AMVIAN AUTOMOTIVE PRIVATE LIMITED,GUJARAT vs. CIT, CIRCLE 1(1)(1) / ASSESSMENT UNIT, GUJARAT

PER DR. B.R.R. KUMAR, VICE-PRESIDENT:-

This appeal is filed by the Assessee against the appellate order dated 23.10.2024 passed by the DRP/AO, relating to the Assessment Year 2021-22.

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provisions of the Act read with the Rules for the determination of the arm's length price in relation to international transaction pertaining to procurement of intra group services without giving any cogent basis and without demonstrating the inadequacy or infirmity in the analysis so conducted by the Appellant and making modifications to this analysis in a subjective and arbitrary manner. 4. The Ld. AD/ Ld. TPO/ Ld. DRP erred in making the TP adjustment on account of procurement of intra group services without appreciating the fact that such services have been rendered by the AE to the Appellant based on an inter- company agreement between AE and the Appellant. 5. The Ld. AO/ LỠ. TPO/Ld. DRP erred, on facts and in law by alleging (without providing any material on record to substantiate the basis of concluding) that no concrete documentary evidence was produced by the Appellant to support its claim that it needs the specific services and has actually received and benefitted from the same, by disregarding the facts of the Appellant's case and without giving due consideration to various details (including additional evidence) provided by the Appellant from time to time. 6. The Ld. AO/Ld. TPO/Ld. DRP grossly erred in contending that no independent person would make payments towards procurement of Intra Group Services i.e., Sales support and representation Services thereby questioning the commercial rationale and business expediency of the Appellant in availing the services. 7 The Ld. AO/ Ld. TPO/ Ld. DRP erred in rejecting the Transactional Net Margin Method ('TNMM'), wherein closely linked transactions were benchmarked together and instead considering the international transaction pertaining to procurement of intra group services as a separate class of transaction and segregating it for the benchmarking purpose. 8. The Ld. AO/Ld. TPO/Ld. DRP has erred in law by rejecting the Transactional Net Margin Method ('TNMM') analysis adopted by the Appellant to benchmark its international transaction pertaining to procurement of intra-group services and applying Any Other Method ('AOM') Method in contravention of the provisions of Rule 10A of the income Tax Rules, 1962. 9. The Ld. AO/Ld. TPO/Ld. DRP grossly erred in determining the arm's length price for the impugned transaction of availing of intra-group services to be "NIL" while applying Any Other Method ("AOM") and erred by hot identifying any comparable method transaction and not undertaking any independent analysis of its own to determine the ALP and thus arbitrarily concluded that the ALP is NIL, In the absence of which, the application of AOM method is invalid and void.

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rather than independently benchmarking the outstanding receivables of the Appellant by considering an interest rate (1.0. DIGOB plus 400 hps) for comparability which does not amount to the application of Comparable Uncontrolled Price ("CUP") Method or any of the "method" defined in the Act. 19. Without prejudice, the LU. AO/Ld. TPO/Ld. DRP erred on facts and in law in hot following any of the prescribed methods while making the transfer pricing adjustment on account of interest on outstanding receivables. 20. Without prejudice to above, the Ld. AO/Ld. TPO/Ld. DRP erred on facts and in law in not appreciating that even if the interest on outstanding receivables is to be considered as part of sale price of goods, it stands benchmarked along with such transaction of sale of goods. 21. Without prejudice, the Ld. AO/Ld. TPO/Ld. DRP erred on the facts and in law by not understanding the business model/contractual terms of the Appellant and accordingly erred in not appreciating that even if the interest on outstanding receivables of the AEs is to be considered, then the credit period of 95 days as allowed by the Appellant to its AE is to be considered while computation of interest on outstanding receivables. 22. Without prejudice, the Ld. AO/Ld. TPO/Ld. DRP erred on facts and in law in incorrect application of Transfer Pricing Method, as defined under the Act, by arbitrarily considering credit period of 60 days while computing interest on delay in realization of outstanding balances from AEs. 23. That the Ld. AO erred in Initiating penalty proceedings alleging underreporting of income under Section 270A of the Act. 24. Without prejudice to the above, the appellant respectfully submits that it has duly complied with the requirement to pre-deposit 20% of the disputed demand, demonstrating bona fide intent and willingness to cooperate with the appellate process. Recognizing the Appellant's compliance through the pre-deposit of 20% of the disputed demand, the appellant humbly prays for a stay order on the recovery of the remaining demand amount and keep the balance in abeyance until the final disposal of the appeal. This is to mitigate undue hardship and ensure fair adjudication of the matter.

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Associated Enterprises. The assessee filed its return of income declaring total income of Rs.30,92,39,070/-. Since the assessee had entered into international transactions with its AEs, the matter was referred to the Transfer Pricing Officer (TPO) for determination of the Arm's Length Price (ALP) u/s 92CA of the Act. During the transfer pricing proceedings, the TPO proposed two adjustments relevant for the present appeal. Firstly, the TPO determined the ALP of payment made by the assessee towards sales commission payment to its AE at NIL and proposed an adjustment of Rs.10,84,14,434/-. Secondly, the TPO treated delayed realization of receivables from AEs as a separate international transaction and proposed adjustment on account of notional interest thereon. The draft assessment order incorporating the transfer pricing adjustments was passed by the Assessing Officer. Aggrieved, the assessee filed objections before the DRP. The DRP substantially upheld the adjustment relating to sales commission and partly modified the adjustment relating to outstanding receivables by directing adoption of a credit period of 60 days instead of 30 days considered by the TPO. Pursuant to the DRP's directions, the Assessing Officer passed the impugned final assessment order determining the total income at Rs.42,19,50,538/-.

Ground Nos. 2 to 11

Transfer Pricing Adjustment of Rs.10,84,14,434/- towards Sales Commission paid to AE

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of commission at the rate of 7.5% of sales generated through the efforts of the AE. The assessee benchmarked the aforesaid international transaction by aggregating the same with its other closely linked international transactions under the Transactional Net Margin Method ("TNMM") and claimed that the transaction was at arm's length. The TPO, however, rejected the benchmarking analysis adopted by the assessee. According to the TPO, the assessee had failed to establish the necessity of services, actual rendition of services and benefits derived therefrom. The TPO further held that no independent party would make such payment under similar circumstances. Accordingly, the TPO segregated the transaction, applied "Any Other Method" as the Most Appropriate Method and determined the ALP of the transaction at NIL, resulting in adjustment of Rs.10,84,14,434/-.

5.1 The Ld. DRP confirmed the action of the TPO vide order dated 27.09.2024. The detailed findings recorded by the Ld. DRP on this issue are as follows:-

“4.3 TPOs finding: “6. …..TPO's Comments on the issue of Intro Group Services: 6.1 The assessee's submission is discussed below in 4 sections nature of services, evidence of requisition, evidence of rendition and cost. 6.2 Nature of Services The assessee has submitted that it has availed the sales support and representation services (amounting to Rs. 10,84,14,434) from the AE. The assessee stated that since 99.95% of total sales are export sales, the assessee needs this service from abroad. The assessee pays 7.5% of sales of products generated by the AE as commission.

6.4 Evidence of Requisition The assessee was asked to provide evidence that these services were requested by it. The assessee referred to Annexure-2A and Annexure-28 of the submission dated 23.10.2023 as evidence of requisition. However, Annexure-2A is only a description of the services and is not evidence of

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requisition. Annexure-28 provides a list of sample Invoices that in no way indicate whether the services have been requisitioned by the assessee. It is inexplicable how the services would be provided without the assessee specifying the nature of services required. It is also inexplicable that services are automatically received without any request. If this is true, It means that the services in this case are being rendered by AE at its own behest as a related party, without any request by the assessee, which obviates the need for any compensation. 6.4 Evidence of Rendition The assessee was asked to provide evidence that these services were rendered by AE. The assessee referred to Annexure-2A and Annexure-28 of the submission dated 23.10.2023 as evidence of rendition. However, Annexure-2A is only a description of the services and is not evidence of rendition of services. Annexure-28 provides a list of sample Invoices that in no way indicate whether the services have been rendered by the ΑΕ The sample email chain provided pertains to April 2022, which is not relevant to the FY 2020-21 under consideration. It is pertinent to note that the Transfer Pricing rules under the Act lay emphasis on contemporaneous data. The email produced by the assessee is not contemporaneous. An email from April 2022 cannot determine if service was received in FY 2020-21. Hence, it is not acceptable as evidence of rendition of services. Further, no basis was provided for rendition like the type of employees involved in providing the services, the duration for which these services were taken, the persons responsible for transmitting these services and the actual evidence that these services were taken by the assessee. This raises questions of whether services were actually provided to the assessee. In this regard, reliance is placed on the judgment of Goodyear South Asia Tyres (P.) Ltd. vs. ACIT [2021] 123 taxmann.com 259 (Pune - Trib.) dt. 22 Oct., 2020 in which the Hon'ble ITAT has gone into the details of Intra group services and its allowability. The relevant portion of the judgment is being reproduced as under: "11. Section 92(1) of the Act provides that: "Any income arising from an international transaction shall be computed having regard to the arm's length price." Computation of ALP has been dealt with in section 920 which provides that: "The arm's length price in relation to an international transaction or... shall be determined by one of the following

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methods, being the most appropriate method... The mechanism for determining the ALP under these methods has been given in Rule 108. Insofar as the intra-group services under consideration are concerned, the determination of ALP primarily requires examination of three factors as to 1. Whether the services were actually availed? 2. Whether the costs are rightly allocated to the assessee? 3. Whether the payment by the assessee is at ALP?" The assessee has failed the first test set by the Hon'ble ITAT. 6.5 Evidence of Cost The assessee has submitted that the cost of the service is calculated to be 7.5% of sales. Therefore, there is no cost allocation in this case. The cost of the service is dependent on the sales made by the assessee. This raises two questions: i. Whether the cost of the service is actually proportional to the sales made by the assessee? ii. Whether the cost of the service determined to be at 7.5% of the sales is at ALP. No data was provided about the cost incurred by the AE in providing the service. Therefore, it is difficult to ascertain the answer to the first question. To the second question, the assessee provided a Transfer Pricing Study done by the AE ("P&C Group 1, Inc. Global Transfer Pricing Policy Review") to determine the percentage of sales to be allocated as commission. In Page 10 of this report, it is mentioned that the sales commission fee was benchmarked to be "between 7.3% and 15%, with a median of 9.2%". However, no detail was provided as to how this benchmarking has been arrived at. In the absence of the search process, list of comparables and an accept-reject matrix, it is Impossible to verify the benchmarking. The Income Tax Act places the onus on the assessee to provide benchmarking of the transactions, which the assessee has miserably failed to do. Therefore, the transfer pricing study cannot be accepted.

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Therefore, the assessee has failed the second test set by the Hon'ble ITAT in Goodyear (supra). 6.6 The assessee has provided a detailed submission on the benefits received from the services and has also stated that the business decision of the assessee cannot be questioned. In this regard, it is to be noted that the undersigned has neither enquired about the benefits of the service nor has sought any evidence or explanation for the same. The only question before the TPO was whether the price paid for the services is at arm's length. In pursuance of the Hon'ble Delhi High Court order in Cushman & Wakefield (2014) 46 taxmann.com 317 (Delhi), there cannot be a question on the benefit received by the assessee. The relevant part of the decision is excerpted below "it is not for the revenue officers to question Assessee's wisdom in doing so. The Transfer Pricing Officer was not only going much beyond his powers in questioning commercial wisdom of Assessee's decision to take benefit of expertise of Dresser Rand US, but also beyond the powers of the Assessing Officer. We do not approve this approach of the revenue authorities." The undersigned is in full compliance with the above decision of the Hon'ble High Court. 6.7 After considering all the evidence, it is noted that the assessee has failed to provide the following information: i. A comprehensive break-up of various intra-group services that have been paid for ii. Any evidence of requisition or rendition of the service iii. Any evidence of basis of charge by the AE iv. Any evidence of how the AE's cost is distributed across various entities Including India In the absence of these crucial details, it is impossible to determine the benchmarking for the payments made for intra-group services. An Independent third party would not pay for services without having these details in its possession,

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6.8 The OECD TP Guidelines offer a useful perspective on benchmarking IGS. The relevant portions of the guidelines are reproduced below for the sake of clarity: QUOTE 7.3 There are two issues in the analysis of transfer pricing for intra-group services. One issue is whether intra-group services have in fact been provided. The other issue is what the intra-group charge for such services for tax purposes should be in accordance with the arm's length principle. 7.4 Under the arm's length principle, the question whether an intra-group service has been rendered when an activity is performed for one or more group members by another group member should depend on whether the activity provides a respective group member with economic or commercial value to enhance its commercial position. This can be determined by considering whether an Independent enterprise in comparable circumstances would have been willing to pay for the activity if performed for it by an Independent enterprise or would have performed the activity in-house for itself if the activity is not one for which the Independent enterprise would have been willing to pay or perform for Itself, the activity ordinarily should not be considered as an intro-group service under the arm's length principle. 7.20 To identify the amount, if any, that has actually been charged for services, a tax administration will need to identify what arrangements, if any, have actually been put in place between the associated enterprises to facilitate charges being made for the provision of services between them. in certain cases, the arrangements made for charging for intra- group services can be readily identified. These cases are where the MNE group uses a direct-charge method, i.e., where the associated enterprises are charged for specific services. In general, the direct-charge method is of great practical convenience to tax administrations because it allows the service performed and the basis for the payment to be clearly Identified. Thus, the direct- charge method facilitates the determination of whether the charge is consistent with the arm's length principle. 7.23 In such cases, MNE groups may find they have few alternatives but to use cost allocation and apportionment methods which often necessitate some degree of estimation or approximation, as a basis for calculating an arm's length charge following the principles in part (c) of this sub-section. Such method are generally referred to as indirect-charge methods and should be allowable provided sufficient regard has been given to the value of the services to recipients and the extent to which comparable services are provided between Independent enterprises. These methods of calculating charges would generally not be acceptable where specific services that form a main business activity of the enterprise are provided not only to associated enterprises but also to

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third parties. While every attempt should be made to charge fairly for the service provided, any charging has to be supported by an Identifiable and reasonably foreseeable benefit. Any indirect-charge method should be sensitive to the commercial features of the individual case (e.g., the allocation key makes sense under the circumstances), contain safeguards against manipulation and follow sound accounting principles, and be capable of producing charges or allocations of costs that are commensurate with the actual or reasonably expected benefits to the recipient of the service. 7.29 In trying to determine the arm's length price In relation to intra- group services, the matter should be considered both from the perspective of the service provider and from the perspective of the recipient of the service. In this respect, relevant considerations include the value of the service to the recipient and how much a comparable independent enterprise would be prepared to pay for that service in comparable circumstances, as well as the costs to the service provider. 7.31 The method to be used to determine arm's length transfer pricing for Intra-group services should be determined according to the guidelines in Chapters I, II and II. Often, the application of these guidelines will lead to use of the CUP or cost plus method for pricing Intra-group services. A CUP method is likely to be used where there is a comparable service provided between Independent enterprises in the recipient's market, or by the associated enterprise providing the services to an independent enterprise in comparable circumstances. For example, this might be the case where accounting, auditing, legal, or computer services are being provided. A cost plus method would likely be appropriate in the absence of a CUP where the nature of the activities involved, assets used, and risks assumed are comparable to those undertaken by independent enterprises. As Indicated in Chapter II, in applying the cost plus method, there should be a consistency between the controlled and uncontrolled transactions in the categories of cost that are Included. In exceptional cases, for example where it may be difficult to apply the CUP method or the cast-plus method, it may be helpful to take account of more than one method (see paragraph 1.69) in reaching a satisfactory determination of arm's length pricing, and transactional profit methods may have to be used as a last resort (see paragraph 2.49). (UNQUOTE) 6.9 Aggregation of Transactions The assessee has relied on benchmarking done through aggregation of transactions. However, this is not acceptable for reasons discussed below:

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i. It is important to note that the aggregation principle is used only when the transactions are so closely linked or continuous that they cannot be evaluated adequately on a separate basis. For the purpose of benchmarking of transaction of above services, it is not the case that this transaction cannot be benchmarked separately. ii. In Star India Pvt. Ltd. vs. ACIT [TS-18-ITAT2008(Mum)], it was held by Mumbai Bench of the Hon'ble ITAT thot for determining the arm's length price each of the assessee's independent activities should be segregated. iii. The Chandigarh Branch of Hon'ble ITAT in the case of Anti-Infectives India Ltd. vs. Addl. CIT [TS-241-ITAT-2014(CHANDI)-TP) accepted TPO's reliance on Star India (supra) and further relied on Mumbai Bench ruling In UCB India Pvt. Ltd. [TS-8-ITAT-2009 (Mum)-TP] and held that "the TPO is empowered to apply appropriate method for each of the international transactions and as the service fee paid by the assessee was a separate class of transactions, the same is to be analysed separately.". iv. The Hon'ble Delhi High Court held in the case of Denso India Ltd. vs. ACIT (ITA No. 443/2013 and 351/2013) rejected aggregation of import transaction under TNMM, since facts of the case demonstrated that the arrangements made in relation to the transaction, when viewed in their totality, differed from those which would have been adopted by independent enterprises behaving in a commercially rational manner. The Hon'ble High courtupheld the approach of the TPO to scrutinize and benchmark the transaction pertaining to import of components separately. v. The guiding principle for aggregation-disaggregation of transactions for benchmarking purposes was laid down by the Hon'ble Punjab & Haryana High Court in the case of Knorr-Bremse India Pvt Ltd [TS-558- HC-2015(P & H)-TP). The Hon'ble High Court held in this case as follows: "If it is established that each transaction was so inextricably linked to the other that the one could not survive without the other, it could be said that it formed a part of a transaction and that it was an International transaction." "The assessee would, however, have to prove that although each sale and each provision of service is priced separately, they were all provided under one composite agreement which constitutes an international transaction." "Merely because the purchase of each item and the acceptance of each service is a component leading to the manufacture/production of the

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final product sold or service provided by the ossessee, it does not follow that they are not independent transactions for the sale of goods or provision of services." A perusal of these observations clearly shows that the assessee has not been able to prove that the transaction of above services cannot be benchmarked separately. In view of the above discussion, it is held that the aggregation of these transactions and benchmarking of the same under TNMM is not proper and the assessee should have benchmarked the IGS by following the transaction-by-transaction approach. 6.10 In view of the above, the undersigned is constrained to determine the ALP of cost of the services by the assessee as Nil by applying "Other method" as the payment of cost for such services is not based any documentary evidence and no third independent party would pay for such services in an Independent situation. Therefore, an adjustment of Rs. 10,84,14,434/- is being proposed to the price shown by the taxpayer in its books of account on account of intra- group services….

DRP's Findings & Direction: 4.4 The matter has been considered. The sole evidence regarding rendition of services by the AE in lieu of 'commission on sales' is the Inter-Company Agreement wherein the services to be rendered by the AE are enumerated as under. “…Sales Support and Representation Services. a) Appointment. Subject to the terms and conditions hereof, Service Recipient hereby appoints Sales Representative and its designated employees, contractors or consultants as a sales representative to act, and Soles Representative hereby agrees to act, in promoting and supporting the sale (the "Services") by Service Recipient to purchasers of its Products in the Territory. Sales Representative agrees to engage in the promotion and development of sales of Products, to maintain the necessary organization in connection with such activity, Including the financing requirements and proposals for such procurements, and to keep Service Recipient advised of Products' performance and any maintenance problems in the Territory.

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4.5 In the TP documentation, it is stated that AAPL is making payment of sales commission fee to the AE for following purposes: Payment of Sales Commission Fees During the year under consideration, the Company has received certain Intra Group Services ("IGS") in the nature of Sales Support and representation services from its AE viz. P & C Group 1, Inc. ("P & C Inc."), that helps the Company in overall business development which includes business development and commercial activities including managing and building customer relationships with potential and existing customers served by the Company. Once the project is awarded, the AE manages overall relationship with the customers and AAPL undertake end to end project management activities Including negotiations, Interaction, contract finalization and relationship management with customer's local engineering and operation teams to execute the project. For the aforesaid services of Sales Support and representation services provided by the AE, the Company remunerates the AE an amount equivalent to commission rate of 7.5% of sales made by the Company during the year under consideration on the basis of inter-company agreement entered between the Company and Its AE 4.6) Thus, the commission is to be paid to the AE for managing overall relationship with the customers. Further, while enumerating the Function of conceptualization of service/scope performed by the entities in this transaction, it is stated that: AAPL Is responsible for providing the specific requirements, if any in relation to the scope of services to be performed by its AE. P&C Inc. performs the function of providing the management services on time-to-time basis or as per the requirement provided by AAPL 4.7 These details clearly bring out that AAPL would provide the details to the AE of its specific requirement that it has to perform and that the AE steps in only when such a requisition by AAPL to support it in the business activity is made. However, as clearly brought out in the findings of the TPO supra, AAPL, inspite of being given sufficient opportunity failed to furnish any satisfactory evidence of requisition of services by it. Thus, when payment of commission to the AE was to be made on the basis of contribution made by it on project specific basis, then, there is no point in awarding commission to the AE at a fixed rate of 7.5% of sales. It could so happen that in a particular OEM Project, AAPL did not need the support of the AE while in some other Project, it needed lot of support and cushioning from the AE to see the execution of OEM contract through. Therefore,

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the terms of payment of commission as stated in the Inter-Company Agreement is flawed and clearly shows that it was merely a tool to provide the AE with a fixed flow of funds from Its Indian operations.

4.8 In the TP documentation, it is stated that the Business development and commercial activities are performed by the AE towards sale of assessee's products to the OEMs. Thus, in this transaction, significant role is delineated for the AE, yet, no satisfactory evidence of rendition of services has been filed by the assessee.

4.9 During the course of proceeding before the Panel, assessee furnished additional evidence regarding rendition of services in payment of commission transaction. The same being critical and going to the root of the matter is hereby admitted, to be decided on merits. The additional evidence furnished by the assessee towards rendition of intra group service is as under-

“2. Set of Documentary Evidence (containing copy of Third-Party Purchase Order, Export Invoices raised by the Assessee, Shipping Bills and Supply instructions issued by AE.)

Further, the assessee wishes to humbly submit, a brief summary of the set of documentary evidence submitted before the Hon'ble DRP as additional evidence (refer page no. 238 to 319 of the Additional Evidence Paper book) indicating that these services have been received by the assessee:

S.No. Type of Evidence Parties involved Description of the document/Benefit derived 1 Set 1 Lear Mexican 1 Lear Mexican searing This set of documents is in relation seating Corp corp (Lear Mexico)- to providing evidence related to Third party procurement of sales support and representation services from AE For the purpose of the same the 2. Camaco Inc. assessee is submitting the PO (“Camaco”)-Group NO.416573 which is issued by Third entity party i.e Lear Mexico. 3. Amvian (Consisting of – Automodtive Private In respect of this PO, P & C Inc., Purchases Order – Limited (“AALP”)- issues supply instruction to AAPL Export Invoice – Assesse and specifying the notify party as Shipping Bill – Camaco (Group entity). Supply instruction) In furtherance to the above, AAPL exports the products as per the supply instructions and PO specification directly to the third party i.e Lear Mexico and also

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notified Camaco in relation to the same For the purpose of the same, AAPL has raised invoice No. AMM)89/20- 21 for exported through shipping Bill NO.5268636 2 Set 2 “Lear 1. Lear Mexican This set of documents is in relation Mexican Seating Seating Corp (Leaf to providing evidence related to Corp Mexico)-Third Party procurement of sales support and representation services from AE. (Consisting of 2. Camaco For the purpose of the same, the -Purchase Order LLC/Camaco assessee is submitting the PO -Export Invoice Inc.(Camaco)-Group No.254681, which is issued by -Shipping Bill Third Party i.e Lear Mexico. -Supply 3. Amvian Automotive Private Limited In respect of this PO, P & C Inc, (“AAPL”)- Assessee issues supply instruction to AAPL an specifying the notify party as 4. P & C Group 1 Inc.”)- Camaco (Group entity) AE In furtherance to the above, AAPL exports the products as per the supply Instructions and PO specifications directly to the third porty le., Lear Mexico and also notified Camaco in relation to the same. For the purpose of the some, AAPL has raised Invoice No. AMM161/20-21 for export of the required goods to Lear Mexico, which has been exported through Shipping Bill No. 7215991 3 Set 3 1. Yanfeng Adient (Wuhan) Seating Co. For the purpose of the same, the 'Yanfeng Adient Ltd ("Yanfeng assessee is submitting the PO No. (Wuhan) Seating Wuhan") - Third Party D2UC-Amvian, which is issued by Co. Ltd' Third Party i.e. Yanfeng Adient 2. Camaco (Wuhan) Seating Co. Ltd. (Consisting of: LLC/Camaco Inc. ("Camaco") - Group In respect of this PO, P & C Inc., - Purchase Order entity issues supply instructions to AAPL and specifying the notify party as - Export Invoice 3. Amvian Automotive ComacO Private Limited Shipping Bill ("AAPL") - assessee In furtherance to the above, AAPL exports the products as per the - Supply 4. P & C Group 1 Inc. ("P supply instructions and PO Instruction) & C Inc.") - AE specifications directly to the third party le, Yanfeng Wuhan and also 5. CS Nook

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notified Camaco in relation to the same. For the purpose of the same, AAPL has raised Invoice No. AMM127/20-21 for export of the required goods to Yanfeng Wuhan, which has been exported through Shipping Bill No. 6178596. 4 Set 4 'Lear 1. Lear Automotive This set of documents is in relation Automotive System System (Jiaxing) Co. to providing evidence related to (Jiaxing) Co. Ltd' Ltd ("Lear Jiaxing") - procurement of sales support and Third Party representation services from AE (Consisting of: 2. Camaco For the purpose of the same, the - Purchase Order LLC/Camaco Inc. assessee is submitting PO No. ("Camaco") - Group 495247, which is issued by Third - Export Invoice entity Party i.e Lear Jiaxing. - Shipping Bill 3. Amvian Automotive In respect of this PO, P & C Inc., Private Limited issues supply instructions to AAPL -Supply ("AAPL") - assessee and specifying the notify party as Instruction) Camaco. 4. P & C Group 1 Inc. ("P & C Inc.) - AE In furtherance to the above, AAPL exports the products as per the supply instructions and PO specifications directly to the third party i.e., Lear Jiaxing and also notified Camaco in relation to the same. For the purpose of the same, AAPL has raised Invoice No. AMM038/20-21 for export of the required goods to Lear Jiaxing, which has been exported through Shipping Bill No. 3985835.

4.10 The role of AE in all of these transactions is to issue a stereotype supply instruction to AAPL. One of such supply instruction is extracted as under

“….To Amvian Automotive Pvt. Ltd. Date: May 27 2020 Sub: Blanket Purchase Order No.495247

DRP-1: Objection No. 542/AY 2021-22

Blanket Purchase Order Date : Jan 06 2020

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We are pleased to inform that we have secured order from customer Lear Automotive System (Jiaxing) Co., Ltd (manufacture for the General Motors). Following will be the supply structure. Manufacturing Supply: AMVIAN AUTOMOTIVE PVT. LTD. E-7, GIDC MANJUSAR, TA. SAVLI VADODARA-391775, GUJARAT, India Biling To, :Lear Automotive System (Jiaxing) Co., Ltd. The East Side of Building 1, Kuntin (Pinghu) Industrial Park, No. 1669, Xinkai Road, Pinghu City, Jiaxing City, Zhejiang Province, China 314200 Ship To :Lear Automotive System (Jiaxing) Co., Ltd. The East Side of Building 1, Kuntin (Pinghu) Industrial Park, No. 1669, Xinkai Road, Pinghu City, Jiaxing City, Zhejiang Province, China 314200 Notify Part : Camaco LLC 37000 Twelve Mile Road, Suite # 105 Farmington Hills, MI 48331, USA Plex PO No.: 495247 4.11 Procurement of supply contract by the AE and referring it to the Indian entity cannot be the basis of payment of such a hefty commission. When Indian entity has the manufacturing facility to supply part of automotive components, by referring the supply order to the Indian entity, AE is furthering its own business interest. As per the details enumerated above, the AE is to be paid commission, for services rendered, post the receipt of the supply order from third- party by the assessee. While no such evidence has been furnished, reliance on these documents helps the assessee's cause in no manner whatsoever. At one place in the documents discussed supra, it is mentioned that APL would requisition the service from AE, the additional evidence of third-party purchase orders, discussed above, shows to the contrary. 4.12 In conclusion, the Panel would like to state that assessee has failed to furnish any satisfactory evidence that AE has rendered services to the assessee in lieu of commission payment. In such a transaction, the assessee should have been able to file documents such as e-mails to support requisition and rendition of services related to identification of new customers, status of Indian manufacturing facility specially in view of Covid lockdown, collection mechanism, negotiation for successful execution of the work order etc. However, no such document have been filed. The documents furnished do not show any light on the services

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rendered by the AE in connection with the sales made by AAPL Therefore, there was no justification for payment of commission as no service was rendered by the AE. 4.13 in the TP documentation, assessee had benchmarked this transaction with other transactions at aggregate level under TNMM. The approach of assessee is faulty as this transaction is not closely related to the major transaction of Sale of goods to the AE. The OECD Guidelines as well as india's TP Regulations prescribe a connection or continuation between the transactions for their aggregation. While the sale of goods transactions was with the AE, the commission on sales transaction arose from sales made to the third-party customers. Thus, there is no co-relationship between these two international transactions meriting aggregation under TNMM. The bench-marking of international transaction of commission in lieu of sales can only be made by following a segregated approach which has correctly been adopted by the TPO. 4.14 In absence of any evidence with regard to rendering of services by the AE, the transaction has been correctly bench-marked at 'nil' value by applying ALO as the MaM (no third party similarly placed would make such a payment to an unrelated party) because AAPL had failed to discharge its onus by filing necessary evidences to prove rendition of services by the AE, being a pre-requisite for making any payment. The case-laws cited by the assessee are on cost-benefit analysis. In the instant case, the TPO has focused only on finding whether assessee has filed evidences to prove rendering of services to justify payment of commission. In the case at hand, except for the Supply Instruction, as discussed supra by the Panel, AAPL could not furnish any evidence. Hence, there is no error in reasons adduced by the TPO for rejection of assessee's stand. 4.15 Thus, the adjustment of Rs. 10,84,14,434/- towards Intra-Group Services (Sales Commission Payment) is hereby confirmed.”

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demonstrate the involvement of the AE in securing and coordinating export transactions. The Ld. AR also submitted that the TPO had erred in determining the arm's length price at Nil without applying any recognized transfer pricing methodology.

Accordingly, the grounds of appeal raised by the assessee in this regard are allowed.

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Ground Nos. 12 to 22 -Transfer pricing adjustment on account of outstanding receivables

“5.3 In Ground number 2, the assessee has objected to the benchmarking of outstanding trade receivables by the assessee from its AE by treating the same as international transaction in the nature of unsecured loans and applying the CUP method to benchmark the same. The TPO has applied six-month LIBOR rate plus 400 basis points for charging notional interest on outstanding receivable @ 1.85% A detailed discussion in this regard has been made in para 6.1 and 6.3 of the TPO order dated 27.07.2023. The assessee has submitted that the assessee is involved in the selling of goods/ services mainly to its independent customers and also to its AEs. The assessee doesn't charge interest on receivables from the unrelated customers while providing the same services as to provide to its AEs. As under transfer pricing guidelines the companies are assessed on the basis of the arm's length price which can be compared to an unrelated party scenario. Thus, considering the third-party arrangement in Assessee's case, there is no interest charged on the receivables. It has been further submitted that the assessee has not paid any interest on the outstanding payables to its AEs. Therefore, the assessee does not have any negative receivable position with its AEs. Hence, no separate adjustment is warranted in case of receivables.

5.4 The DRP has considered the submissions of the assessee and the order of the TPO. Under sub-clause (c) of clause (i) of Explanation to section 928 read with section 92F(v) and Rule 108(2)(c) of the IT, Rules 1962, any arrangement between two AEs for allocation or apportionment of or any contribution to, any cost or expense incurred or to be incurred in connection with a benefit, service or facility provided or to be provided to any one or more of such enterprises is an international transaction. In this case, the assessee has allegedly provided benefit to its AE by way of delayed receipt of receivables, which in normal course would have been deployed elsewhere, including for earning interest there-from. The

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assessee has therefore, incurred cost in connection with a benefit and services provided to its AE by way of delayed receipt of receivables. This position has been upheld by Hon'ble Delhi High Court vide its order ITA 461/2017 and 526/2017 dated 09.08.2018 in M/s Mckinsey Knowledge Centre India Pvt. Ltd. vs PCIT-6, Delhi, by endorsing the decision of the Hon'ble ITAT, Delhi that interest on delayed receivables is a separate international transaction requiring an independent benchmarking analysis. The treatment of delayed payment as unsecured loan and an international transaction under Explanation 1(c) to section 928 and 92F(v) of the Act has also been upheld in Cheil India (P) Ltd. Vs. DCIT, 2014, 46 Taxmann.com 90 (Del. Trib.).

5.5 Provisions of the statute regarding the meaning of "International Transactions" came to be amended by the Legislature by the Finance Act 2012 whereby a new explanation was inserted with retrospective effect from 01.04.2002 whereby Explanation (1)(c) of section 928 created a deeming fiction treating the payments or deferred payment or receivables or any other debt arising during the course of business as a separate international transaction. Taking note of this amendment, the Hon'ble ITAT in Bechtel's own case for AY 2012-13 rejected all contentions of the assessee in its decision reported in Bechtel India Pvt Ltd v ACIT [2017] 85 taxmann.com 121 (Delhi - Trib) in the following words:

"17. We have considered the submissions of both the parties and perused the record of the case. The assessee's grievance is two-fold. Firstly, when working capital adjustment has been made, then, no separate adjustment is required to be made in respect of accounts receivables because the same gets subsumed in the working capital adjustment. The second plea of the assessee is that since its funds are entirely debt free, therefore, no adjustment is warranted in regard to late realization of proceedings from receivables. The assessee's reliance as noted earlier, is on the decisions in its own cases for assessment years 2010- 11 and 2011-12. The issue has been elaborately considered in the case of Ameriprise India (P.) Ltd. (supra) and, again, in of Mckinsey Knowledge Centre (P.) Ltd. (supra). of Techbooks India International (P.) Ltd. (supra), taking note of the Explanation inserted by the case In the case Finance Act, 2012 to Section 928, it was observed that there remained no doubt that apart from any short-term or long-term borrowing, etc., or even advance payments or deferred payments, 'any other debt arising during the course of business' had also been expressly recognized as an international transaction. In the said decision, the decision of the Hon'ble Bombay High Court in the case of CIT v. Patni Computer Systems Ltd. [2013] 33 taxmann.com 3/215 Taxman 108 was also considered, wherein Hon'ble Bombay High Court set aside the view taken by the Tribunal in view of amendment to section 928. The decision in the case of Kusum Healthcare (P.) Ltd. (supra) was duly considered in the case of Ameriprise India (P.) Ltd. (supra). and it was observed from paras 20 to 23 as under:-

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'20. The Id. AR supported the impugned order by relying on a Tribunal order dated 31.3.2015 passed in Kusum Healthcare Pvt. Ltd. v. ACIT (ITA No.6814/Del/2014) in which it has been held that no additional imputation of interest on the outstanding receivables is warranted if the pricing/profitability is more than the working capital adjusted margin of the comparables. In the opposition, the Id. DR relied on a later order dated 6.7.2015 passed by the Tribunal in the case of Techbooks International Pvt. Ltd. (supra), in which the transfer pricing adjustment on account of the delayed realization of invoices from AEs has been upheld. The Id. DR contended that the order in the case of Kusum Healthcare Pvt. Ltd. (supra), has been passed without considering the amendment to section 928 carried out by the Finance Act, 2012 with retrospective effect from 1.4.2002, which has been duly taken into account by the Tribunal in its later order in Techbooks International Pvt. Ltd. (supra).

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no or low receipt of interest, then such interest expense/income need to be brought to its ALP. The expression 'debt arising during the course of business' in common parlance encompasses, Inter alia, any trading debt arising from the sale of goods or services rendered in the course of carrying on the business. Once any debt arising during the course of business has been ordained by the legislature as an international transaction, it is, but, natural that if there is any delay in the realization of such debt arising during the course of business, it is liable to be visited with the TP adjustment on account of Interest income short charged or uncharged. Under such circumstances, the contention taken by the assessee before the TPO that it is not an International transaction, turns out to be bereft of any force.

"(c) Whether on the facts and circumstances of the case and in law, the Tribunal did not err in holding that the loss suffered by the assessee by allowing excess period of credit to the associated enterprises without charging an interest during such credit period would not amount to International transaction whereas section 928(1) of the income-tax Act, 1961 refers to any other transaction having a bearing on the profits, income, losses or assets of such enterprises?"

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hand, the international transaction of interest receivable from its AEs for late realization of invoices beyond such stipulated period is a separate international transaction. Allowing working capital adjustment in the international transaction of rendering of services can have no impact on the determination of ALP of the international transaction of interest on receivables from AEs beyond the stipulated period allowed as per agreement. In the case of Mckinsey Knowledge Centre (P.) Ltd. (supra), again, the Tribunal reiterated this reasoning and, inter alia, observed that:

"...... In our considered opinion, whereas, the international transaction of purchase/sale of goods from/to AE contemplates comparison of the price charged/paid for such goods by impliedly including the interest for the period allowed for realization of invoices as per the terms of the agreement, the international transaction of charging interest on late recovery of trade receivable covers the period which starts with the termination of the period of credit allowed under the agreement, which is subject matter of the international transaction of purchase/sale of goods.”

5.6 Thus, post-amendment, the findings recorded by the Tribunal in Bechtel India Pvt Ltd v ACIT [2017] 85 taxmann.com 121 (Delhi-Trib) for AY 2012-13 may be summarized as follows:

i. Apart from any long-term or short-term lending or borrowing, etc., or any type of advance payments or deferred payments, 'any other debt arising during the course of business' has also been expressly recognized as an international transaction. That being so, the payment/non-payment of interest or receipt/non-receipt of interest on the loans accepted or allowed in the circumstances as mentioned in this clause of the Explanation, also become international transactions, requiring the determination of their ALP.

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ii. The argument that just because the company was debt free fund company, no interest could be attributable on the late realization of receivables is not acceptable because interest on delayed realization of receivables is a separate international transaction and, therefore, requires separate benchmarking. It has nothing to do with the operations of the assessee company being with the debt free funds only. 5.7 Thus, the post-amendment, it is the subsequent decision of ITAT (reported in Bechtel India Pvt Ltd v ACIT [2017] 85 taxmann.com 121 (Delhi - Trib) for AY 2012-13) holds the field and not the earlier decision of AY 2010-11.

The assessee's reliance on the Delhi High Court's decision in PCIT v Kusum Health Care (P) Ltd (2018) 99 taxmann.com 431 (Delhi) is quite misplaced as in that case, the assessee had already factored in the impact of receivables on its pricing/ profitability by way of undertaking working capital adjustment to comparable companies' profit margins and any further adjustment for outstanding receivables would have distorted the picture and re-characterized the transaction. Further, the assessee's pattern of sales realization in that case did not indicate any arrangement of parking receivables with the AE. In the case at hand, no such analysis of pattern of receivables of different years have been given and under the circumstances the huge delay in receiving the receivables will partake the character of 'international transaction' for the purpose of transfer pricing benchmarking.

5.8 Further, in Kusum Health Care (P) Ltd cited supra, an important aspect of the matter was not brought to the notice of their lordships that this new explanation to section 928 was specifically inserted to reiterate the fact that the items enumerated in the explanation will ipso focto partake the character of an international transaction and will be subjected to transfer pricing provisions irrespective of whether they have any bearing on profit/loss of the relevant year or their impact on profit/loss account is determinable under normal computation procedures other than the transfer pricing regulations. This legislative intent has been elucidated in the Explanatory Memorandum to the Finance Bill 2012 as follows:

"Il. Section 928 of the Act, provides an exclusive definition of International Transaction. Although, the definition is worded broadly, the current definition of International Transaction leaves scope for its misinterpretation.

The definition by its concise nature does not mention all the nature and details of transactions, taking benefit of which large number of International Transactions are not being reported by taxpayers in transfer pricing audit report. In the definition, the term "intangible property is included. Still, due to lack of clarity in respect of scope of intangible property, the taxpayer have not reported several such transactions.

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Certain judicial authorities have taken a view that in cases of transactions of business restructuring etc. where even if there is an international transaction Transfer Pricing provisions would not be applicable if it does not have bearing on profits or loss of current year or impact on profit and loss account is not determinable under normal computation provisions other than transfer pricing regulations. The present scheme of Transfer pricing provisions does not require that international transaction should have bearing on profits or income of current year. Therefore, there is a need to amend the definition of international transaction in order to clarify the true scope of the meaning of the term. "International transaction" and to clarify the term "Intangible property" used in the definition.

It is, therefore, proposed to amend section 928 of the Act, to provide for the explanation to clarify meaning of international transaction and to clarify the term intangible property used in the definition of international transaction and to clarify that the international transaction' shall include a transaction of business restructuring or reorganization, entered into by an enterprise with an associated enterprise, irrespective of the fact that it has bearing on the profit, income, losses or assets or such enterprises at the time of the transaction or at any future date. This amendment will take effect retrospectively from 1st April, 2002 and will, accordingly, apply in relation to the assessment year 2002-03 and subsequent assessment years."

5.9 Thus, the context of incorporating the explanation to section 928 was to specifically bring Interest on delayed receivables within the purview of TP regulations. This aspect has not been considered in Kusum Health Care (P) Ltd cited supra.it is a fundamental rule of interpretation of an explanation to a provision that it must be interpreted on its own terms and tenor. A Constitution Bench of the Supreme Court has illustrated this principle of interpretation in Burmah Shell Oil Storage And Distributing Co. of India v CTO, 1962 SCR Supl. (1) 242, wherein Hidayatullah J, speaking for the court, observed as follows:

"Now, the Explanation must be interpreted according to its own tenor, and it is meant to explain el. (1) (a) of the Article and not vice versa. It is an error to explain the Explanation with the aid of the Article, because this reverses their roles."

Thus, when the explanation specifically brings into ambit the interest on delayed realization of receivables, no further context is required to be seen and no further examination of its being an international transaction in view of law laid down by the Constitution Bench in Burmah Shell cited supra. In view of the above, the DRP finds no infirmity in the action of the TPO in treating interest on delayed payment of outstanding receivables as separate international transaction and benchmarking the same separately.

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5.10 It is well settled that the rate of interest applicable is determined by the currency in which the loan has been repaid, in line with judgment of the Hon'ble Delhi High Court in the case of M/s Cotton Naturals. As regards the period of the delay to be considered for charging interest on receivables, considering the normal trade practices, DRP has been of the consistent view that a delay of 60 days is reasonable for receipt of payments against Invoices/transactions. As noted by the TPO the ALP must include a markup for the currency risk arising from the fluctuation in foreign exchange rate borne by the taxpayer. Considering these facts, the Panel upholds six-month LIBOR Plus 400 Basis Points, i.e., 4.3713% as the appropriate CUP applied by the TPO. However, for the purpose of computing the Arm's length interest on receivables, the AO/TPO is directed to exclude a period of 60 days from the total period of delay in receiving payments against Invoices raised by the assessee.”

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AEs. We find that the assessee had benchmarked its international transactions under TNMM and its operating margin has been accepted by the TPO. It is also an undisputed fact that the receivables arise from the principal transaction of sale of goods to AEs. We have gone through the decisions substantiating the plea that once the tested party’s margins are found to be at arm’s length under the TNMM, and adequate working capital adjustment is made, there is no scope for a further separate adjustment on account of notional interest on delayed receivables from AEs:

(i) CIT vs. AMD India (P) Ltd in ITA No.274/2018 (Karnataka High Court), (ii) Mckinsey Knowledge Centre India (P) Ltd vs. CIT in ITA No.461/2017 (Delhi High Court) (iii) CIT vs. Vaibhav Gems Ltd reported in (2017) 88 taxmann.com 12 (Raj.), (iv) CIT vs. Cotton Naturals (I) Pvt. Ltd (2015)231 Taxmann.com 401 (Delhi High Court)

Above all, the credit period of 95 days by the assessee to the AE for computation of interest on outstanding receivables, which is arbitrarily decided as 60 days by the DRP as an allowable credit period. In the instant case, the receivables have been recharacterized as unsecured loans and interest has been charged by the Revenue Authorities. The assessee has neither charged any interest nor paid interest

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to the sale/purchases in respect of transactions with uncontrolled entities and non- AEs. Having found that no interest was charged on receivables from either AEs or non-AEs and that the working capital adjustment already neutralizes the impact of any delay in realization, as substantiated by factual workings placed on record and no contrary evidence has been brought by the Revenue to show that the assessee conferred any undue benefit on AEs by way of differential credit terms and in the absence of any real income earned or notional income determinable, we hold that no adjustment on account of interest receivables is warranted.

The grounds of appeal raised by the assessee on this account are accordingly allowed.

The order is pronounced in the open Court on 15.06.2026.

Sd/- Sd/-

( (T.R. SENTHIL KUMAR) (DR. B.R.R. KUMAR) JUDICIAL MEMBER VICE-PRESIDENT Ahmedabad; Dated 15.06.2026

आदेश की �ितिलिप अ�ेिषत/Copy of the Order forwarded to : अपीलाथ� / The Appellant 1. ��थ� / The Respondent. 2. संबंिधत आयकर आयु� / Concerned CIT 3. 4. आयकर आयु�(अपील) / The CIT(A)- 5. िवभागीय �ितिनिध, आयकर अपीलीय अिधकरण, अहमदाबाद / DR, ITAT, Ahmedabad गाड� फाईल / Guard file. 6.

आदेशानुसार/ BY ORDER, True Copy

सहायक पंजीकार (Dy./Asstt. Registrar) आयकर अपीलीय अिधकरण, , अहमदाबाद / ITAT, Ahmedabad , ,