2025 (7) TMI 1303 - AT - Income Tax

Pharmaceutical distributor wins transfer pricing case on expense recoveries from associated enterprises without markup requirement

Eli Lilly And Company (India) Private Limited Versus ACIT, Circle-1 (1), Gurgaon, Haryana

Eli Lilly And Company (India) Private Limited Versus ACIT, Circle-1 (1), Gurgaon, Haryana - TMI ISSUES: Whether the recovery of expenses from Associated Enterprises (AEs) characterized as Business Support Services (BSS) can be re-characterized by the tax authorities for transfer pricing adjustment.Whether the re-characterization of reimbursement of expenses as BSS with mark-up is justified under the Income Tax Act, 1961.Whether, even assuming the re-characterization is correct, a transfer pricing adjustment is warranted based on the benchmarking and arm's length range. RULINGS / HOLDINGS: The recovery of expenses from AEs described as business support services in the debit note was 'inadvertent' and the absence of mark-up ('Nil') in the debit note demonstrates that the transaction was merely reimbursement of expenses, not provision of BSS.The assessee is entitled to a mark-up only when invoices/debit notes are raised specifically for business support services; the lack of mark-up negates the characterization as BSS.Even if the recovery of expenses is considered part of the BSS segment revenue without mark-up, the revised operating mark-up of 10.18% falls within the arm's length range of 4.03% to 14.23%, negating the need for any transfer pricing adjustment.Accordingly, the transfer pricing adjustment of Rs. 21,44,324/- made on account of re-characterization of expense recovery as BSS is not warranted. RATIONALE: The court applied the statutory provisions under the Income Tax Act, 1961, specifically sections relating to transfer pricing adjustments and benchmarking under section 92CA(3) and 144C(5).The decision relied on the factual matrix including the debit notes raised by the assessee, which explicitly showed 'Nil' mark-up, indicating reimbursement rather than a service transaction.The court considered the benchmarking methodology adopted by the Transfer Pricing Officer (TPO), applying the Transactional Net Margin Method (TNMM) and the arm's length range determined therein.The reasoning emphasized the importance of substance over form in characterizing international transactions and the correctness of the assessee's claim that the debit note description was inadvertent.No doctrinal shift or dissent was noted; the judgment reaffirmed established transfer pricing principles and the requirement that adjustments must be based on accurate characterization of transactions and benchmarking within the arm's length range.