2024 (4) TMI 141 - HC - Income Tax

Court Affirms ITAT's Decision for Fresh Adjudication on Transfer Pricing; Dismisses Appeal on Capacity Utilization.

The HC upheld the ITAT's decision, affirming the directions for fresh adjudication by the TPO regarding the transfer pricing adjustment. The court found ... TP Adjustment - relevance of capacity under utilisation factor alongwith other factors for determining TP adjustment - comparable selection - ITAT directing to make appropriate capacity utilization adjustment while computing net margin of the tested party (i.e. assessee) - HELD THAT:- In the assessment order the TPO provided all set of 12 comparables to assessee. The set of 3 comparables selected by assessee were sent for bench marking. Assessee raised various objections to the proposed comparison and the main ground of objection was that assessee had started production only in the month of May 2007 and the sales have started only from the month of July 2007. Whereas, the comparables were in the business for many years. This objection was rejected by the TPO. The CIT(A) upheld the findings of the TPO. The ITAT has rightly came to a conclusion that comparison has to be made between two equals. We agree with the finding of the ITAT that assessee who started the business in a particular year cannot be compared with assessee who are doing business for many years. On facts, the ITAT has given a finding that though there has been no major sales throughout the whole year, the expenses incurred by assessee are almost the same as compared to the expenses of the next year. It is also a fact that assessee had achieved sales of Rs. 62 crores in the next assessment year and assessee could achieve that turnover because the business by that time had got stabilised. No infirmity in the order passed by the ITAT. Therefore, no substantial question of law arise. ISSUES PRESENTED AND CONSIDERED 1. Whether the Tribunal was correct in directing reconsideration of comparables and appropriate capacity-utilisation adjustment for determining the net margin of the tested party under the transactional net margin method (TNMM), given objections that the tested party commenced operations only in the relevant year and therefore is not comparable to long-established enterprises. 2. (Narrowed) Whether the only issue to be considered is the correctness of the Tribunal's direction to reassess comparability and capacity-utilisation effects (the appellant agreed that only the first of the two formulated substantial questions be considered). ISSUE-WISE DETAILED ANALYSIS Issue 1 - Validity of Tribunal's direction to reassess comparables and consider capacity-utilisation adjustments when the tested party was a new entrant Legal framework: Transfer pricing under the Income Tax Act requires arm's-length determination of international transactions. Where TNMM is applied, comparability between the tested party and uncontrolled comparable enterprises is central; adjustments for differences (including capacity utilisation) may be relevant to ensure comparability. Rule 10B(1)(e)(iii) of the Income-tax Rules 1962 was cited in the proceedings as addressing adjustments while computing net margins of comparables when TNMM is the most appropriate method. Precedent treatment: The appellant relied on a line of authority and a jurisdictional High Court decision (referred to in the appeal) purportedly limiting capacity-utilisation adjustments to the comparables' margins under Rule 10B(1)(e)(iii). The Tribunal ordered reconsideration of certain comparables and capacity-utilisation factors. The present Court did not find it necessary to re-decide the rule provision's scope against those precedents because the factual sufficiency of comparability was determinative. Interpretation and reasoning: The Court focused on factual comparability: the tested party commenced production mid-year and had negligible sales in that year, whereas several proposed comparables were long-established entities with sustained operations. The Tribunal had directed the Transfer Pricing Officer to reassess capacity-utilisation and to re-examine two specific comparables the assessee objected to. The Court agreed with the Tribunal's core proposition that comparability requires 'comparison between two equals' and that a new entrant with limited operations in the relevant year cannot be fairly compared to enterprises that have been in business for many years and enjoy stabilised turnover. The Court noted that the tested party's expenses in the relevant year were similar to the following year when turnover increased substantially due to business stabilisation - a factual matrix that supports the need for reassessment rather than mechanical acceptance of the TPO's original comparable set. The Court therefore endorsed the Tribunal's direction for fresh adjudication on benchmarking and capacity-utilisation factors rather than treating the TPO's selection as conclusive. Ratio vs. Obiter: Ratio - The Tribunal's direction to revisit comparability and capacity-utilisation adjustments where the tested party is a new entrant with limited operations is upheld as a proper application of the comparability principle under transfer-pricing law. Obiter - The Court did not pronounce a definitive interpretive rule on the exclusive textual scope of Rule 10B(1)(e)(iii) vis-à-vis where adjustments must be made (tested party vs comparables) because the appeal was decided on the facts and the Tribunal's exercise of discretion; any broader statement on the rule would be obiter. Conclusions: The Court found no infirmity in the Tribunal's order directing the TPO to reconsider capacity-utilisation and the suitability of specific comparables. Given the tested party's commencement of production and limited sales in the relevant year, comparison with long-established enterprises was inappropriate without adjustment or proper selection of comparables. Accordingly, no substantial question of law arose from the Tribunal's factual and discretionary direction, and the appeal was dismissed.