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Facts
The assessee, Ariston Group India Private Limited, filed an appeal against the Assessment Order concerning the A.Y. 2020-21. The primary dispute revolves around the transfer pricing adjustment made by the Assessing Officer (AO) and Transfer Pricing Officer (TPO) on management service fees.
Held
The Tribunal held that the TPO and DRP were not justified in treating the value of the international transaction of payment for management services as NIL. It further noted that the assessee had provided documents like emails, invoices, and service agreements to demonstrate the receipt of services. Following a similar ruling by the Mumbai Bench, the Tribunal found that the TPO erred in determining the Arm's Length Price (ALP) as NIL.
Key Issues
Whether the TPO/DRP erred in determining the Arm's Length Price (ALP) of management services as NIL and rejecting the assessee's benchmarking method. Whether the disallowance of management service fee under Section 37(1) was justified.
Sections Cited
143(3), 144C(3), 144B, 92B, 92C, 10AB, 37(1), 270A
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Income Tax Appellate Tribunal, PUNE BENCHES “C” :: PUNE
Before: SHRI R.K.PANDA & SHRI VINAY BHAMORE
per the assessment order, assessee is in the business of trading of water heating equipments and solutions. The assessee’s case was selected for scrutiny. It was observed by the Assessing Officer that assessee has entered into International Transactions as defined u/s.92B of the Act, hence, Assessing Officer made a reference to Transfer Pricing Officer for determination of Arm’s Length Price. The Transfer Pricing Officer(TPO) passed an order u/s.92CA(3) of the Income Tax Act on 25.07.2023. As per Transfer Pricing Order, the assessee has entered into following international transactions : Sr.No. International Transactions Transfer Pricing Total Value of Method Transaction (Amount in INR) 1 Import of finished goods RPM 63,13,54,097 2 Export of finished goods CPM 2,94,25,051 3 Receipt of IT Support TNMM 3,29,66,636 services 4 Receipt of Management TNMM 6,53,65,772 Services 5 Payment of corporate Other method 45,30,771 guarantee fees 6 Reimbursement of expenses Other method 5,83,439 paid 7 Recovery of expenses Other method 22,34,455 8 Outstanding Payable as of TNMM/RPM/OM 42,45,09,675 31 March 2020 4.1 The TPO proposed an adjustment only with reference to Management Service Fees. TPO decided Arm’s Length Price of Management Service Fees at Rs.NIL using other method. The DRP has confirmed TPO’s order.
4.2 The basic allegations of the TPO mentioned in the order are as under : “7.5 With this background, the under signed has scrutinized the evidence submitted by assessee w.r.t. management fees paid. 7.6 It is noteworthy that the documentary evidence for receipt of services provided by assessee is in the form of emails. The same were perused and sample observations are summarized as follows : The submission of the assessee carefully examined. It is observed that the email communications submitted by the assessee are mostly related to the IT Support services only. The e-mail communication referred by the assessee as evidences for receipt of Management Services is primarily regarding the logistics, promotion, supply of material and sales. It is pertinent to mention here that the assessee is mainly engaged in trading and not involved in manufacturing of products in India. Therefore, the AE is required to provide these services as per the e-mails for the efficient coordination of supply chains and logistics. The communication between the employees of the AE and the assessee is regarding the logistics …………. However, the assessee has failed to demonstrate or produce any evidence with regard to the rendering of services for any of the above services mentioned in the agreement. Therefore, the receipt of Management Services as claimed by the assessee is in the form of routine activity by a group to increase its efficiency in sales, promotion activities and logistics rather than rendering of specific support services which is required by the assessee. 7.5 In light of the above discussion it is crystal clear that the assessee has produced documents just for the sake of submission which are insufficient to justify the claims of real benefits being received by the assessee from the services for which management fees has been paid. 7.6 Also, there are email communications wherein information regarding promotional material, defects of the products, introduction of new products, etc. are shared. Such activities are common among group entities functioning in wide geographical segments as the brand image of the group has to be preserved and for that purpose regular visits and interactions take place so as to maintain uniformity and consistency. The assessee is an Indian unit of a large multi-national group and makes use of brand image of the group and carry out its business in India. The purpose of such communications are general and more specifically the kind of management service they are providing is not clear from the email communications submitted by assessee as evidence in support of its claims. Therefore, these submissions in no way can be taken as evidence of need for special services being availed for which management fees has to be paid. Rather, the activities and communications as seen from the submissions are common group information sharing activities and therefore, are more a shareholder activity than a specific service providing additional benefits to the assessee. Thus, it is seen that most of the emails submitted in support of receipt of services are of routine nature and receipt of services commensurate with the amount of service charges paid does not emerge from the evidence in the form of emails. It also does not emerge from the documentary evidence that the services are not in nature of shareholding activity. Further, tangible benefit derived from such services does not emerge from the evidence submitted. Thus, assessee's submission for management fees does not conclusively prove that service was actually rendered. 7.7 The assessee has merely provided a cost allocation working of management fees and it is further seen that the same is for calendar year 2019. Thus, the assessee has not been able to submit the details of costs incurred by AEs for FY under consideration However, assessee was specifically asked to provide justification of allocation key chosen along with evidence. Such rationale of using particular allocation keys has not been submitted by assessee. Thus, allocation of costs has happened whether assessee needed such services or not 7.8. The assessee was also asked to furnish the cost benefit analysis (a) with reference to the cost of the services and benefit received there from and (b) services received from AEs vis-a-vis independent parties. Any independent person would not avail such kind of services unless it is examined as to what is the payment for each and every service and whether the person can avail of such services at a price lower than what is offered by the group companies. Such analysis should have been carried out by the assessee company before entering into any such agreement. Rule 100 (1) (h) ……………….. 7.9. Thus, to summarize, (a) The assessee has not produced any cogent evidence demonstrating receipt of services. Documentation produced by the assessee to support its claim for the receipt of management services is generic. (b) The assessee has not furnished any evidence as to the cost benefit analysis with regard to the independent service provider. No third party would like to avail services without any cost benefit analysis. 7.
As per the comments above, it can be seen that none of the benefits are tangible or real. A mere facade has been raised to give an impression that some vital benefit has passed to the assessee, which is actually not the case. Related parties are quite likely to give a form that will give an impression that a real service is being rendered by one to another But the necessity to look beyond the veil is recognized across tax jurisdictions. In the above circumstances the payment of service fee is only an arrangement to change tax base without any economic substance in the transaction. 7.11. No transfer price can be charged if a subsidiary corporation utilizes services taking into consideration only the circumstances of the parent corporation, and if the subsidiary corporation, considering only its own circumstances, would not have utilized the services had it been as independent enterprises. The services must actually be performed. The mere availability of services within a group is not sufficient since, as a general rule unrelated parties only pay for services which have actually been rendered. However, where the volume of services fluctuates there is no objection on average amount of remuneration charged which corresponds to the services actually rendered over a period of years. 7.12. Thus, benchmarking done by the assessee is not in accordance with the law therefore the transaction is to be considered as an independent transaction for the purpose of benchmarking. As per Rule 10AB, the determination of ALP in relation to international transaction shall be the price which has been charged or would have been charged or paid, for the same or similar uncontrolled transaction, with or between non-associated enterprises, under similar circumstances, considering all the relevant facts. 7.13. Therefore, as stated in above paras and in the assessee's case, there occurs no benefit to the assessee for the price which has been charged. Therefore for the similar uncontrolled transactions with or between non-associated enterprises, under similar circumstances, the price will be definitely zero. Thus, ALP for the management services fee will be zero using Other Method specified under Rule 10AB of the Income Tax Rules.
………………. 7.16. Clarification regarding the benefit test: (a) For the determination of ALP of Intra Group Services, the assessee has to demonstrate that the services were not only rendered by the AE but also that the assessee had paid charges as per the arm's length. Now, the test to decide whether chargeable intra-group services have been provided under the arm's length principle is whether the activity is one for which the independent enterprise would have been willing to pay or perform itself. The independent enterprise would never pay for any service from which it does not benefit Hence, the Benefit Test determines whether the associate enterprise derives any benefit from the payment of service charges and is essential part of determination of arm's length principle. It does not question the need or necessity of incurring the expenditure but only seeks to determine the price to be paid for services in uncontrolled situations by carrying out cost-benefit analysis. ……………………. 7.17 Thus, in the present case, assessee has not demonstrated the receipt of services and tangible benefit derived from such services. The assessee has also not been able to prove that benefit derived is commensurate with payments made or that the payments are at arm's length. The nature of services as per the submission clearly indicates that these are more to benefit of Aniston Thermo Group to have complete data on subsidianes or control purposes. It does not quantify the benefit received by the assessee from the services.”
The DRP has upheld the order of the TPO and relevant paragraph of the order of the DRP is as under : “10.4 Further Discussion of the DRP: The applicant has not been able to demonstrate what actual services has been delivered by the AE. Email correspondences are not a proof of any service, they are just correspondences between two parties which in imperative in a group company Actual service in the form of some actual work, research, or any such technical service etc. from which some benefit would have accrued to the assessee has not been produced.
For the determination of ALP of Intra Group Services, the assessee has to demonstrate that the services were not only rendered by the AE but also that the assessee had paid charges as per the arm's length. Now, the test to decide whether chargeable intragroup services have been provided under the arm's length principle is whether the activity is one for which the independent enterprise would have been willing to pay or perform itself. The independent enterprise would never pay for any service from which it does not benefit. Hence, the 'Benefit Test' determines whether the associate enterprise derives any benefit from the payment of service charges and is essential part of determination of arm's length principle. It does not question the need or necessity of incurring the expenditure but only seeks to determine the price to be paid for services in uncontrolled situations by carrying out cost-benefit analysis.”
Aggrieved by the order of the TPO/DRP/AO, the Assessee has filed appeal before this Tribunal. We have already reproduced the relevant paragraphs of the Transfer Pricing Officer’s Order and DRP’s Order. The main contention of the TPO/DRP is that assessee has not demonstrated that the services have been availed. However, the TPO has accepted that Assessee had filed copies of Emails, copies of Invoices, copy of Agreement. Thus, on one hand, TPO says that no documents were provided, whereas on the other hand, TPO accepts that copies of Emails and Invoices were submitted. Thus, TPO is contradicting his own statements. Be it as it may be, we have perused the copies of the Emails submitted by assessee to prove receipt of management services. Sample Emails are reproduced as under :
The sample emails are from page no.257 to 360 of the paper book. The assessee has also provided Cost Allocation of Management Fees which is at page no.228 to 252. Scan copy of page 228 is reproduced as under :
Assessee has also filed copies of the service agreement which is at page no.208 to 227. Assessee has also provided copies of the Invoices. These documents clearly establish the receipt of management services by the assessee.
8.1 Thus, assessee has provided necessary documents before the TPO & DRP to demonstrate receipt of Management Services and its Costing. The same documents were also filed before us. The TPO/DRP has not brought on record any defect in these documents. The TPO has merely rejected the Emails stating that Emails do not prove receipt of services. However, TPO has not specified any specific document which he wanted the Assessee to file. Thus, TPO is neither specifying documents which according to him will prove receipt of services, nor accepting the documents filed by the assessee. TPO has also alleged that providing these services is in the form of shareholder activity. However, TPO has not brought on record any evidence or comparable to demonstrate that its a shareholder activity. As per the service agreement, the assessee is paying cost (+) 5% to the AE for these services. The TPO has not specified the so-called “Other Method” used by him to arrive at Arm’s Length Price at Rs.NIL.
We find an identical issue has been decided by the Mumbai Bench of the Tribunal in the case of M/s.Sulzer Tech India Pvt. Ltd., vs. Addl./Jt./Dy./Asst. Commissioner of Income Tax in vide order dated 25.07.2022 by holding as under : “21. Further, the lower authorities claimed to have adopted ‘other method’ by applying need, benefit and evidence test for considering the arm’s length price of this transaction to be NIL. In this regard it is pertinent to note that the provisions of Rule 10AB of the Income Tax Rules, 1962, which provides as under:
“10AB. For the purposes of clause (f) of sub-section (1) of section 92C, the other method for determination of the arm's length price in relation to an international transaction or a specified domestic transaction shall be any method which takes into account the price which has been charged or paid, or would have been charged or paid, for the same or similar uncontrolled transaction, with or between non-associated enterprises, under similar circumstances, considering all the relevant facts.”
Thus, as per the provisions of aforesaid Rule, the ‘other method’ shall be the method which takes into account the price which has been or would have been charged or paid for the same or similar uncontrolled transaction between non-associated enterprises. However, in the present case, the lower authorities without searching for similar uncontrolled transaction between non-associated enterprises, straightaway treated the value of the international transaction to be at NIL. In this regard, it is relevant to note following observations of Hon’ble Delhi High Court in Cushman and Wakefield (India) Pvt. Ltd., [2014] 367 ITR 730 (Del.):
“35. The TPO's Report is, subsequent to the Finance Act 2007. binding on the AO. Thus, it becomes all the more important to clarify the extent of the TPO's authority in this case, which is to determining the ALP for international transactions referred to him or her by the AO, rather than determining whether such services exist or benefits have accrued. That exercise of factual verification is retained by the AO under Section 37 in this case. Indeed, this is not to say that the TPO cannot-after a consideration of the facts-state that the ALP is 'nil' given that an independent entity in a comparable transaction would not pay any amount. However, this is different from the TPO stating that the assessee did not benefit from these services, which amounts to disallowing expenditure.”
As noted above, in the present case, no search was conducted to find out the independent entity in a comparable transaction and the arm’s length price of the international transaction was treated to be NIL. In the present case, no doubts about payments made by the assessee have been raised by the Assessing Officer under section 37 of the Act. Further, accrual of benefit to assessee or the commercial expediency of any expenditure incurred by the assessee cannot be the basis for disallowing the same, as held by Hon’ble Delhi High Court in the case of EKL Appliances Ltd. [2012] 345 ITR 241 (Del.).
We further find that Hon’ble jurisdictional High Court in CIT v/s Lever India Exports Ltd. [2017] 246 Taxmann 133 (Bom.), observed as under: “7. We note that the Tribunal has recorded the fact that the respondent assessee has launched new products which involved huge advertisement expenditure. The sharing of such expenditure by the respondent assessee is a strates to develop its business. This results in improving the brand image of the products, resulting in higher profit to the respondent assessee due to higher sales Further, it must be emphasized that the TPO's jurisdiction was to only determine the ALP of an International Transaction. In the above view, the TPO has to examine whether or not the method adopted to determine the ALP is the most appropriate and also whether the comparables selected are appropriate or not. It is not part of the TPO's jurisdiction to consider whether or not the expenditure which has been incurred by the respondent assessee passed the test of Section 37 of the Act and/or genuineness of the expenditure. This exercise has to be done, if at all, by the Assessing Officer in exercise of his jurisdiction to determine the income of the assessee in accordance with the Act. In the present case, the Assessing Officer has not disallowed the expenditure but only adopted the TPO's determination of ALP of the advertisement expenses. Therefore, the issue for examination in this appeal is only the issue of ALP as determined by the TPO in respect of advertisement expenses. The jurisdiction of the TPO is specific. and limited le. to determine the ALP of an International Transaction in terms of Chapter X of the Act read with Rule 10A to 10E of the Income Tax Rules. The determination of the ALP by the respondent assessee of its advertisement expenses has not been disputed on the parameters set out in Chapter X of the Act and the relevant Rules. In fact, as found both by the CIT (A) as well as the Tribunal that neither the method selected as the most appropriate method to determine the ALP is challenged nor the comparables taken by the respondent assessee is challenged by the TPO. Therefore, the ad-hoc determination of ALP by the TPO dehors Section 92C of the Act cannot be sustained.”
In view of the above, we are of the considered opinion that TPO as well as learned DRP were not justified in treating the value of international transaction of ‘Payment of Corporate IT Support Services’ to be NIL, in the present case. Accordingly, ground No. 2, including grounds no. 2.1 to 2.3, raised in assessee’s appeal are allowed.”
10. Since the facts in the case of assessee and in the case of M/s.Sulzer Tech India Pvt. Ltd., (supra) are identical, therefore, respectfully following the decision of ITAT Mumbai, we hold that TPO has erred in determining Arm’s Length Price of Management Services at Rs.NIL. Accordingly, the AO is directed to delete the addition of Rs.6,53,65,772/-. Hence, Ground No.3, 4 and 5 raised by the assessee are allowed.
Ground No.6 : 11. The DRP has also invoked Section 37 to disallow management service fee, DRP in our opinion has alleged that there has been no evidence of actual receipt of the services by the assessee. However, in our earlier paragraph, we have at length discussed the documents filed by the assessee to demonstrate the receipt of the services. Therefore, DRP in our opinion has erred in invoking Section 37 of the Act. However, in the final assessment order, the Assessing Officer has not specifically invoked the Section 37 of the Act. Therefore, Ground No.6 is not emanating from the Assessment Order.
Ground No.7 is regarding initiation of penalty. This ground is premature, hence, dismissed.
Ground No.1 and 2 are general in nature and does not need any specific adjudication, hence, dismissed as not adjudicated.
In the result, appeal of the assessee is partly allowed. Order pronounced in the open Court on 9th April, 2025.