2011 (7) TMI 315 - AT - Income Tax

Arm Length Price (ALP) - transfer pricing adjustment made by determining the ALP - The assessee has approached DRP only against the order of the TPO and it is the duty of the DRP to consider the assessee s objections to the TPO orders in judicious way. By summarily accepting the order of the TPO, the DRP has failed to perform the duty entrusted to it. However, since the TPO has not dealt with the objections raised by the assessee against the comparables selected by the TPO, we deem it fit and proper to remit the issue to the file of the assessing authority for taking necessary action of making a reference to the TPO to deal with the assessee s objections and for passing a speaking order. determination of Arm Length Price (ALP) by Transfer Pricing Officer (TPO) -

Summary

Issues:
1. Reallocation of trading expenses between 10A and non-10A units.
2. Determination of Arm Length Price (ALP) by Transfer Pricing Officer (TPO).

Issue 1: Reallocation of Trading Expenses
The appeal involved a dispute regarding the reallocation of trading expenses between 10A and non-10A units for the assessment year 2006-07. The assessee contended that the Assessing Officer had incorrectly allocated expenses, leading to a disallowance. The Tribunal noted that this issue had been contentious since 1997-98. The assessee relied on previous Tribunal decisions in their favor. The Tribunal observed that the nature of expenses was trading expenses, and the challenge was about their allocation between units. Referring to past judgments, the Tribunal found in favor of the assessee, noting that the issue was already covered by previous Tribunal orders. Consequently, the Tribunal dismissed the ground of appeal related to this issue, allowing the assessee's contentions.

Issue 2: Determination of Arm Length Price (ALP)
The second issue pertained to the determination of the Arm Length Price (ALP) by the Transfer Pricing Officer (TPO) for transactions involving importing medical equipment from associated enterprises. The TPO had adopted a comparable company for the ALP determination, disregarding the objections raised by the assessee. The Dispute Resolution Panel (DRP) summarily accepted the TPO's findings without adequately considering the assessee's objections. The assessee argued that the Resale Price Method (R.P.M) was the appropriate method for determining ALP based on previous Tribunal decisions. The Tribunal held that the TPO and DRP failed to address the objections raised by the assessee in a judicious manner. As a result, the Tribunal remitted the issue back to the assessing authority for proper consideration, directing them to give the assessee a fair hearing and consider relevant judicial precedents while determining the ALP. The appeal was allowed for statistical purposes.

In conclusion, the judgment addressed the issues of reallocation of trading expenses and determination of Arm Length Price (ALP) by the TPO. The Tribunal ruled in favor of the assessee in both issues, highlighting the importance of proper consideration of objections and adherence to judicial precedents in such matters.