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TMI Blog2025 (5) TMI 1638X X X X Extracts X X X X X X X X Extracts X X X X ..... e Comparable Uncontrolled Price (CUP) method used by the Transfer Pricing Officer with comparable transaction of Colour Ltd, the Associated Enterprise of the assessee with Avecia Ltd. (ii) the Ld.CIT(A) erred in law and on facts of the case, by holding that the downward adjustment of Rs. 54,03,30,087/- being the difference of the ALP determined by the Assessee at Rs. 6,94,39,913/- and Rs. 60,67,70,000/- by the Transfer Pricing Officer should not be added to the total income of the assessee contrary to the stand taken by the Transfer Pricing Officer and the Assessing Officer. (iii) the Ld.CIT(A) erred in law and facts of the case, in scaling down the upward adjustment of Rs. 32,83,64,753/- made by the Transfer Pricing Officer to Rs. 17,88,08,043/- on sale of finished goods at Rs. 66,36,17.861/- by holding that only ALP of the Avecia Products should be modified while that of non-Avecia should not be done, ignoring the fact the assessee is earning huge * margins in the sale of non-avecia products also. 2. The appellant craves to add to, amend or alter the above grounds as may be deemed necessary." Ground Number 1: Ld. CIT(Appeals) erred in facts and in law in determining ALP at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on their usefulness and the expected benefits they would bring to the business. Upon acquiring these intangibles, the Assessee significantly upgraded its manufacturing capabilities, shifting from a custom manufacturer to a full-fledged manufacturer. This change brought considerable risks, including technological, capacity, and market risks. As a result of these upgrades, the Assessee was able to directly manage the distribution of the products from April 1, 2007, which allowed them to capture a larger share of the margin on sales. This resulted in a substantial increase in the prices realized for the products, which exceeded the estimated benefits from the valuation report. Over the next few years (2007-2010), the price per kilogram of the Avecia products increased significantly, surpassing the projected estimates. In support of these claims, the Assessee submitted sales data and audited financial statements showing the actual price realizations from 2006 to 2010. The Assessee submitted that in just three years, it had already realized more than US $15.5 million, compared to the initial payment of US $14.05 million for the intangibles, which was a conservative estimate. The actua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d significant issues with the valuation, notably the report's reliance on unaudited financial data provided by the management of Colour Ltd. without independent verification or audits. The TPO highlighted that the valuation's royalty rates for technical know-how (10%) and trademarks (5%) lacked any benchmarked comparables and were solely based on Colour Ltd.'s management's perception, which the TPO found unreliable. Consequently, the TPO rejected the valuation report. Ld. CIT(Appeals) noted that the TPO had applied the CUP method, on the basis of a 2002 business transaction between Colour Ltd. and Avecia Ltd. to estimate the ALP. The assessee objected to this CUP, submitting that the 2002 transaction was significantly different from the 2007 acquisition of intangibles by the assessee, due to differences in contractual obligations, including a prior option agreement and manufacturing agreement. The assessee submitted that adjusting the CUP for margins earned during the option period would lead to a more accurate comparison, but this was contested by the TPO due to the difficulty in isolating relevant margins and the lack of verifiable financial data. The Commissioner (Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1, based on the terms of the Goodwill Purchase Agreement, which defined goodwill as including factors such as market positioning and customer information. The Commissioner (Appeals) determined the final Arm's Length Price of the intangibles as follows: * Know-how: US $ 1.54 million (Rs. 6,68,36,000) * Trademarks: US $ 2.58 million (Rs. 11,19,72,000) * Goodwill: US $ 1 (Rs. 43.4) 8. The total value for the intangibles was determined by Ld. CIT(Appeals) to be Rs. 17,88,08,043/-. Ld. CIT(Appeals) also held that depreciation on technical know-how and trademarks should be allowed in future years based on these adjusted values, in accordance with the provisions of Section 32 of the Income Tax Act, while goodwill depreciation was not applicable, as the assessee had not claimed depreciation on goodwill. 9. On going through the orders passed by the Assessing Officer and Ld. CIT(Appeals) and taking into consideration arguments of both the parties, we are of the considered view that there is no infirmity in the order of Ld. CIT(Appeals) so as to call for any interference. In our view, Ld. CIT(Appeals) correctly noted that the assessee, citing the non-availability of other comparables, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT(Appeals) erred in holding that the downward adjustment of Rs. 54,03,30,087/- being the difference of the ALP determined by the assessee at Rs. 6,94,39,913/- and Rs. 60,67,70,000/- by the TPO should not be added to the total income of the assessee 11. The brief facts relating to this ground are that the assessee filed appeal against the addition of Rs. 54,03,30,087/- made by the AO which was based on the difference between the Arm's Length Price (ALP) determined by the assessee and the ALP determined by the TPO. The TPO held that the assessee had transferred a cash asset of Rs. 54,03,30,087/- to its associated enterprise (AE) without consideration and that the net present value (NPV) of this asset was Rs. 54,04,40,087/-. As a result, the TPO recommended that this amount should be added to the assessee's income as an upward adjustment for the international transaction. 12. The assessee filed appeal before Ld. CIT(Appeals), and objected to the addition on the ground that it represented a duplicate addition for the same adjustment. The assessee pointed out that the TPO had already instructed the AO to reduce the value of intangibles by Rs. 54,03,30,087/-, and to allow de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Net Margin Method (TNMM), using operating margin of cost as the Profit Level Indicator (PLI) to benchmark its transaction. The assessee selected eight comparable companies for its analysis, considering companies from the chemical industry (paints and dyes sub-industry) with a sales turnover greater than Rs. 1 crore and a manufacturing-to-sales ratio greater than 80%. The average operating margin of these comparables was 4.88%, while the assessee's operating margin from the AE exports was 15.89%. The TPO, however, raised several concerns. Firstly, the TPO noted that the assessee had failed to submit financial statements of its AE, Colour Ltd., despite repeated requests. As a result, the TPO was unable to verify the functions, assets, and risks (FAR) of Colour Ltd., and hence, the FAR analysis presented by the assessee was not acceptable. The TPO pointed out that Colour Ltd. acted primarily as a routing entity without bearing marketing risks, distribution costs, or any significant business functions, except providing technical know-how for Avecia products. Therefore, the TPO held that the assessee was the more complex entity, responsible for manufacturing, R&D, procurement, and other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d should be restricted to Rs. 17,76,95,458/-, based on a more appropriate royalty rate of 6.5% for the Avecia products. Accordingly, Ld. CIT(Appeals) upheld the upward adjustment to the assessee's income but reduced the amount from the TPO's proposed figure of Rs. 32,83,64,753/- to Rs. 17,76,95,458/- appeal of the assessee was partly allowed. 17. The Department is in appeal before us against the order passed by Ld. CIT(Appeals). In our view, while passing the order, Ld. CIT(Appeals) has taken a well-reasoned approach and there is no reason to interfere with the same. The Commissioner (Appeals) upheld the Transfer Pricing Officer's findings that the assessee's submission of contracts alone could not substantiate the functions performed, risks assumed, and assets deployed by the associated enterprises (AEs), especially without the financial statements of Colour Ltd. The financial statements were crucial for verifying whether Colour Ltd. had actually performed the functions it claimed. The TPO also highlighted that Colour Ltd. did not provide technical know-how for non-Avecia products, and that it did not assume any marketing or inventory risks, which the assessee did not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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