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Income Tax Appellate Tribunal, PUNE BENCH “C”, PUNE
Before: SHRI R.S. SYAL & SHRI PARTHA SARATHI CHAUDHURY
This appeal by the assessee is directed against the final assessment order dated 26-10-2017 passed by the Assessing Officer (AO) u/s.143(3) r.w.s.144C(13) of the Income-tax Act, 1961 (hereinafter called ‘the Act’) in relation to the assessment year 2013-14.
The assessee has filed modified as well as additional grounds, which have been espoused for consideration and decision.
Briefly stated, the facts of the case are that the assessee is a part of the Koso group, which has Control valve manufacturing locations in Japan, UK, USA, Korea, China and India. The assessee was incorporated in the year 2004 and during the year under consideration it was engaged in the manufacture and supply of control valves and actuators. Return was filed declaring total income of Rs.19.36 crore and odd. Certain international transactions were reported in Form No.3CEB. The AO made a reference to the Transfer Pricing Officer (TPO) for determining the Arm’s Length price (ALP) of the international transactions.
Instantly, we are concerned with a combined international transaction of sale of finished goods to various Associated Enterprises (AEs) amounting to Rs.34.29 crore and purchase of raw materials from various AEs amounting to Rs.10.09 crore. The assessee applied the Transactional Net Margin Method (TNMM) for demonstrating that these two transactions in an aggregate manner were at ALP. The assessee worked out it Profit level indicator (PLI) of OP/OC at 9.80% for this transaction as against the average PLI of 6 comparables at 8.96%. The TPO dropped three companies from the assessee’s list and proceeded with the final set of (14.13%), Continental Valve Ltd. (5.87%) and Oswal Industries Ltd. (18%). The TPO computed unadjusted average PLI of the above three companies at 12.66%. During the course of the transfer pricing proceedings, the assessee submitted the working capital adjusted margins of comparables at 16.18%, 8.34% and 18.10% respectively. The TPO accepted such adjusted working capital margins of the three comparables at an average of 14.20% as against the assessee’s margin of 9.80%. This is how, the TPO recommended transfer pricing adjustment of Rs.6,05,55,749/-, which was incorporated by the AO in the draft order. The assessee challenged certain aspects of the draft order before the Dispute Resolution Panel (DRP), which for the time being are not relevant for our purpose. The DRP directed the AO/TPO to treat net gain/loss on foreign currency fluctuations as non-operating income/expenses and recompute the PLI of the assessee and the comparables and thereafter consequential transfer pricing adjustment accordingly. While giving effect to the direction given by the DRP, the TPO recomputed the profit margin of the assessee at 11.76% by taking net gain/loss on foreign currency fluctuation as non-operating. Revised adjusted average PLI of the above referred three companies was also computed accordingly at 15.12% after giving effect to the working capital adjustment. This led to the transfer pricing addition of Rs.4,66,04,340/-, against which the assessee has come up in appeal before the Tribunal.
We have heard the rival submissions and gone through the relevant material on record. There is no dispute on the aggregation of the above referred two transactions of purchase of raw materials and sale of finished goods and also the application of the TNMM as the most appropriate method along with the PLI of OP/OC. The ld. AR focused primarily on the calculation of the working capital adjustment. At this juncture it would be relevant to note that the assessee submitted, during the course of original proceedings before the TPO, the adjusted profit margins of the comparables (after giving effect to the working capital adjustment) at the percentages indicated above. This was done by applying State Bank of India Base rate of 9.86%, whose detailed working has been given at page 234 of the paper book. Such calculation of the margins was accepted by the TPO, who computed the transfer pricing adjustment by considering such working capital adjusted margins of the three comparables. The assessee did not assail such working capital adjustment before the DRP, which was, in fact, accepted by the TPO himself. Ex consequenti, the DRP too did not interfere with any aspect of the calculation of working capital adjustment except for holding that the net foreign exchange gain/loss should be taken as an item of non-operating, which aspect has not been challenged by the assessee before the Tribunal. However, when the TPO gave effect to the directions given by the DRP, he adopted rate of interest at 14.61% for the purpose of calculating the working capital adjustment qua the three comparables. Now, whereas the case of the assessee before the Tribunal is that the AO/TPO, while giving effect to the directions of the DRP, could not have altered the earlier accepted rate of interest at 9.86%, the ld. DR contended that the rate of interest applied by the assessee during the course of transfer pricing proceedings was wrongly taken, which was rightly corrected in the order giving effect to the direction of the DRP. The moot question, which ergo arises is whether the TPO, having accepted the rate of interest for the purposes of calculating working capital adjustment at 9.86% at the time of passing order u/s 92CA(3) of the Act, was right in changing such rate to 14.61% for whatever reason, while giving effect to the DRP’s direction when there was no such direction in this regard?
Section 144C of the Act has marginal note “Reference to Dispute Resolution Panel”. Sub-section (1) of section 144C provides that: “The Assessing Officer shall, notwithstanding anything to the contrary contained in this Act, in the first instance, forward a draft of the proposed order of assessment (hereafter in this section referred to as the draft order) to the eligible assessee if he proposes to make, on or after the 1st day of October, 2009, any variation in the income or loss returned which is prejudicial to the interest of such assessee.’ Sub-section (2) of section 144C states that the assessee shall either file his acceptance to the AO on the variations proposed in the draft order or file his objections, if any, with the DRP. Sub-section (3) states that : `The Assessing Officer shall complete the assessment on the basis of the draft order, if— (a) the assessee intimates to the Assessing Officer the acceptance of the variation; or (b) no objections are received within the period specified in sub-section (2). A conjoint reading of first three sub- sections of section 144C deciphers that the draft order attains finality, inter alia, on the assessee accepting the variation and the assessment has to be necessarily completed on the basis of the draft order. It means that unless the assessee raises objection before the DRP, the AO in the assessment order has to obey and follow the income computation in his draft order. He cannot alter any aspect of the draft order in passing the assessment order u/s 144C(3). Now, we come to the second scenario of the assessee aggrieved by the draft order. If the assessee is not satisfied with the draft order, sub- section (5) comes into play, which stipulates that the DRP shall, in a case where any objection is received under sub-section (2), issue such necessary directions for the guidance of the AO to enable him to complete the assessment. Sub-section (13) provides that : `Upon receipt of the directions issued under sub-section (5), the Assessing Officer shall, in conformity with the directions, complete ..….. the assessment without providing any further opportunity of being heard to the assessee …’. It means what is required to be done by the AO at the stage of completing the assessment under sub-section (13) is to first pick up the income determination under the draft order; then ascertain the directions given by the DRP, which under sub-section (8) can be for confirming, reducing or enhancing the variations; and thereafter give effect to the directions given by the DRP by modifying the income computation as per the draft strictly in accordance with the direction of the DRP. This manifests that once the matter travels to the DRP, the AO/TPO become functus officio except to the extent of giving effect to the directions of the DRP vis-à-vis the income computation under the draft order. It is up to the stage of the passing of the draft order that the AO/TPO can examine any issue from any angle. But after the passing of the draft order, there cannot be any suo motu addition to or subtraction from the draft order, whether the order is passed under sub-section (3) or sub-section (13) except in the latter sub-section, to the limited extent of giving effect to the direction given by the DRP. If the contrary is permitted, the assessee would lose the forum of the DRP for redressal of his grievance, which is statutorily impermissible.
Reverting to the factual panorama of the instant case, it is observed that the TPO vide his order giving effect to the directions of the DRP changed the rate of interest for the purpose of calculating working capital adjustment from the originally accepted 9.86% to 14.61%. It is seen that the AO passed the draft order on 28.11.2016 by considering the adjusted margins of the comparables with the working capital adjustment on the basis of rate of interest at 9.86%. The assessee assailed the draft order before the DRP on certain issues other than the rate of interest for computing the working capital adjustment. The DRP gave certain directions but did not direct to alter such interest rate either suo motu or at the instance of the assessee. Once the position was so, the rate of interest at 9.86% attained finality as the draft order was passed with such a rate of interest. The AO/TPO, while giving effect to the directions of the DRP, were bereft of any power to change any aspect of the draft order save and except the direction of the DRP including the rate of interest to 14.61%. Having themselves accepted such a rate of interest up to the stage of passing the draft order, the AO/TPO ceased to exercise any jurisdiction to re-examine the earlier view and enhance it at the time of giving effect to the direction of the DRP, when the same was not a part of the direction.
Under such circumstances, we direct to consider the rate of interest at 9.86% for calculating the working capital adjustment for benchmarking the international transaction in question, as was originally accepted.
The assessee has raised an additional ground, which reads as under :
“The appellant requests for an adjustment to account for differences in the depreciation cost of the Appellant vis-à-vis comparable companies selected by the Appellant.”
Since this ground involves a pure question of law and does not require any fresh examination of facts, we admit the same in the hue of the judgment of Hon’ble Supreme Court in National Thermal Power Company Ltd. Vs. CIT (1998) 229 ITR 383 (SC).
Having heard both the sides and gone through the relevant material on record, it is observed from the additional ground that the assessee wants adjustment in the profit margin of the comparables on the basis of difference in the rates of depreciation as charged by the assessee vis-à-vis the comparables on the same asset(s). In other words, the dispute is not about granting any adjustment on account of difference in the quantum of depreciation as such or percentage of such depreciation to a common base but only towards difference in the rates of depreciation on similar asset(s). We agree with this proposition as has been approved in several decisions including a recent decision of the Pune Benches of the Tribunal dated 13th January, 2020 in M/s. Vishay Components India Private Limited vs. ACIT (ITA No.585/PUN/2015). It is, therefore, held that no adjustment can be allowed if there is difference just on account of the quantum of depreciation or percentage of depreciation to a certain base. An adjustment should be allowed in the computation of profit of the comparables only if there is a difference in the rate of depreciation as charged by the assessee vis-a-vis the comparables on the same asset(s).
No other ground was pressed by the ld. AR by contending that if the assessee gets relief on account of working capital adjustment and rates of depreciation, the profit rate will be within the permissible range and no transfer pricing adjustment would survive.
We, therefore, set-aside the impugned order and remit the matter to the file of AO/TPO for a fresh determination of the ALP of the international transaction in accordance with our above directions.
Needless to say, the assessee will be allowed reasonable opportunity of hearing.
In the result, the appeal is partly allowed for statistical purposes.
Order pronounced in the Open Court on 21st January, 2020.