Tuesday, July 18, 2017

Transfer Pricing Regulations- When To Apply ?

                               IT Act- ChAPTER  X   vs  sec 40 A (2) 
                                 (  OR sec, 37 (1) !)


The recently delivered ITAT Order in Taegu Tec India Pvt. Ltd. vs Dy. CIT, Bangalore (the instant case) reported @ https://indiankanoon.org/doc/163423622/ makes for an interesting reading; therefore, is chosen for a study, and critical analysis. .

Briefly stated: This is an instance, rather the latest one in a series of such instances, in which the assessee has been denied its claim for deduction of a payment made to a foreign enterprise, by resort to the TRANSFER PRICING REGULATIONS (TRP). The claim has been disallowed by the AO, and upheld in the first, and then, in second appeal as well; but, on the only ground that the assessee has failed to prove, with evidence, that the payment represents consideration for services actually rendered by the foreign enterprise. The point of issue /controversy stems principally on the fact that the disallowance has been made, by invoking the provisions of Chapter X, - in which are embodied the so called “Transfer Pricing Regulations” (TRP). Albeit, according to a better, rather right view, if at all, the admissibility or otherwise of the said claim of expenditure should have been examined and decided having regard to the appropriately applicable sec 40A (2); or, perhaps, the more appropriate provision of sec 37
The matter of dispute, therefore, necessitates a close study and independent understanding of the relevant scheme of Chapter X.

ASIDE: The facts and circumstances of the case, and the submissions made, respectively by both the parties to the dispute, may be found to have been set out in paragraphs 3, 4,and 5 of the Order. In paragraph 6,  the case law cited and relied on by the assessee – appellant’s counsel have been narrated, For the  ITAT’s observations , its findings and the grounds of the decision, the succeeding paragraphs may have to be looked through. 
2. ITAT Order (Extracts)

For the discussion herein, in view of the intended limited scope, extracts of only such portions of the Order as are considered of the utmost importance and relevance are furnished below:

“2. The appellant raised the following grounds of appeal: “ (?)
(Paragraph 2. abruptly ends; and, what are the precise grounds of appeal raised . are not stated, but left blank. No guess why so?)

“7. We heard the rival submissions and perused the material on record. The only issue that arises for consideration in the present appeal is WHETHER THE TPO IS JUSTIFIED IN MAKING ALP ADJUSTMENT AT NIL by holding that there was no necessity of incurring such expenditure and no benefit was derived and there was no proof of actual rendition of services. The TPO TREATED THE TRANSACTION OF PAYMENT OF MANAGEMENT FEE ON STAND ALONE BASIS. No doubt the law is quite settled now. It is beyond the powers of AO/TPO to question the necessity of incurring expenditure or deny the deduction on the ground that no benefit out of such expenditure was incurred. THE TPO/AO CANNOT DETERMINE THE ALP IN SUCH TRANSACTION AT NIL. The reliance in this regard can be placed on the decision of Hon'ble Delhi High Court in the case of Delhi High Court in the case of EKL Appliances Ltd., 345 ITR 241. The Hon'ble Delhi High Court has reiterated the position laid down by the Hon'ble Supreme Court in the case of Eastern Investment Ltd. v. CIT [1951] 20 ITR 1 (SC) and Sassoon J. David & Co. (P.) Ltd. v. CIT [1979] 118 ITR 261. The decision of Hon'ble Delhi High Court in the case of EKL Appliances was followed by ITA No. 1337/Bang/2010 *several coordinate benches of this Tribunal, few of them are as follows:(?)

“8. Therefore WHAT FOLLOWS FROM THE ABOVE DECISION IS THAT THE ALP OF THE MANAGEMENT SERVICES FEE CANNOT BE DETERMINED AT NIL BY QUESTIONING THE NECESSITY OR THE BENEFITS OUT OF THE EXPENDITURE INCURRED. But onus lies on the assessee to furnish the proof of actual receipt of the services by the appellant from the AE. ………………..The coordinate bench of this Tribunal in the case of Volvo India Pvt. Ltd., of which the Hon'ble AM is the author, held as follows:

"12. THUS IN THE LIGHT OF THE ABOVE LEGAL POSITION, THE ALP OF SERVICES OF AE CANNOT BE DETERMINED AT NIL BY QUESTIONING THE NECESSITY OF BENEFITS OF EXPENDITURE INCURRED. BUT THE MATTER DOES NOT END THERE. THE ONUS LIES ON THE ASSESSEE TO PROVE THAT THE SERVICES ARE ACTUALLY RENDERED BY THE AE.  But the assessee had failed to discharge this onus lying upon it despite being asked to do so by the TPO. ………………Furthermore the finding of the TPO that the invoice was raised much after the closure of the accounting year and the payment of management fee in nothing but siphoning of the profits from India with the intention of avoiding tax are serious enough to doubt the genuineness of transactions. The appellant had made no effort to controvert the findings of the TPO. Therefore, in our considered opinion the TPO/AO is justified in adopting ALP at Nil."

9. Respectively following the decision of co-ordinate bench cited supra, we hold that in the absence of proof of actual rendition of services on record, TPO was justified in making the ALP adjustment of Rs. 2,21,64,344/-.

10. As regards the other contention of the AR that the transaction of management support fee should be aggregated with other transaction and be bench marked by adopting TNMM cannot be accepted for the simple reason that when there was no proof of actual rendition of services by AE, the very transaction is a sham transaction and in which event it cannot be said that the transaction can be bundled with other transactions.
11. In the result appeal filed by the assessee is dismissed. “

Chapter X of the IT Act, titled - Special Provisions Relating to Avoidance of Tax- are embodied in sections 92 to 92F; and the Rules there under.

The special features of the TPR, in so far as they are of relevance for the discussion herein, may be summed up as under:—
The ‘enterprise’ is a party to an ‘international transaction’;
The income arises from the international transaction;
The referred transaction is one entered into by the non-resident
  enterprise with one or more other ‘enterprises’, whether a resident or
the enterprise whose income is to be taxed is an ‘associated enterprise’ in relation to the other enterprise(s) who is a party to the referred transaction.

The terms - ‘enterprise’, ‘international transaction’, and ‘associated enterprises’
are, for the above purpose, specially defined, and have to be necessarily taken
to mean and be understood accordingly.

In a given case, only if the specified conditions are satisfied, the Assessing
Officer is required to compute the income arising from the international
transaction having regard to the ‘arm’s length price’. For this purpose, the term
‘arms length price’, as defined, in essence, means a price that would have
 been charged had the transaction been between two independent enterprises
dealing with each other, as determined by market forces.

There are elaborate provisions made as to how to determine the arm’s length price. They prescribe the methods, and the arm’s length price is required to be adopted depending upon which is the most appropriate one among them, having regard to the nature of the transaction, or class of transactions, or class of associated persons, or functions performed by them, or such other relevant factors as the Board may prescribe. The methods prescribed/enumerated, besides any other method if and when prescribed by the Board, are:- comparable uncontrolled price method, resale price method, cost plus method, profit split method, and transactional net margin method. It is further provided that, where more than one price may be determined by the most appropriate method (of the prescribed five methods), the arm’s length price shall be taken to be the arithmetical mean of such prices. As, in any case, for taxing profits or income from any transaction the deductible expenses (including interest expense) have to be necessarily taken into account/entered in the computation, by way of matching like for the like, it is provided that the deductions for such expenses also shall be determined having regard to their arm’s length price.

For ready reference and appreciation, section 92, being the main and controlling section reads:

"92. Computation of income from international transaction having regard to arm’s length price.—
(1) ANY INCOME ARISING FROM AN INTERNATIONAL TRANSACTION shall be computed having regard to the arm’s length price.
Explanation.—For the removal of doubts, it is hereby clarified that the allowance for any expense or interest arising from an international transaction SHALL ALSO BE DETERMINED HAVING REGARD TO THE ARM’S LENGTH PRICE.

(A) Why the scheme of TPR could, at all, conceivably be invoked and aptly applied to the given case is unclear; rather, suffers from a faulty logic. Especially so,  as according to the AO , so also the TPO , the PRICE  ('management fees') for the TRANSFER  OF SERVICES BY THE FOREIGN ENTERPRISE(S) charged to, and paid  for by, the Indian entity has to be taken at a 'nil' figure. And, that is the only ground for disallowing the claim ; not on the basis of ‘arms length price’ . To be specially noted, - in doing so, the TPO did not have to, and in fact, had no scope hence not applied or gone through the procedure envisaged by the TPR for determination of  ‘arms length price’.

For a proper and intimate understanding of the scheme of TPR, essentially for an appreciation in proper light of the obvious intricacies thereof, recommend to go through and bear in mind the Experts' commentary on the subject scheme - say, in Palkhivala's leading Text Book , Vol II, Ninth Edition.; in particular, the experts’ commentary under the relevant crucial heads, at pages 1535 to 1539.

(B) Also may read the ITAT Order in re. Aztec Software & Technology Services Ltd.  ; and mindfully go through the critique thereof vide the published article - (2007) 165 TAXMAN pg. 165.

In that case, the Tribunal had rejected the assessee’s primary contention, on the ground of its following observations:

"Section 40A has overriding effect over the provisions relating to the computation of income under the head ‘Profits and gains of business or profession’. That means, it has overriding effect over the provisions contained in Chapter IV-D, i.e., sections 28 to 44DA only. HENCE, THE PROVISIONS OF SECTION 40A (2) WOULD NOT AND CANNOT OVERRIDE THE PROVISIONS CONTAINED IN CHAPTER X OF THE ACT. Even otherwise, if there are different provisions over the same subject, then, in law, the specific provisions would prevail. So, even assuming that provisions of section 40A are attracted, these are the general provisions applicable to all transactions while the provisions of Chapter X are specific provisions relating to international transactions only. Therefore, the provisions of Chapter X which are more specific would apply to the instant case."

It is thus seen that the Tribunal had proceeded on the premise and basis of its conviction that even ‘expenditure’, because of its arising from an international transaction, is, same way as ‘income’, liable to be processed as per the special provisions of the Act. The rationale behind such a view, to put it mildly, apparently deserves a re-examination/review.

Be that as it may, in any view, even according to the observations and the case law cited and approved of by the ITAT in the instant case (see the highlighted portion of paragraph 8., above) the reasoning given for applying the TRP, not the appropriate sec 40A (2), better sec 37 (1), is, to say the least, not logically sound and sustainable. For that matter, the TRP would be within his powers only had he to follow, and in a given case strictly followed, both in letter and spirit,  as mandated, the procedure laid down in the Act; to be precise, the ‘nil’ transfer has not been arrived at by him by applying any of the standards/methods for evaluation of ‘trp’; as, on the stated premise/stance taken by the AO,  that would have been a non-starter, in any case.  

(C) Importance of properly formulated ‘grounds’ /’propositions’ for judicious Adjudcation:

As observed herein before (ref. Paragraph 2 of the ITAT Order), the
‘grounds of appeal’- that is the specific propositions - addressed for consideration, are not found stated; as such, no knowing what exactly those were or how had been formulated. Be that as it may, the crucial point to be noted and emphasized is this:  Without propositions aptly formulated and eminently framed and presented, - which is essential for enabling the ITAT (or Court) to keep in focus, it is most likely to prove unhelpful for a proper appreciation of the real issues calling for adjudication.

To illustrate: Attention may be invited to an instance as covered in a HC Judgment; and the published critique thereof vide [2006]156 TAXMAN 121 (ART).
In that case, the point of dispute was taken up in reference to the High Court by the Revenue. The question as framed by the Revenue read :
"Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the foreign currency of Rs. 4,56,980  confiscated by the customs authorities from the assessee should be allowed as a loss to the assessee while assessing the same as unexplained income of the assessee under section 69A, in view of the fact that the source of such foreign currency has not been explained, as a result of which the income is assessable under the head ‘Other sources’ and not under the head ‘Business or profession’ and further, the loss of the amount due to the confiscation being in the nature of personal loss is not eligible for set off?" (p. 648)

However, the Tribunal, on its own, chose to and re-framed the question and referred it to the High Court as under:

"Whether, the foreign currency of Rs. 4,56,980 confiscated from the assessee was allowable as a loss to the assessee." (p. 648)

The referred question, as may be observed, was, in comparison with the comprehensive question as proposed by the Revenue, so brief that it had omitted to bring to focus all such relevant points as required for the Court to give a well-considered and proper opinion. The Tribunal had obviously failed to appreciate that despite the old proverb - Brevity is the soul of wit, in matters of law, especially in court proceedings, brevity at the cost of clarity may result in an unintended or undesirable consequence. That it actually turned out to be so is borne out by the fact that, in the Court’s judgment, in answering the referred question, the relevant section 69A was not considered.


A) On the aspect as to why sec 37 (1) , not sec 40 (A) (2), would have been the more appropriate provision to have been applied : Sec 40 (A) (2) is, in terms, applicable, provided the issue for decision/adjudication is whether dispute, in a given case, of the claim for deduction of any expenditure, is founded on the AO's opinion that such expenditure is EXCESSIVE OR UNREASONABLE having regard to the FAIR MARKET VALUE of the goods or services, facilities for which the payment is made or......" (FONT supplied)

In the instant case, however, according to the AO, his opinion is different; in that, assessee has not proved, with evidence, that the payment is for services actually rendered  and therefore, the entire payment is not admissible.
     Cross Refer  >  

B) The stakes involved are too high and significant. Hence, the assessee –appellant is most likely to decide to, pursue the issue (s) by taking on in further proceedings. For that purpose, to help in suitably framing the propositions, and successfully addressing the issues for adjudication, the line of reasoning canvassed for, and the viewpoints stressed, in the under mentioned published articles, it is suggested, may be looked through:  

Tax Treaties v. Transfer Pricing            (2007) 10 CAT pg. 535
ITAT on Transfer Pricing Regulations  (2007) 165 TAXMAN pg. 165
In Re. Cargill India ((P) Ltd.               (2008) 301 ITR pg. 13 (Journal)
                       Tax Treaties  v Transfer Pricing            (2008) 172 TAXMAN pg. 49 (Mag.)

TAIL Note: Related HERE >
Page 1 of 61 ITA No.1413/Bang/2010 1 INCOME TAX ... - itatonline.org

Disclaimer: The analytical study undertaken herein, for satisfying nothing else but own academic interest, is mainly with a view to having one’s own thoughts cleared; and, only incidentally, for sharing with equally interested others own viewpoints. The object is to thereby try and stimulate ideas and thoughts, that hopefully will help others in aiming at an independent contribution of some value in its true sense ; but altruistically for the common good in its profound sense.

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