) Observations3. Reliance on Previous Tribunal Judgments4. Contemporaneous Facts and Independent Evaluation for Each Assessment Year5. Jurisdiction and Role of TPO in Determining Arm's Length Price (ALP)Detailed Analysis:1. Adjustment of Management Fees and R&D Expenses:The Revenue challenged the CIT(A)'s decision to vacate adjustments related to Management Fees and R&D expenses without examining the TPO's observations on the inadequacy of documentation submitted by the Assessee. The TPO had proposed upward adjustments of INR 1,72,28,220 for R&D expenses and INR 1,43,25,803 for Management Fees, citing insufficient documentation to verify actual costs and services rendered. The ALP for these services was considered 'Nil' by the TPO due to the lack of detailed cost information.2. Evaluation of Transfer Pricing Officer's (TPO) Observations:The Revenue argued that the CIT(A) failed to evaluate the facts and evidence examined by the TPO, merely relying on previous Tribunal judgments. The TPO's role is to determine the ALP of international transactions, not to assess the genuineness of the expenses, as established in CIT Vs Lever India Exports Ltd and CIT Vs Cushman and Wakefield (India) Pvt Ltd. The TPO had accepted that some services were rendered but considered the ALP as 'Nil' due to the Assessee's failure to provide exact cost details.3. Reliance on Previous Tribunal Judgments:The CIT(A) allowed the Assessee's appeal by following the Tribunal's decisions for Assessment Years 2007-08, 2010-11, and 2011-12, where similar adjustments were deleted. The Tribunal had previously held that the TPO's adjustments were not based on ALP considerations but on the non-rendition of services, which is outside the TPO's jurisdiction.4. Contemporaneous Facts and Independent Evaluation for Each Assessment Year:The Revenue contended that transfer pricing audits are fact-intensive and must be evaluated independently for each assessment year. The CIT(A) was criticized for not considering the contemporaneous facts for the Assessment Year 2012-13. However, the Tribunal found that the TPO had adopted the same approach in determining the ALP on an ad-hoc basis as 'Nil' for the current year, similar to previous years.5. Jurisdiction and Role of TPO in Determining Arm's Length Price (ALP):The TPO's jurisdiction is limited to determining the ALP of international transactions. The TPO should not assess whether the expenditure passes the test of Section 37 of the Act or the genuineness of the expenditure. The Tribunal emphasized that the TPO must determine the ALP based on the methods prescribed under Chapter X of the Income Tax Act and relevant rules, not on the adequacy of documentation regarding cost allocation.Conclusion:The Tribunal upheld the CIT(A)'s decision to delete the transfer pricing adjustments for Management Fees and R&D expenses, finding no infirmity in the CIT(A)'s order. The Tribunal reiterated that the TPO's role is confined to determining the ALP and not the genuineness of the expenses. The appeal by the Revenue was dismissed, affirming that the CIT(A) was justified in following previous Tribunal decisions and the judgment of the Hon'ble Bombay High Court in similar cases. The Assessee had provided sufficient documentation to support the costs, and the failure to provide a service-wise break-up was explained as the fees were charged on a lump sum basis. Consequently, the grounds raised by the Revenue were dismissed, and the appeal was pronounced on 19.09.2022.