TMI BlogIncome-tax (Tenth Amendment) rules, 2012 - Insertion of Rules 10F, 10G, 10H, 10-I, 10-J, 10K, 10L, 10M, 10N, 10-O, 10P, 10Q, 10R, 10S, 10T & 44GAX X X X Extracts X X X X X X X X Extracts X X X X ..... of this rule and rules 10G to 10-I,- ( a ) 'agreement' means an advance pricing agreement entered into between the Board and the applicant, with the approval of the Central Government, as referred to in sub-section (1) of section 92CC of the Act; ( b ) application means an application for advance pricing agreement made under rule 10T; ( c ) bilateral agreement means an agreement between the Board and the applicant, subsequent to, and based on, any agreement referred to in rule 44GA between the competent authority in India with the competent authority in the other country regarding the most appropriate transfer pricing method or the arms' length price; ( d ) competent authority in India means an officer authorised by the Central Government for the purpose of discharging the functions as such for matters in respect of any agreement entered into under section 90 or 90A of the Act; ( e ) covered transaction means the international transaction or transactions for which agreement has been entered into; ( f ) critical assumptions means the factors and assumptions that are so critical and significant that neither party entering into an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ( ii ) identify transfer pricing issues; ( iii ) determine the suitability of international transaction for the agreement; ( iv ) discuss broad terms of the agreement. (6) The pre-filing consultation shall- ( i ) not bind the Board or the person to enter into an agreement or initiate the agreement process; ( ii ) not be deemed to mean that the person has applied for entering into an agreement. 10-I. Application for advance pricing agreement . (1) Any person, who has entered into a pre-filing consultation as referred to in rule 10H may, if desires to enter into an agreement furnish an application in Form No. 3 CED along with the requisite fee. (2) The application shall be furnished to Director General of Income-tax (International Taxation) in case of unilateral agreement and to the competent authority in India in case of bilateral or multilateral agreement. (3) Application in Form No. 3 CED may be filed by the person referred to in rule 10G at any time- ( i ) before the first day of the previous year relevant to the first assessment year for which the application is made, in respect of transactions which are of a continuing nature from dealings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case may be, on being satisfied, may pass an order providing that application shall not be allowed to be proceeded with if the application is defective and defect is not removed by applicant in accordance with sub-rule (3). (5) No order under sub-rule (4) shall be passed without providing an opportunity of being heard to the applicant and if an application is not allowed to be proceeded with, the fee paid by the applicant shall be refunded. 10L. Procedure . (1) If the application referred to in rule 10K has been allowed to be proceeded with, the team or the competent authority in India or his representative shall process the same in consultation and discussion with the applicant in accordance with provisions of this rule. (2) For the purpose of sub-rule (1), it shall be competent for the team or the competent authority in India or its representative to- ( i ) hold meetings with the applicant on such time and date as it deem fit; ( ii ) call for additional document or information or material from the applicant; ( iii ) visit the applicant's business premises; or ( iv ) make such inquiries as it deems fit in the circumstances of the case. (3) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to meet conditions subject to which the agreement has been entered into. (3) The binding effect of agreement shall cease only if any party has given due notice of the concerned other party or parties. (4) In case there is a change in any of the critical assumptions or failure to meet the conditions subject to which the agreement has been entered into, the agreement can be revised or cancelled, as the case may be. (5) The assessee which has entered into an agreement shall give a notice in writing of such change in any of the critical assumptions or failure to meet conditions to the Director General of Income-tax (International Taxation) as soon as it is practicable to do so. (6) The Board shall give a notice in writing of such change in critical assumptions or failure to meet conditions to the assessee, as soon as it comes to the knowledge of the Board. (7) The revision or the cancellation of the agreement shall be in accordance with rules 10Q and 10R respectively. 10N. Amendments to Application. (1) An applicant may request in writing for an amendment to an application at any stage, before the finalisation of the terms of the agreement. (2) The Director Ge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dings as regards compliance by the assessee with terms of the agreement. (4) The Director General of Income-tax (International Taxation) shall forward the report to the Board in a case where there is finding of failure on part of assessee to comply with terms of agreement and cancellation of the agreement is required. (5) The compliance audit report shall be furnished by the Transfer Pricing Officer within six months from the end of the month in which the Annual Compliance Report referred to in rule 10-O is received by the Transfer Pricing Officer. (6) The regular audit of the covered transactions shall not be undertaken by the Transfer Pricing Officer if an agreement has been entered into under rule 10L except where the agreement has been cancelled under rule 10R. 10Q. Revision of an agreement (1) An agreement, subsequent to it having been entered into, may be revised by the Board, if.- ( a ) there is a change in critical assumptions or failure to meet a condition subject to which the agreement has been entered into; ( b ) there is a change in law that modifies any matter covered by the agreement but is not of the nature which renders the agreement to be n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of cancellation of the agreement, where applicable. (6) The order under the Act, declaring the agreement as void ab initio , on account of fraud or misrepresentation of facts, shall be in writing and shall provide reason for such declaration and for non-acceptance of assessee's submission, if any. (7) The order of cancellation shall be intimated to the Assessing Officer and the Transfer Pricing Officer, having jurisdiction over the assessee. 10S. Renewing an agreement. Request for renewal of an agreement may be made as a new application for agreement, using the same procedure as outlined in these rules except pre-filing consultation as referred to in rule 10H. 10T. Miscellaneous. (1) Mere filing of a application for an agreement under these rules shall not prevent the operation of Chapter X of the Act for determination of arms' length price under that Chapter till the agreement is entered into. (2) The negotiation between the competent authority in India and the competent authority in the other country or countries, in case of bilateral or multilateral agreement, shall be carried out in accordance with the provisions of the tax treaty between Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eptable may at its option continue with process of entering into an advance pricing agreement without benefit of mutual agreement process or withdraw application in accordance with rule 10J . ( c ) In Appendix-II of the principal rules, after Form No. 3 CEB, the following Forms shall be inserted, namely: - Form No. 3CEC [See sub-rule (2) of rule 10 H] Application for a pre-filing meeting To, The Director General of Income-tax (International Taxation) New Delhi. Sir/Madam, I propose to apply for an Advance Pricing Agreement. In this regard I give below the necessary particulars for a pre-filing meeting: 1. Particulars of the applicant: a. Full name of the applicant: b. Permanent account number: c. Address of the applicant: d. Location(s) of the business enterprises in India: e. Details of applicant authorized representative: f. Address for communication: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16. History of transfer pricing audits, assessments and present status of appeals: 17. Names and designation of the representatives who would be appearing before the authorities for pre-filing discussions: Any other relevant information: I declare that to the best of my knowledge and belief, the information furnished in the application is correct and truly stated. Place: Yours faithfully, Date: Applicant Notes : 1. The application must be filed in triplicate. 2. If the space provided for answering any item in the application is found insufficient, separate enclosures may be used for the purpose. These enclosures should be signed by the person authorised to sign the application. 3. In case the pre-filing meeting is requested on an anonymous basis, no names of the applicant or associated enterprises are to be given. 4. With regard to details of all the international transactions proposed to be covered in the APA, please furnish agreements with associated enterprises, if any, relating to the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lateral, Bilateral or Multilateral APA: Unilateral/ Bilateral/ Multilateral b. If you are applying for a Bilateral or Multilateral APA, have the Associated Enterprises applied for APA with the Competent Authority in the country of its residence? Yes/ No c. If yes, enclose evidence of furnishing such application with the other Competent Authority: d. If no, by what date the application is proposed to be furnished to the other Competent Authority: e. If the application is for Unilateral APA and it involves international transactions with an entity located in a jurisdiction with which India has an agreement under section 90 or 90A of the Act for avoidance of double taxation, kindly provide explanation for why the request is not for bilateral or multilateral APA. 6. Particulars of Fee paid by the applicant: Amount in Rs. Challan No. : Dated: 7. Period of APA proposed along with the date from which APA is sought to be applicable: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Form 3CEB: c. Operating data (gross and net) segmented by product line, division, unit, and geographic region for the prior five years, or the most recent business cycle as appropriate: 20. Relevant marketing and financial studies: (Please enclose copies) 21. Copies of all relevant inter-company agreements (pricing, cost sharing, licensing, distributorship etc.): (Please enclose copies) III. Industry and market analyses 22. Detailed industry analysis: a. Comprehensive description of industry as well as generally accepted industrial and commercial practices: b. Identification and general profile of competitors, including respective market shares: c. Industry and general business statistics, financial ratios, and analyses/studies: d. Critical success factors: 23. Detailed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 33. Application of the proposed TPMs to the covered transactions for the three prior years' operations or the most recent business cycle, and discuss results: 34. Application of the proposed TPMs to the time period applicant wants the APA to cover and discuss results: 35. Discussion and quantification of the variance, if any, from the methodology applied in section IV: I declare that to the best of my knowledge and belief, the information furnished in the application is correct and truly stated. Place: Yours faithfully, Date: Applicant Notes : 1. Bilateral or multilateral APA application shall be filed with the Competent Authority i.e. the Joint Secretary FT TR-I, New Delhi in triplicate. 2. Unilateral APA application shall be filed with the Director General of Income-tax (International Taxation), New Delhi in triplicate. 3. If the space provided for answering any item in the application is found insufficient, separate enclosures ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. Email Id and the contact numbers of the person for correspondence: 2. Type of APA entered into: a. Have you entered into a unilateral APA or Bilateral APA or Multilateral APA? Unilateral/Bilateral/Multilateral b. If you have entered into a Bilateral APA or Multilateral APA, provide the names of the country(ies) with which the APA has been entered into. 3. Name(s) of the associated enterprise(s) with which international transactions have been undertaken during the year. 4. Details of Covered Transactions: a. Nature of Covered Transaction: b. Amount of Covered Transaction: c. Country(ies) involved: d. Agreed transfer pricing method: e. Agreed profit level indicator: f. Actual result achieved: g. Adjustment required: h. How the adjustment if any is reflected in the income-tax return: 5. Are there any changes ..... X X X X Extracts X X X X X X X X Extracts X X X X
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