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Facts
The assessee, engaged in manufacturing specialty motors, filed its return. During scrutiny, international transactions with associated enterprises (AEs) came up for review, particularly regarding sales commission paid to its AE in Switzerland and marketing/procurement services from its AE in China. The Assessing Officer (AO) and Transfer Pricing Officer (TPO) made significant adjustments to the transfer prices.
Held
The Tribunal, in relation to the sales commission to the Swiss AE (Grounds 3 & 4), set aside the issue to the AO/TPO for fresh adjudication, directing the assessee to substantiate the services rendered and their benefit. For marketing and procurement services from the Chinese AE (Ground 5), the Tribunal also set aside the issue for fresh determination by the AO/TPO, focusing on the need, rendition, and benefit tests. Ground 6 regarding a disallowance already allowed by the CIT(A) was also allowed.
Key Issues
Whether the transfer pricing adjustments made by the AO/TPO for sales commission and marketing support services are justified, and whether the assessee has provided sufficient evidence to establish the arm's length nature of these transactions.
Sections Cited
143(3), 144C(13), 144B, 153, 92C(3), 234A, 234B, 234C, 270A, 143(1), 36(1)(va), 35(1)(ii), 143(1a), 142(1), 3CЕВ
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Income Tax Appellate Tribunal, “J” BENCH, MUMBAI
Before: SMT. BEENA PILLAI & SHRI GIRISH AGRAWAL
Per: Smt. Beena Pillai, J.M.: The present appeal filed by the assessee arises out of final assessment order dated 23/11/2024 passed by Assessment Unit, for assessment year 2021-22 on following grounds of appeal : “ The grounds mentioned herein by the Appellant are independent and without prejudice to one another.
A.Y. 2021-22 Portescap India Private Limited 1. Ground No.1: General Ground On the facts and circumstance of the case and in law, the final assessment order dated 23 October 2024, passed by the Assessment Unit, Income-tax Department ('the Ld. AO') under section 143(3) r.w.s 144C(13) r.w.s 1448 of the Income tax Act, 1961 ('the Act') in pursuance to the order of the Additional/ Joint Commissioner of Income-tax, Transfer Pricing, 3(3) Mumbai (the Ld. TPO'), and the directions dated 30 September 2024 passed by the Hon'ble Dispute Resolution Panel-2, Mumbai ('Ld. DRP) to the extent prejudicial to the Appellant, is without jurisdiction, bad in law and is liable to be quashed.
2. Ground No.2: Final Assessment order is time barred On the facts and in the circumstances of the case and in law, the final assessment order dated 23 October 2024, passed by the Ld. AO under section 143(3) r.w.s. 144C (13) r.w.s 144(B) of the Act, having been passed beyond the limitation period provided under section 153 of the Act is void-ab-initio, illegal and bad in law and is therefore liable to be quashed.
3. Ground No. 3: Transfer Pricing (TP) adjustment on accounts of payment of Sales Commission to Portescap S.A., Switzerland On the facts and in the circumstances of the case and in law, the Ld. AO/Ld. TPO/Ld. DRP erred in making an adhoc disallowance of 50% of transaction value while determining the arm's length price of the Appellant's international transaction of payment of sales commission to its Associated Enterprise ('AE') Portescap S.A., Switzerland, resulting in a transfer pricing adjustment of INR 20,79,23,538/-. While doing so the Ld. AO/Ld. TPO/Ld. DRP also erred in, inter alia,: 3.1Rejecting the economic and benchmarking analysis and methodology adopted by the Appellant, wherein benchmarking approach using aggregated/combined Transactional Net Margin Method ("TNMM") has been adopted as the most appropriate method ('MAM') for benchmarking the subject international transaction; 3.2Determining arm's length price of international transaction of payment for sales commission to AE as 'Nil' for the 50% value of the transaction, by adopting Other Method as the most appropriate method; A.Y. 2021-22 Portescap India Private Limited 3-3 Disregarding the TP study maintained by the Appellant in good faith and with due diligence; 3.4 Not appreciating the detailed submission and documentary evidence submitted by the Appellant to substantiate the receipt of services. 3.5 Inappropriately questioning the commercial wisdom of the Appellant for payment of commission, thereby ignoring the principal that it is not the domain of LA. TPO/A0/14. DRP to question the rendition of service and benefit arising therefrom: 3.6 Failing to appreciate that the payment of sales commission to the same AE had been accepted at arm's length in previous assessment years, and since there has been no change in the facts and circumstances in the current year, the arm's length nature of the said transaction cannot be questioned afresh. 3.7 Not appreciating the fact that the Ld. TPO/ Ld. AO can make adjustments to the arm's length price determined by the Appellant only when one or more conditions mentioned in clause (a) to (d) of Section 92C(3) of the Act are satisfied; 4 Ground No.4: Without prejudice to the above, on the facts and circumstances of the case and in law, the Ld. AO/ Ld. TPO/ Ld. DRP erred in rejecting the additional/ corroborative benchmarking undertaken by the Appellant, based on a systematic search process using the RoyaltyStat database, and thereby arbitrarily dismissing all comparable companies without providing any valid reasoning.
5. Ground No.5: TP adjustment for payment of marketing, support and procurement services to A&S Industry Technology (Tianjin) Co. Limited On the facts and the circumstances of the case & law, the Ld. AO/Ld. TPO/ Ld. DRP erred in making ad-hoc disallowance of 60% of transaction value while determining the arm's length price of the Appellant's international transaction of payment for availing marketing, support and procurement services from its AE - A&S Industry Technology (Tianjin) Co. Limited, resulting in transfer pricing adjustment of INR 3,39,49,826/-, While doing so, the Ld.AO/Ld. TPO/ Ld. DRP also erred, inter alia, in: 5.1 Rejecting the economic and benchmarking analysis and methodology adopted by the Appellant, wherein benchmarking A.Y. 2021-22 Portescap India Private Limited approach using aggregated/combined Transactional Net Margin Method (TNMM') has been adopted as the most appropriate method ('MAM') for benchmarking the subject international transaction. 5.2 Determining arm's length price of international transaction of payment for receipt of marketing, support and procurement to AE as 'Nil' for the 60% value of the transaction, by adopting Other Method as the most appropriate method. 5.3 Disregarding the TP study maintained by the Appellant in good faith and with due diligence 5-4 Not appreciating the detailed submission and documentary evidence submitted by the Appellant to substantiate the receipt of services. 5.5 Inappropriately questioning the commercial wisdom of the Appellant for payment towards availing these services, thereby ignoring the principal that it is not the domain of Ld. TPO/AO/Ld. DRP to question the rendition of service and benefit arising therefrom 5.6 Failed to appreciate that the payment towards availing these services to the same AE had been accepted at arm's length in previous assessment years, and since there has been no change in the facts and circumstances in the current year, the arm's length nature of the said transaction cannot be questioned afresh. 5.7 Not appreciating the fact that the Ld. TPO/Ld. AO can make adjustments to the arm's length price determined by the Appellant only when one or more conditions mentioned in clause (a) to (d) of Section 92C(3) of the Act are satisfied; 6. Ground No.6: Error in determination of assessed income On the facts and in the circumstances of the case and in law, the Ld. AO erred in determining the assessed income as per the Intimation u/s 143(1) of the Act, without appreciating the fact that relief has been granted by the Ld. Commissioner of Income Tax (Appeals) vide order dated 1ª July 2024 against erroneous additions made in the Intimation u/s 143(1) of the Act. The appellant therefore submits and prays that the aforesaid adjustment be deleted.
7. Ground No.7: Incorrect computation of interest under Section 234A of the Act A.Y. 2021-22 Portescap India Private Limited On the facts and in the circumstances of the case and in law, the Ld. AO erred in computing and levying interest of INR 26,07,632/- under Section 234A of the Act. The Appellant prays that the Ld. AO be directed to vacate the interest under Section 234A of the Act as per law and after considering the reliefs to be granted by your Honour in your Appellate Order 8. Ground No.8: Incorrect computation of interest under Section 234B of the Act On the facts and in the circumstances of the case and in law, the Ld. AO erred in computing and levying interest of INR 2,80,32,044/- under section 234B of the Act and hence necessary directions may please be given to the Ld. AO to vacate the interest levied u/s 234B on disposal of appeal.
Ground No.9: Incorrect computation of interest under section 234C of the Act On the facts and in the circumstances of the case and in law, the Ld. AO erred in computing and levying interest of INR 1,19,648/- under section 234C of the Act and hence necessary directions may please be given to the Ld. AO to vacate the interest levied u/s 234C.
Ground No.10: Initiation of penalty proceedings On the facts and in the circumstances of the case and in law, the Ld. AO has grossly erred in initiating penalty proceedings u/s 270A of the Act mechanically and without recording any satisfaction for its initiation.” Brief facts of the case are as under:
2. The assessee is engaged in the business of manufacturing special purpose motors and sub assemblies thereof for electronic industries. It filed its return of income for year undier consideration on 14/03/2022 declaring total income at Rs.2,19,30,73,890/- under the normal provisions of the Act. The CPC issued intimation u/s. 143(1)(a) of the Act, on 31/05/2022 A.Y. 2021-22 Portescap India Private Limited proposing to make disallowance u/s. 36(1)(va) amounting to Rs.5,555/- and disallowance u/s.35(1)(ii) amounting to Rs.1,38,00,000/-. In response to the intimation the assessee submitted its response through e-filing, objecting to the disallowance purposed u/s.36(1)(ii) of the Act. The CPC however made the two disallowances in the hands of the assessee. The CPC further made addition of Rs.4,25,56,670/- on account of net effect to ICBS(v) without providing an opportunity of being heard to the assessee. The assessee was also granted short credit of TDS and TCS. Aggrieved by the order passed by CPC order u/s.143(1a), assessee preferred appeal before the Ld. CIT(A).
3. The Ld. CIT(A) allowed the contention raised by the assessee and deleted the disallowance made in the hands of the assessee. 3.1 Simultaneously, the return was selected for scrutiny under CAF and notice u/s.142(1) was issued to the assessee against which the responses were filed by the assessee. From the details filed the Ld.AO noted that, the assessee had international transactions with its associated enterprise and accordingly reference was made to the transfer pricing officer to determine the arms length price of the transaction. 3.2. On receipt of the reference, the Ld.TPO called for the economic details of the international transaction in form 3CEB. The Ld.TPO observed that, assessee is engaged in the business of manufacturing high precision, special purpose motors – brush (DC) motors, brushless(BLDC motors) and stepper motors. It was noted by the Ld.TPO that, assessee is a part of Altra Industrial Motion Group and the equity shares of assessee company was A.Y. 2021-22 Portescap India Private Limited held by the AE in Singapore and AS Motions Asiapac Holding Ltd. The Ld.TPO thus observed that, Altra Industrial Motion Group entities were constituted as assessees AE’s by virtue of common control and capital. It was noted that the AE is located in various geographical jurisdictions. 3.3. During the year under consideration, assessee had following international transaction with its associated enterprise.
Section Nature of Paid/ Received Name of Value (INR) No. of transaction associated TP enterprise Report Sales of Received/ American 25,18,60,727 Finished Receivable Precision Goods & Industries Inc. Components Altra Industrial 47,658 (net of returns) Motion Do BrasilEqupInd Ltda- Kolm 15,46,509 ElsimElektrote 1,73,91,947 knikSistemlerS anayiveTicaret A.S
Portescap Co., 1,09,72,112 Limited 4.1 Portescap S.A. 28,18,18,953 Total 5,11,45,350 American 84,630 Precision Industries Inc. Thomson BSA 1,80,675 Purchases (net Paid/Payable Inertia 34,36,940 of returns) Dynamics LLC Raw Portescap S.A. 5,48,47,595 Materials Total & American 92,66,232 components Precision Industries Inc. Portescap S.A. 7,69,095 Purchases (net Paid/Payable Huco 3,341 A.Y. 2021-22 Portescap India Private Limited of returns) Engineering Tools & Industries Spares Limited Kollmorgen 96,181 Europe Gmbh Total 1,01,34,848 A&S Industry 2,18,710 Technology (Tianjin) co Limited Portescap S.A. 17,19,498 Kollmorgen 1,10,210 Corporation (Radford) Purchase of Paid/Payable Kollmorgen 21,16,107 Capital Goods Europe Gmbh American 4,82,028 Precision Industries Inc. Total 46,46,554 Services Paid/Payable ASS Industry 5,65,83,043 received Technology(Tia njin) co Limited Total 5,65,83,043 Thomson 46,06,000 Industries Altra Industrial 52,87,321 Motion Corp Kollmorgen 36,81,119 Corporation (Radford) Services Received Jacobs Vehicle 27,71,000 provided Receivable Systems Kollmorgen 1,93,84,673 Europe Gmbh Total 3,57,30,113 Sales Pald/Payable Portescap S.A 44,79,63,311 Commission Total 44,79,63,311 4.2 Recovery of Received/ American 7,12,601 expenses from Receivable Precision AES Industries Inc Altra Industrial 2,15,98,058 Motion Corp Total 2,23,10,659 4.3 Reimburseme Paid/Payable Altra Industrial 1,26,59,991 nt of expenses Motion Corp to AEs Total 1,26,59,991 4.4 Issue of equity Received/ Altra Industrial 2,86,66,542 3.4. The Ld.TPO observed that, assessee has paid commission to its AE in Switzerland of Rs.44.79 crores during the year under consideration as agency fees it was noted that assessee had bench marked transaction on aggregate basis with the manufacturing activities by using TNMM as most appropriate method and OP/OR as PLI . The Ld.TPO noted that during the year the entity level profit declared by the assessee was 34.94% 3.5. The Ld.TPO thus called upon assessee to furnish various details in respect of the international transactions and to explain us to why the commissions paid to AE in Switzerland and AE China not to be disallowed. 3.6. In response the assessee submitted that, the AE in Switzerland contact potential customer, communicate pricing any other term set by the assessee for sale of its product, acts as communication channel with the customers, assessed in on boarding additional customer, maintain relationship to retain them etc. Vide submission dated 17/11/2022, the assessee furnished detailed nature and support provided by the Switzerland AE to assessee, based on the inter company agreement, summary of sales commissions paid by assessee, documentary evidence substantiate the duties and responsibilities performed by the Switzerland AE. 3.7. The Ld.TPO again issued show caused notice calling upon assessee to furnish its response as to why, the transaction should not be segregated from the manufacturing activity. In A.Y. 2021-22 Portescap India Private Limited response the assessee vide reply dated 12/11/2023 submitted that, the payment of commission to its Switzerland AE inextricably linked with the manufacturing activity. It was submitted that, the primary activity of assessee is manufacturing of high precision special purpose motors at the sale of this manufactured product was effectuated with the help of Switzerland AE. It was submitted that, for the preceding assessment years from A.Y. 2012 – 13 the aggregated approach adopted by the assessee was accepted by the transfer pricing officers in the past and there has been no adjustment in respect of the commission paid by the assessee to its Switzerland AE till assessment year 2020-21. 3.8. It was also submitted that there is no material change in the operations of the assessee for the year under consideration. The Ld.TPO however rejected the bench marking of the assessee and held that TNMM is not appropriate method to determine the ALP of Intra Group Services. The Ld.TPO proposed to analysis transaction under “other method” by giving importance to need/evidence/benefit test method. Assessee thus furnished fresh independence search of international transaction for sales commission vide its reply dated 21/11/2023 based on the requirement expressed by the Ld.TPO vide its show caused notice date 08/09/2023. The assessee therein submitted that, it has paid commission at the rate of 10% on the effective sales from April,2020 to December, 2020 and 12% commission on effective sales from January, 2021 to March, 2021. The comparables selected under the fresh search had a median of 11.25 % and the assessee considered the transaction to be at arms length the A.Y. 2021-22 Portescap India Private Limited assessee also furnished comparative analysis of gross margin earned by the assessee as against the comparative. It was submitted that, assessee earned 59.46% as gross margin on the sales whereas the median of the comparables was 33.64% to 36.21% only. The assessee thus submitted that, even under CUP it has a better margin as compared to the comparables upon segregation of this transaction from the manufacturing activities. 3.9. The Ld.TPO analysis the evidence furnished as under :
“ANALYSIS OF EVIDENCE BΥ ΤΡΟ 1. To support these transactions the assessee submitted evidences in the form of EMAIL correspondence only as Appendix 4A to Appendix 4L. The contents of the email were examined and it was found that these emails are actually related to sharing of certain information, meeting and invitation of conference. The discussion is on the current status of production, supply chain, stock availability, price and other related information. A close perusal of these emails only indicates sharing of information and does not speak sufficiently on the rendition of the services and commensurate benefits derived by the Assessee Company.
2. Further email correspondence includes, asking for availability, need for quotation, placing of order, taking quotation, payment related queries etc. This does not indicate that the payment at the rate of 10% to 12% of the sale is justified and with regard to comparability analysis, it is at arm's length and any third party will be ready to pay for the services provided by the Portescap, SA. AE 3. The assessee is paying 10 to 12% as agency fees (common on sales to its AE, in Switzerland. These payments are made pursuant to the agreement dated 15.07.2015.However, no rationale has been provided in the agreement for the payment of such huge commission on sale. In the agreement, there are huge number of services to be rendered by the AE in terms of agency services for which the rate of commission has been decided. However, from the details submitted, it is not ascertainable whether all these services have been rendered and commensurate benefits have been availed by the Assessee in India”
A.Y. 2021-22 Portescap India Private Limited 3.10. The Ld.TPO also observed that, following for the benefit assessee received from the agency services from its Switzerland AE:
Description of Benefits derived by PIPL Remarks of the services from receipt of services TRANSFER PRICING OFFICER Sales commission Poertescap S.A. will To demonstrate the to Portescap S.A. for contact benefits derived by the sale of agreed -potential customers in PIPL, Indian company products in North the Territory, only certain America, Europe and communicate pricing communication email Asia (excluding China, and other terms set by were submitted. These Korea and India) PIPL for sale of Agreed emails are very general manufactured by PIPL Products to these in nature. customers and shall No sufficient support PIPL in sale of documentary evidences Agreed Products in the were submitted e to Territory and shall: show the benefits e - Introduce and canvass derived and that benefit the orders for the Agreed is to commensurate to Products in the Territory the payments made for on behalf of PIPL using en availing such its best efforts on a services. The assessee regular basis. relied on several case laws but failed to - Make best efforts in corroborate the same supporting PIPL to with the fact of the increase the sales present case volumes of Agreed satisfactorily Products in the Territory under the overall guidance and time to time inputs from PIPL. - act as a communication channel between a customers, potential customer and PIPL - Promptly report to PIPL any significant customer complaint or incident concerning personal injury.t property damage or nonperformance that has been alleged to have arisen out of or in connection with the A.Y. 2021-22 Portescap India Private Limited handling, use and/ or application of the Agreed Products. - Promptly notify PIPL in writing, should PCH become aware of any condition which may render the Agreed Products in violation of any applicable law, governmental regulation, rule or order in the Territory. - as an when the inquiries are received from potential customers, forward the same to PIPL for their acceptance/ approve. - In case where sale has materialized between PIPL and customer, PCH will assist PIPL in following up for payment 3.11. The Ld.TPO thereafter considered the various clauses under agency agreement under which the Switzerland AE has to rendered its services as under: “Article 2 Duties and Responsibilities of Agent (PCH) 1. PCH will contact potential customers in the Territory, communicate pricing and other terms set by PI for sale of Agreed Products to these customers and shall support Pi in sale of Agreed Products in the Territory and shall: a. Introduce and canvass the orders for the Agreed Products in the Territory on behalf of Pl using its best efforts on a regular basis. b. Make best efforts in supporting Pl to increase the sales volumes of Agreed Products in the Territory under the overall guidance and time to time inputs from Pl. c. act as a communication channel between customers, potential customer and Pl. d. as and when the inquiries are received from potential customers, forward the same to Pl for their acceptance/approvals and not conclude any contract on its own on behalf of Pl.
A.Y. 2021-22 Portescap India Private Limited e. Promptly notify Pl in writing, should PCH become aware of any condition which may render the Agreed Products in violation of any applicable law, governmental regulation, rule or order in the Territory. f. Promptly report to Pl any significant customer complaint or incident concerning personal injury, property damage or non-performance that has been alleged to have arisen out of or in connection with the handling, use and/or application of the Agreed Products. g. In case where sale has materialized between Pl and customer, PCH will assist Pl in following up for payment. OBSERVATION OF TPO No sufficient evidence was given to demonstrate that these services have been rendered by the foreign AE. With reference to the agreement, the assessee was specifically asked vide query letter dated 08/09/2023 to submit the following details (i) All annexure including annexure of agreed products give the details, party wise list of sales of agreed products on which agency fee agency for @ 10% has been charged by the AE (for DAHANER group separately) Separately. (ii) Copy of invoices. (iii) Provide the evidences as per the Article 2, Duties & Responsibilities of Agent (PCH) for rendering the services receipt of commission on sales. OBSERVATION OF TPO In response to the same, assessee did not provide the sufficient details. Only the bifurcation of commission payments, debit note and 2 emails were provided. In the previous agreement, the rate of commission was 10% which was further increased to 12%. As per the agreement, it is very clearly stated that commission will be payable only on successful completion of sale of agreed products. Assessee did not submit the complete details of sales of agreed products as mentioned in the Annexure A of the agreement. No complete sets of invoices were produced for verification. Article 6 Commission 1. Pl agrees that it will pay a commission to PCH, which will be paid subject to Pl successfully completing the sale of Agreed Products and receiving payments from the customer in the Territory.
In consideration of PCH providing agency services, PI shall pay to PCH commission at 12% of annual Sales amount on all shipments of the Agreed Products to direct customers (including A.Y. 2021-22 Portescap India Private Limited Altra group companies outside of the Portescap Group) effective as of January 1, 2021, net of any credits given to customers.
3. Apart from the above, there will be no other amount payable by Pl under this Agreement unless agreed in writing between the Parties.
4. PCH will raise invoices in respect of commission payable to it at monthly intervals. The invoices will be raised in USD.
PCH will provide credit facility of 45 days from the date of receipt of invoice by PI from PCH. PCH shall levy penal charges for late payment at the rate of 1% per month in case payment of commission is not received from PI within 45 days from the date of receipt of invoice by PI from PCH. The assessee was asked that, as per the agreed products list, provide the sale ledger along with the supporting invoices ANNEXURE-"A" Agreed Products cover under the Agreement 1 Brush DC Motors & Sub-assemblies thereof 2 Gearboxes 3 Brushless Motors & sub-assemblies thereof 4 Stepper Motors & Sub-assemblies thereof OBSERVATION OF TPO It is evident from the agreement above, that various scope of work has been specified in the agreement, but fact remains that the assessee could not file sufficient and credible evidence to prove that what services the AE have provided to the assessee in connection with sales made during the year. Emails are general correspondence between assessee and its AEs regarding follow up on orders and delivery, production planning, and capacity assessment introduction of a new model and communications of order confirmations, etc., However, these emails does not throw sufficient light on the services rendered by these two AEs in connection with sales made and the payment of commission on it. This is clear that the assessee could not file sufficient evidences to prove that AEs have rendered services to justify payment of agency commission” 3.12. The Ld.TPO then referred to the FAR analysis in the TP’s study and observed that assessee is mainly doing all significant functions, and the AE is engaged in strategic management and A.Y. 2021-22 Portescap India Private Limited its role is limited.The Ld.TPO noted that, the assessee paid the agencies commission fees at the rate of 10 to 12% for limited risk and functions performed by the Singapore AE and therefore is excessive. The Ld.TPO also noted that, the assessee failed to sufficiently demonstrate the commensurate benefit accrued to the assessee and the assessee did not separately bench mark for the payment of agency fee and failed to bring on record materials to establish the payment of commission at the rate of 10 to 12% is at arms length. The Ld.TPO also noted that, assessee failed to analyse 3rd parties with respect to commission payment. The Ld.TPO thus treated commission of Rs.47,79,63,311/- to be excessive and the ALP of the commission was determine to be 50% of the total payment made at Rs.20,79,23,538/- under any other method.
Another transaction analysed by the Ld.TPO was in respect of services received from its AE in China towards marketing support and procurement services against which the assessee made a payment of Rs. 5,65,83,043/-. 4.1 The Ld.TPO observed that, no separate bench marking was conducted for this transaction and it was aggregated with the manufacturing activity under TNMM as most appropriate method with OP/OR as PLI. It was noted that, at the entity level assessee declared profit at 34.94% and thus treated its margin to be at arms length. 4.2 The Ld.TPO noted that, these transactions were in the nature of IGS and TNMM is not appropriate method to bench mark the transaction. The assessee was thus called upon to furnish details and to submit copies of relevant agreements, A.Y. 2021-22 Portescap India Private Limited documents and supporting invoices, explain the nature of each service and to demonstrate as to how the transaction is inextricably linked that manufacturing activity. 4.3 In response to the show caused notice assessee submitted that, during the year under consideration it sold the product manufactured in India only to the extent of 4.16 crores. It was submitted that, all the product manufactured by assessee are exported to countries outside India and it would not be possible for assessee to effect such huge exports without the help of its AE located at various jurisdiction. 4.4 The assessee was also issued a show caused notice on 29/09/2023 by rejecting the bench marking carried out by the assessee. In response the assessee submitted that, assessee had entered into marking support services and sourcingsupport service from its China AE. It is submitted that, the AE has charged cost + 5% mark-up to assessee for product marketing supporting service and sourcing support service. The assessee furnished the marketing support service agreement, few samples copies of the invoices and few Emails in support of its claim. The details have been extracted by the Ld.TPO as under :
Description Mode of Benefits Duties and Supporting of services receipt of derived by responsibilities evidence services PIPL from as per Para 2 of receipt of the support services service agreement (Submitted on a sample basis) Receipt of Email and 1.) PIPL Meet customers Sample support meeting receives for general emails services invites for benefits from relationship/bus request for from A&S conference sales iness quotation A.Y. 2021-22 Portescap India Private Limited Tianjin calls expertise, development; from A&S relating to. knowledge Tianjin for to sale of and network in - Communicating agreed products in the foreign with customers products China region. This potential enclosed as helps in including Appendix reaching new passing on 8A to customers, quotation Appendix establishing received from 81. relationships, PIPL to potential Meeting and expanding customers; invites for the market -Provide internal presence information to discussion the customers as sales meet / 2.) PIPL can given by PIPL; status sell in foreign -Brief customers update etc. markets about the enclosed as without the products in Appendix need to which PIPL is 9A and establish a dealing in and Appendix dedicated sharing the 9B. sales team. standard price This allows for list; cost savings -Providing demo and faster and technical market entry information 3.) With the potential expertise and customers; support of the general to its ΑΕ, PIPL -Attend industry enjoys workshop, increased seminars provide sales volumes. and local market This, in turn, intelligence to leads to higher PIPL; revenue -Undertake generation market research: improved and -Providing business details of performance. principal (le. 4.) PIPL's AE PIPL) who could can provide be approached valuable siplacing an market order; for intelligence -Collecting and insights customer customers' requirements; preferences, -Pass on all about trends, enquiries A.Y. 2021-22 Portescap India Private Limited and received from competition in customers to the foreign PIPL for region. This necessary action information by PIPL helps the -A&S Tianjin Indian entity may at PIPL's make informed request act as a business courier to receive decisions and and transmit tailor its sales copies of any and marketing documents or strategies provide other accordingly. such administrative/s 5.) For such upport services services, PIPL as deem did not have necessary by any or PIPL; adequate -Acting as employees to communication handle channel between responsibilities Pl and the and hence, Prospective took customer. advantage of -Obtaining from in-house feedback resources customers and within its AEs. providing For this assistance to the reason, PIPL is Customer/PIPL availing such for handling complaints issues such and as faulty delayed products, delivery, after sales support services; -Further also convey to PIPL customer's comments on the performance of the product supplied by PIPL and passing on such feedback to A.Y. 2021-22 Portescap India Private Limited PIPL for necessary action. Following up for timely payment by the customer against deliveries made by PIPL from time to time based on the supply of goods/invoices raised on the Customer in line with 4.5 From the agreement dated 01/11/2018 the Ld.TPO noted that, the Chinese AE was appointed to perform marketing support services in the nature of liasioning, facilitation and coordination in China and Taiwan. The relevant clauses under the agreement has been extracted by the Ld.TPO as under: “Marketing Support Services 2.1 During the term of this agreement, A&S Tianjin shall perform, marketing support services as instructed by Pl and which are described in detail in the sub-paragraph 2.3 below. 2.2 A&S Tianjin shall be responsible for the following support services based on instruction, communication provided by PI from time to time: • Meet customers for general relationship/business development; • Communicating with potential customers including passing on quotation received from Pl to potential customers; • Provide information to the customers as given by Pl; • Brief customers about the products in which Pl is dealing in and sharing the standard price list; • Providing demo and general technical information to potential customers; • Attend industry workshop, seminars and provide local market intelligence to Pl; • Undertake market research; • Providing details of principal (i.e. Pl) who could be approached for placing an order; A.Y. 2021-22 Portescap India Private Limited • Collecting customer requirements; • Pass on all enquiries received from customers to Pl for necessary action by Pl; • Following up for timely payment by the customer against deliveries made by Pl from time to time based on the supply of goods/invoices raised on the Customer in line with Customer's contract; • A&S Tianjin may at Pl's request act as a courier to receive and transmit copies of any documents or provide other such administrative/support services as deem necessary by Pl; • Acting as communication channel between Pl and Prospective customer. • Obtaining feedback from customers and providing assistance to the Customer/ Pl for handling complaints and issues such as faulty products, delayed delivery, after sales support services; • Further also convey to Pl customer's comments on the performance of the product supplied by Pl and passing on such feedback to Pl for necessary action ………..
Payment of Fees 3.1 PI shall pay to A&S Tianjin, all direct and indirect costs and expenses (including reasonable allocation of common overhead costs) incurred by A&S Tianjin in performing the services to be provided under this Agreement (excluding any income taxes and corporation taxes claimed in China) plus an arm's-length markup on such costs and expenses. The mark-up on the above costs will be on an arm's-length basis and determined / supported by an independent transfer pricing study commissioned by A&S Tianjin periodically as may be required. The billing will be done in USD. PI shall also pay applicable VAT or Service Tax or any other duty/levy/cess as may become applicable and levied by A&S Tianjin. 3.2 A&S Tianjin shall raise monthly invoice on Pl supplement by its cost and expenses (including supporting documents, if any) within reasonable period post month-end. A&S Tianjin may request Pl for advance payments (based upon its own estimate of costs and expenses to be incurred by it during an agreed future period). In the absence of manifest error, PI shall within one week of receipt of any such invoice and/or advance request pay to A&S Tianjin the amount shown therein.
A.Y. 2021-22 Portescap India Private Limited 3.3 Within 60 (Sixty) days after the end of each fiscal year of A&S Tianjin, A&S Tianjin shall submit a statement showing the actual costs and expenses incurred and reimbursement payable in accordance with clause 3.1 in such year. Pl may get the cross charge audited once a year through an independent agency, at their cost, and A&S Tianjin can facilitate such engagement. Any adjustments that may be necessary against advance payments made in respect of such year for such costs and expenses and fees shall be effected within one month of submission of such statement, either by further payment by Pi to A&S Tianjin or by repayment / advance treatment of such sums by A&S Tianjin to Pl as the case may be. Article 1 Scope of work of A&S TIANJIN 1. Pl, in good faith and subject to the restrictions contained hereinafter in this Agreement, authorizes A&S TIANJIN to represent it in the Territory for procurement of materials by providing assistance to Pl in the following areas: a. Undertake market research in order to identify the vendors. b. Meet vendors for general relationship/business development c. Contacting vendors in the Territory and providing their information to Pl; d. Procure samples and sending the same to Pl for approval; e. Undertake visit at site of the Vendor so as to identify whether Vendor has required Infrastructure in place to supply required material if orders is placed by PI with Vendor f. Communicate to Pl the pricing and other terms of vendors for supply of materials; g. Pass on all the enquiries received from Pl to the vendors in relation to the products and their required specifications. h. Provide details of the Principal (PI) to the vendor i. Coordinate between Pl and the vendors in connection with the placement of purchase order, timeline of delivery etc; j. Update Pi on all other discussions with the vendors supplying materials; k. Dispatch of materials to Pl so that these materials are received by Pi in India on time and in correct quantity; and A.Y. 2021-22 Portescap India Private Limited l. Provision of any other necessary administrative and co-ordination support to Pl for procurement of materials from the vendors Observation of TPO The assessee could not furnish adequate evidences to show that these services have been requisition from the AE and the same was rendered by the AE. As per agreement duties and responsibilities of A&S Tianjin is mentioned a. work under the instruction, overall control, guidance and supervision of Pl; b. coordinate the meetings, presentations and participation in conference in case any Pl representatives visit the Territory; No ear- marked space will be reserved for the Pl employees. c. introduce PI to the vendors in the Territory; and d. obtaining feedback (if any) and providing assistance to Pl/vendors in case for handling complaints and issues such as faulty materials, delayed delivery, after sales support (if required by PI) e. promptly notify Pi in writing if A&S TIANJIN become aware of any news or information that can impact the procurement of materials by PI in the Territory. f. Communicate information in relation to the products/ requirements and their specification to the vendors/ PI. Observation of TPO The assessee could not furnish adequate evidences to show that these services have been requisition from the AE and the same was rendered by the AE. As per agreement, the arrangement of fees Article 4 Fees 1. In consideration of A&S TIANJIN providing assistance for procurement of materials in the Territory, PI shall pay to A&S TIANJIN fees at cost plus 5%. The cost for this purpose shall mean salary costs of personnel of A&S TIANJIN involved in providing assistance to Pl together with the necessary overhead expenses A.Y. 2021-22 Portescap India Private Limited incurred on these personnel, travel expense and trade tax payable thereon in China. Annexure to the Agreement Fixed Cost to be reimbursed monthly a. Salaries, Bonus & Social Service benefits of employees working under this agreement. b. Office Rental, Office Supplies, Telephone, Internet, etc. (not exceeding USD 400 per month) for employees working under this agreement. Variable Cost to be reimbursed monthly a. Travel Expense of employees working under this agreement. Expenses other than covered above need to have prior approval from Pl. All the above expenses shall be approved and authorised at Pl.” 4.6 The Ld.TPO rejected the evidences furnished in support of the services rendered by the Chinese AE and also rejected the bench marking of the transaction by aggregating the it with the marketing services. The Ld.TPO was of the view that, assessee has not furnished sufficient evidence to established the receipt of the services in connection with achieving sales target, identifying new customerscollection follow up etc. The Ld.TPO thus, restricted the payment towards the services rendered by Chinese AE at Rs.2,26,33,217/- being 40% of the total payment under any other method as most appropriate method. The Ld.TPO thus proposed an adjustment at Rs. 24,18,73,364/- as under :
Sr. No Transaction Amount in INR 1. Payment of the commission to AE 20,79,23,538/- 2. Services Availed From AE 3,39,49,826/- Total 24,18,73,364/- 5. On receipt of transfer pricing order the Ld.AO passed the draft assessment order on 18/12/2023 proposing to add the adjustment as proposed in order passed u/s.92C(3) of the Act.
A.Y. 2021-22 Portescap India Private Limited On receipt of the draft assessment order assessee filed its objection the before the DRP. 6. The DRP passed its direction on 30/09/2024 by upholding the addition proposed by the Ld.AO/TPO. 6.1 On receipt of the DRP direction, The Ld.AO passed impugned order by making the addition in the hands of the assessee at Rs.2,49,13,09,484/-.
Aggrieved by the order of the Ld.AO the assessee is in appeal before this Tribunal.
At the outset the Ld.AR submitted that, the Ground no.1 raised by the assessee is general in nature and therefore do not require adjudication.
She also submitted that, Ground no.2 raised by the assessee is not pressed at the instructions of the assessee. The Ld.AR has to that effect made endorsement in the grounds of appeal
filed before this Tribunal. Accordingly Ground No.2 raised by the assessee is dismissed as not praised.
9. Ground no. 3 and 4 raised by the assessee is regarding payment made towards services rendered by the Switzerland AE and Chinese AE based on the agreement entered into by assessee. It is submitted that, under the agreements with the two associate enterprises, assessee availed intra group services that was connected with the main activity of manufacturing and therefore were aggregated and bench marked by the assessee by adopting TNMM as most appropriate method, The Ld.TPO accepted all other transactions but segregated the services rendered by the Switzerland AE and Chinese AE.
A.Y. 2021-22 Portescap India Private Limited 9.1 The Ld.AR submitted that, the Ld.TPO did not consider the evidences furnished by the assessee in respect of the rendition of the services, the receipt of services most importantly the benefit derived by the assessee from the service. The Ld.AR vehemently submitted that, the services rendered by the AE were not in the nature of shareholders activity nor was there any duplication. The Ld.AR filed this Tribunal a chart detailing evidences furnished in respect of the communication exchanged with the both the AE’s by the assessee. She also submitted vide submission dated 21/10/2023 that the assessee carried out independent search for the international transaction undertaken with AE’s to establish that assessee still earned high gross margin as compared to the six comparables, shortlisted therein. She placed reliance all submission at page 461-456 of the paper book to support this contention. 9.2 The Ld.AR submitted that, for preceding assessment year identical bench marking was carried by the assessee and no adjustments were made in respect of the commission paid to the AE’s towards the services rendered them. She placed reliance on the observation by the Ld.TPO, wherein the reference was made in respect of the evidences furnished by the assessee towards the services rendered by the AE’s which has been scanned and reproduced herein above. The assessee has also furnished the margins earned by the assessee on year to year basis from assessment year 2015-16 onwards with rise in turnover, as compared to the comparable companies. The comparable margin as well as the increase in the turnover of the assessee in tabulated form scanned and reproduced as under:
9.3 The Ld.AR submitted that, the aggregate approach towards bench marking of the international transaction under the marketing segment was consistently followed by the assessee since 2012-13, which was accepted by the Ld.TPO. She thus submitted that the observation of Ld.TPO in respect of the services rendered by both the AE’s for the year under consideration is factually incorrect. She placed reliance on pages 340-701 wherein the communication with AE’s regarding the services rendered by them, with the employees of the assessee is placed. She submitted that, the commission is paid to the Switzerland AE only upon an effective sale having made by the assessee. 9.4 The Ld.AR thus submitted that, the entire export of product manufactured by the assessee is based on the customers provided by the Switzerland AE and thus the services rendered by the AE stands established. She submitted that, the assessee has only four employees under the sales department who cannot be considered to have undertaken the entire activity of procuring customers outside India in various geographical regions. The Ld.AR submitted as under :
A.Y. 2021-22 Portescap India Private Limited “- PIPL derives more than 90% of its turnover from sales to overseas customers. A perusal of the headcount details as provided in Appendix 1 indicates that PIPL does not have a dedicated sales and marketing staff to undertake export sales. During FY 2020-21, PIPL continued to employ only 4 sales personnel to carry out the functions in India. Further, it can also be seen from the financial statements of PIPL for FY 2020-21, that PIPL has not incurred any selling and marketing expenses. - Your goodself would appreciate that in manufacturing industries, without the right marketing push and promotion, unless the product captures the attention of the intended audience, it may fail. A company may either develop its in-house marketing team or may appoint an outside agency to carry out such functions. Since the benefit arising in either case would be similar, PIPL submits that appointment of overseas agents cannot create disadvantageous tax position for PIPL as compared to the situation when it would have an internal dedicated sales and marketing staff. - By entering into agreement with its AE, PIPL has eliminated unnecessary salary cost, training expenditure, travelling and other compliance related costs which would also affect the pricing of the products. It would be appreciated that sales and marketing efforts require frequent meetings. with various personnel at different locations and are subject matter of negotiations and many times the meetings may not fructify into concrete sales resulting into wasteful expenditure without any corresponding benefit to PIPL - Since majority of the sales are undertaken outside India, it is not possible for PIPL to regularly dispatch its personnel to the various regions considering the time cost involved. The products manufactured by PIPL are specialized products having selected application and highly dependent on the applications wherein they would be utilized. For understanding the customer preferences requires frequent visits to the manufacturing facilities of the customer, interaction with their production staff etc and therefore to appoint sales and marketing staff in India when majority of the customers are overseas would not make commercial sense. - Further even if sales staff were deputed from India, there could be disconnect between the staff and the ultimate customers considering the difference between languages, customs, and cultures of various countries. Also the personnel from India may not be fully apprised on the local conditions in the respective regions and hence may not be able to culminate opportunities into sales. Having the marketing staff closer to the markets, such personnel are apprised about the competitors and the market conditions and would be in more advantageous position to promote the sale of PIPL products abroad. Also having the marketing staff abroad would enable them to interact freely with the customers in the local language and understand their needs and requirements.
A.Y. 2021-22 Portescap India Private Limited - In case PIPL had appointed its own staff, a lot of time and effort would have been spent in building relationships with the customers resulting in loss of market to the customers and reduced sales.” 9.5 In respect of the services received from Chinese AE it is submitted that the AE provides marketing support services and sourcing support to the assessee in relation to books manufactured by assessee. It is submitted that the Chinese AE contacts the customer for general relationship, communicating the potential customer including passing on quotation, provide information to customer etc. it is submitted that vide separate agreement for procurement of materials, the Chinese AE also assists the assessee. She thus submitted that, the aggregation of all these inter point services by adopting TNMM as most appropriate method cannot be rejected without any basis. 9.6 On the contrary, the Ld.DR submitted that aggregation approach adopted by the assessee for all services in the intra group services would be permitted only if the transactions were closely linked to each other and transactions belong to a particular class of transactions. In the absence of similar genre, the Ld.TPO would be justified to benchmark the transactions of payment of management services separately under CUP method regardless of TNMM method adopted for other services received from AE’s. He thus strongly supported the observations of the Ld.TPO and refer to relevant paragraph of the observations.
We have perused the submissions advance by both sides in the light of record placed before us.
A.Y. 2021-22 Portescap India Private Limited 10. Almost all groups will have intra-group services of some kind. Often, the services arise because it is more efficient and economic to centralise certain activities, such as various back-office services such as IT, legal, finance, management, marketing, research and development etc. These services are typically carried out by the parent company or by a group service centre or by a head office. Some countries have specific legislation, regulations or guidelines on this, but in most cases many rely on the guidance included in the OECD Transfer Pricing Guidelines. 10.1. The transfer pricing benchmarking analysis of intra- company services if one of the most complex areas of Transfer Pricing regulations in India. The lack of guidance in Indian TP regulations further adds up to the confusion. For an intra-group service fee to be arm's length, the assessee must be able to prove with verifiable evidence that the assessee received the services against which a service charge is paid. The service in question should provide the related party with economic or commercial value that enhances its commercial position. One of the tests that one can make is to determine whether a third party would be willing to pay for the same service that the related party has received. If the answer is no, then the service should generally not be considered as an intra-group service under the arm’s length principle. 10.2. Once the evidence of the AE rendering similar services to independent parties are available, the direct method (where associated enterprises receiving the service are charged directly for that service) will be the most preferred method. If, however, it is difficult to apply direct method (because the same service is A.Y. 2021-22 Portescap India Private Limited not provided to a third party), then the indirect method should be used. The indirect method is based on an apportionment amongst various associated enterprises which rely on estimation and allocation of costs.
Be that as it may, it is noted that, the Ld.TPO observed that no proof of receipt of services has been furnished by the assesse. test. The Ld.TPO further segregated the transactions and benchmarked it separately. In our considered opinion, the Ld.TPO was justified in segregating the international transaction of intra group services from the other transactions as they are not interlinked with each other. In the transfer pricing provisions, every year is separate and the international transaction is to be analysed independently qua the year. We therefore do not agree with the argument advanced by the Ld.AR on applicability of principle of res judicata.
10.3. We find that the nature of the services rendered by the AE’s are with respect to increase of sales in the respective jurisdictionalso cost locations. We find that based on email submitted before the authorities below, it cannot be said that the arm's-length price of the services would be‘nil’. It is not the case of the Ld.TPO that, the value of the services provided by the AE’s are Nil. However, the documents submitted by the assessee also do not conclusively fulfil the following:
(1) need test, (2) rendition test, (3) benefit test, A.Y. 2021-22 Portescap India Private Limited (4) duplicative test and (5) shareholders activity test. 10.4. Upon reviewing the services, it is evident that some of them have overlapped with these tests. It is also noted that most of the services are low value-adding, and therefore, the focus should be more on the process adopted by the assessee and AE rather than on evaluating evidence such as emails, reports, and other correspondences. However, this does not mean that even in the absence of such details, low value-adding services cannot be tested for their arm's-length price. Furthermore, it is the duty of the assessee to substantiate that the international transaction entered into is at arm's-length.
10.5. In view of this, we set aside this issue back to the file of the learned transfer pricing officer/AO with a direction to the assessee to substantiate all the above five tests before the Ld.AO/TPO and justify that they are at arm's length. The Ld.AO/TPO is directed to verify the claim of the assessee and then determine the arm's-length price of such transaction. Needless to say, that proper opportunity of being heard is to be granted to the assessee.
Accordingly, ground number 3-4 raised by the assesse stands allowed for statistical purposes.
The Ld.AR submitted that,the Ld.AO by computing the taxable income in the hands of the assessee included the disallowance made in the intimation under 143(1)(a) of the Act. It A.Y. 2021-22 Portescap India Private Limited is submitted that, the said disallowance has been allowed by the Ld.CIT(A) in separate proceedings vide order dated 01/07/2024. 11.1. On perusal of records placed before us it is noted that the disallowance made under 143(1a) has been deleted by the Ld. CIT(A). We therefore direct the Ld.AO to take cognizance the same while computing income in the hands of the assessee. Accordingly the Ground no.6 raised by the assessee stands allowed.