2022 (5) TMI 1326 - AT - Income Tax

TP adjustment - Intragroup services filed by the assessee from its AE in the facts and circumstances of the instant case - determining the ALP of those transactions at Rs. Nil - HELD THAT - We find that the ld. DRP having stated that CUP is the Most Appropriate Method to be adopted in this case did not bother to bring in comparable instances to determine the ALP using CUP whereas the assessee has adopted TNMM as the Most Appropriate Method and had benchmarked the same by bringing in the comparable companies and had benchmarked the same. No error was found in the said method by either of the lower authorities. Either way when the Revenue seeks to disturb the Most Appropriate Method adopted by the assessee it is incumbent on the part of the Revenue to adopt any of the other prescribed methods in the statute i.e. Rule 10B of the Rules. Without resorting to any of the methods for the purpose of determining the ALP of international transaction the ld. TPO erred in determining the ALP of intragroup services at Rs. Nil . This issue is fully settled by the Co-ordinate Bench decision of this Tribunal in the case of Lintas India Pvt Ltd. vs. DCIT 2019 (8) TMI 922 - ITAT MUMBAI Thus we hold that the Revenue is not justified in determining the ALP of intragroup services at Rs.Nil. Accordingly the transfer pricing adjustment made thereon are hereby directed to be deleted. Accordingly the ground Nos. 1 2 raised by the assessee are allowed.

Summary

Issues Involved:
1. Transfer Pricing Adjustment for Intragroup Services
2. Professional Fees - Regional Management
3. Professional Fees - Global Support Services and Corporate Centre Services
4. Software Expenses Allocation
5. Professional Fees - Data Processing, Technical Assistance, and Related Services
6. Initiation of Penalty Proceedings

Issue-wise Detailed Analysis:

1. Transfer Pricing Adjustment for Intragroup Services:
The primary issue is whether the Transfer Pricing Officer (TPO) was justified in making a transfer pricing adjustment of Rs. 4,86,97,220/- for intragroup services received by the assessee from its Associated Enterprises (AEs). The TPO determined the arm’s length price (ALP) of these services at Rs. 'Nil' without following any prescribed methods under Rule 10B of the Income Tax Rules. This action was upheld by the Dispute Resolution Panel (DRP), which incorrectly claimed that the assessee did not carry out any benchmarking analysis. The Tribunal found that the assessee had indeed conducted a benchmarking analysis using the Transactional Net Margin Method (TNMM) and provided detailed descriptions and cost allocations for the services received. The Tribunal concluded that the TPO was not justified in determining the ALP at Rs. 'Nil' and directed the deletion of the transfer pricing adjustment.

2. Professional Fees - Regional Management:
The assessee claimed to have received management services from Newedge HK and paid Rs. 3,06,00,651/- on a cost-plus 5% basis. The TPO rejected the assessee’s submissions, stating that the assessee could not conclusively prove the benefits received and the correctness of cost allocation. The Tribunal found that the assessee had provided detailed descriptions, cost allocation workings, and sample invoices, demonstrating that the services were necessary for its operations. The Tribunal held that the TPO was not justified in determining the ALP at Rs. 'Nil'.

3. Professional Fees - Global Support Services and Corporate Centre Services:
The assessee leveraged services from Newedge Paris, which included IT, administrative, technical, financial, and commercial services. The costs were allocated based on appropriate allocation keys such as Net Banking Income (NBI) and headcount. The TPO rejected the assessee’s submissions, stating that the benefits received and cost allocations were not conclusively proven. The Tribunal found that the assessee had provided detailed descriptions, cost allocation workings, and sample invoices, and that these services were essential for the assessee’s operations. The Tribunal held that the TPO was not justified in determining the ALP at Rs. 'Nil'.

4. Software Expenses Allocation:
The assessee claimed software costs allocated by Newedge HK and Newedge Facilities Management Inc. The TPO rejected the submissions, stating that the benefits received and cost allocations were not conclusively proven. The Tribunal found that the assessee had provided detailed descriptions, cost allocation workings, and sample invoices, demonstrating that the software services were necessary for its operations. The Tribunal held that the TPO was not justified in determining the ALP at Rs. 'Nil'.

5. Professional Fees - Data Processing, Technical Assistance, and Related Services:
The assessee received data processing and technical assistance services from Newedge Facilities Management Inc. The TPO rejected the submissions, stating that the benefits received and cost allocations were not conclusively proven. The Tribunal found that the assessee had provided detailed descriptions, cost allocation workings, and sample invoices, demonstrating that these services were necessary for its operations. The Tribunal held that the TPO was not justified in determining the ALP at Rs. 'Nil'.

6. Initiation of Penalty Proceedings:
The ground raised by the assessee regarding the initiation of penalty proceedings under Sections 271(1)(c), 271AA, and 271G of the Income Tax Act was dismissed as premature for adjudication at this stage.

Conclusion:
The Tribunal allowed the appeals of the assessee for all the assessment years involved, directing the deletion of the transfer pricing adjustments made by the TPO. The decision rendered for A.Y. 2011-12 applied mutatis mutandis for A.Y. 2012-13 and 2013-14. The appeals were partly allowed, and the order was pronounced in open court on 01/04/2022.