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Facts
The assessee company filed its return of income for AY 2021-22 declaring a total income of Rs. 9,78,20,290. The case was selected for scrutiny, and during the assessment, the TPO proposed an adjustment of Rs. 12,49,16,249 regarding the trading segment, later reduced to Rs. 11,57,97,707. Subsequently, this adjustment was reduced to Nil under Section 154. Another adjustment of Rs. 2,57,67,740 was proposed concerning commission expenses.
Held
The Tribunal held that the initial transfer pricing adjustment of Rs. 11,57,97,707 was reduced to Nil, making grounds related to it infructuous. Regarding the commission expense adjustment of Rs. 2,57,67,740, the Tribunal found it unjustified because it was made without proper verification, relied on comparing controlled transactions with other controlled transactions (instead of uncontrolled ones), and was made without providing the assessee an opportunity to be heard. The Tribunal also directed verification of interest under sections 234A, 234B, and 234C.
Key Issues
Whether the transfer pricing adjustment and the adjustment on account of commission expenses were justified, and whether interest and penalty levies were correctly applied.
Sections Cited
143(3), 144C(13), 144B, 144C(8), 92CA(3), 144C, 154, 234A, 234B, 234C, 270A, 92C, 92F(ii), 92
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, DELHI BENCH, H: NEW DELHI
Before: YOGESH KUMAR U.S. & SHRI BRAJESH KUMAR SINGH
This appeal has been preferred by the assessee against the Final Assessment Order dated 23.10.2024 passed by the Assessing Officer (AO) under Section 143(3) read with Sections 144C(13), r.w.s. 144B of the Income-tax Act, 1961 (“the Act”),
ITA No.-5286/Del/2024 Honda Trading Corpora�on India Pvt. Ltd. pursuant to the directions of the Hon'ble Dispute Resolution Panel (DRP) dated 25.09.2024 for the Assessment Year 2021-22.
1.1 Ground no. 1 and 2 of the appeal are reproduced as under:
“1. Impugned order is time barred, invalid and bad in law as reference made to Ld. TPO does not appear to be in accordance with law. 2. Impugned order is bad in law as it is based in invalid and unlawful directions of Ld. DRP, contrary to section 144 C(8).
1.2 In view of the discussion made later in this order, the above grounds of appeal become academic in this appeal and are left open in this case.
Brief facts of the case : M/s Honda Trading Corporation India Private Limited (hereinafter referred to as "the assessee") filed its return of income for AY 2021-22 on 10/02/2022 declaring total income of Rs. 9,78,20,290/- vide Acknowledgement Number 156162270100222 The case was selected for Complete Scrutiny through CASS. Accordingly, notice u/s 143(2) of the Income-tax Act, 1961 vide DIN: ITBA/AST/S/143(2)/2022- 23/1043607153(1) was issued upon the assessee on 28/06/2022 by the National Faceless Assessment Centre. In response to the notice the assessee company made its submission on 12/07/2022. The assessee submitted copy of computation of income, copy of ITR, copy of Form 3CB & 3CD for AY 2021-22, copy of Form 3CEB, copies of Balance sheet/statement of affairs along with detailed schedules etc. 2 ITA No.-5286/Del/2024 Honda Trading Corpora�on India Pvt. Ltd.
During the year, the assessee company was primarily engaged in the business of trading activities. The principal items traded were steel automotive parts and automotive coils, equipment and the company was also engaged in providing business auxiliary services to its parent company and other companies on which service/commission income has been earned. The trading activities and service activities were carried out both in India and in international markets.
3.1 The AO noted that some of the issues / reasons for selection of scrutiny are TP risk Parameter, and therefore, the case was referred by the AO to TPO on 02.08.2022.
3.2 The TPO proposed an adjustment of Rs. 12,49,16,249/- relating to trading segment of the assessee vide order of 92CA(3) of the Act, dated 31/10/2023, which was reduced to Rs. 11,57,97,707/- vide order dated 14/10/2024 while giving effect to the direction of the DRP u/s 144C of the Act dated 25.09.2024.
3.3 Aggrieved with the said adjustment the assessee is in appeal before us, on the following grounds of appeal:
3. Impugned order has erred in assessing total income of Appellant for relevant AY at INR 23,93,85,737/- (including an addition of INR 14,15,65,447/- on account of transfer pricing issues) as against returned income of INR 9,78,20,290/-. Ground specific to transfer pricing adjustments 4. Impugned order erred in making the transfer pricing adjustment amounting to INR 11,57,97,707 pertaining to alleged trading segment whereas the Appellant's 3 ITA No.-5286/Del/2024 Honda Trading Corpora�on India Pvt. Ltd. operating margin falls within the arm's length range computed by the Ld. TPO himself.
5. Impugned order erred in law in determining price of impugned international transactions although circumstances necessitating fresh determination of price by Ld. TPO as required in sub-section (3) of section 92C did not exist.
6. Impugned order erred in rejecting scientific analysis carried out by Appellant consistent with the Indian transfer pricing regulations prescribed under the Income Tax Act, 1961 and Income Tax Rules, 1962.
7. Impugned order erred on facts and in law in not accepting the economic analysis conducted by the Assessee in accordance with the provisions of the Act read with the Rules and modifying the economic analysis for the determination of the ALP in connection with the transactions undertaken by the Assessee in reference to trading activity and thereby making the impugned adjustment.
8. Impugned order erred on facts and in law by accepting functionally dis-similar companies i.e. Durga Automotives Pvt. Ltd., as comparable to Appellant and failed to undertake appropriate functional analysis of comparables vis-à-vis Appellant: 9. The Ld. TPO / AO grossly erred by considering following inappropriate filters, for the purpose of arm's length evaluation and making the impugned adjustment: Reject companies having turnover less than one crore; and Reject companies with different accounting year end.
10. Impugned order erred in not considering use of contemporaneous data and thereby accepting companies as comparable for which the financial data was not available with the Assessee at the time of preparation of transfer pricing documentation.
11. Impugned order erred in not making appropriate adjustments to account for differences in working capital employed by the Assessee vis-à-vis the comparables and in the process also ignored the provisions of the Indian transfer pricing regulations and judicial pronouncements on this subject.
12. Impugned order erred in calculating the median of comparable data set and thereby calculating the amount of adjustment by considering such incorrect median.
13. Impugned order erred grossly in using incorrect net margins of comparable companies for making adjustment without sharing details with the Appellant.
14. Without prejudice impugned order grossly erred in computing adjustment without appropriately restricting it into correct proportion of international transaction.
15. The impugned order is erroneous as the Ld. TPO has undertaken an opaque analysis for which no details such as search methodology adopted, keywords used, 4
ITA No.-5286/Del/2024 Honda Trading Corpora�on India Pvt. Ltd. criterions of selection / rejection of companies, number of companies rejected by way of applying various filters etc., not shared with the Appellant and hence being passed without providing the Appellant sufficient opportunity to present its case.
3.4 However, the said adjustment of Rs. 11,57,97,707/- was reduced to Nil vide order u/s 154 of the Act, dated 26/12/2024. (Placed at page no. 60 to 64 of the paper book). The relevant extract of the said order is reproduced as under:
“ 6.1 Adjustment of INR 11,57,97,707 on account of trading activity: "The assessee has submitted that the adjustment of INR 11,57,97,707 to its impugned international transaction pertaining to trading segment is mistakenly calculated. Since, the operating margin (on revenue) of 1.65% earned by the assessee from trading activity falls within the arm's length range (35th percentile - 1.41% & 65th percentile - 3.82%) calculated as per order dated 14.10.2024. Hence, no adjustment is warranted in case of the assessee with respect to trading activity". This contention of assessee is examined and found correct. The margin of assessee i.e. 1.65% which falls within the arm's length range of 1.41% to 3.82% finally computed after giving Delhi. Hence, no adjustment is proposed on this effect to the directions of Hon'ble DRP-1, New Delhi. issue.”
3.5 In view of the adjustment of Rs. 11,57,97,707/- getting reduced to NIL, the ground nos. 4 to 15 of the appeal and ground no. 3 of the appeal to the extent of addition of Rs. 11,57,97,707/- becomes infructuous and are dismissed as infructuous.
3.6 However, in the direction’s u/s 144C of the Act, dated 25.09.2024 the DRP in para no. 4 and 5 had observed as under:
ITA No.-5286/Del/2024 Honda Trading Corpora�on India Pvt. Ltd. “4. A Note is taken of the trading transactions of the assessee –
1 Import of parts and products for resale 5,04,08,43,910 2 Export of parts and products 1,76,83,47,582 3 Receipt of commission 2,95,83,014 4 Payment of commission 3,62,00,991
5. It is observed that the commission received is about Rs. 2.95 Cr on sales on 504 Cr whereas commission paid is about Rs. 3.62Cr on export of about Rs. 176 Cr. the commission paid is at a much higher percentage than is received. TPO is directed to verify this aspect or the transaction also Without making further enquires with assessee in view of section 144C(13) quoted below - "(3)Upon receipt of the directions issued under sub-section (5)_the Assessing Officer shall, in conformity with the directions, complete, notwithstanding anything to the contrary contained in section 153. the assessment without providing any further opportunity of being heard to the assessee, within one month from the end of the month in which such direction is received."
3.7 The same was discussed by the TPO in his order giving effect dated 14/10/2024 to the direction u/s 144C of the Act of the DRP and the TPO made an adjustment Rs 2,57,67,740/-. The relevant discussion by the TPO is reproduced as under:
“ 5.5- reference to the TPO The Hon’ble DRP has stated in page 9 of its order on the difference in commission received / paid on import / export by the assessee that : 5. It is observed that the commission received is about Rs. 2.95 Cr on sales on 504 Cr whereas commission paid is about Rs. 3.62Cr on export of about Rs. 176 Cr. the commission paid is at a much higher percentage than is received. TPO is directed to verify this aspect or the transaction also Without making further enquires with assessee in view of section 144C(13) quoted below
ITA No.-5286/Del/2024 Honda Trading Corpora�on India Pvt. Ltd.
Comment of the TPO The direction of the Hon’ble DRP have been perused in this regard. On careful examination of the financial facts of the case and in pursuance of the DRP directions, it comes to notice that the assessee has entered into the following trading transactions w.r.t. Sl. Paramete Transaction Commission %age of No. rs Amount Received/Pa Commission id Received/Pa id 1 Imports of 5,04,08,43,9 2,95,83,0 0.59% . parts and 10 14 products for resale (A) 2 Export of 1,76,83,47,5 3,62,00,991 2.05% . parts and 82 products (B)
Thus, following the direction of the Hon’ble DRP, it comes to notice that the commission paid (2.05%) is at much higher percentage as compared to the percentage of commission received (0.59%) as depicted in the table above. Thus, following the pro-rata basis, an adjustment is being made for the differential (excess) amount of commission paid in comparison to commission received. The computation of the same is as under. Particulars Amount Export of Parts and products (A) 1,76,83,47,582 Commission amount (as per pro-rata basis 1,04,33,251/- w.r.t. commission received @ 0.59%) (B) Commission received © 3,62,00,991/- Adjustment made (C-B) 2,57,67,740/-
“
Aggrieved with the said order, the assessee is in appeal before us on the following grounds of appeal:
“16. Impugned order erred in making the adjustment amounting to INR 2,57,67,740 on account of international transaction pertaining to commission paid basis flawed 7
ITA No.-5286/Del/2024 Honda Trading Corpora�on India Pvt. Ltd. understanding of the nature and arrangement of the transactions relating to commission received and commission paid. 16.1 The impugned order is bad in law as the impugned adjustment is made by the Ld. TPО without providing the Appellant an opportunity of being heard, thereby violating the principles of natural justice. 16.2 The impugned order is flawed as the Hon'ble DRP's directions for verifying commission transactions are unclear and lack necessary context, leading to Ld. TPO passing the order with irrational conclusions, thereby making the impugned adjustment. 16.3 The impugned order is legally untenable as the Ld. TPO made an adjustment disregarding the fundamental principles of transfer pricing, by inappropriately comparing the transactions of commission paid and received by the Appellant with the AE(s). 16.4 The impugned order is bad in law, resulting in economic double taxation, as the transactions pertaining to commission received and paid are already included in the total international transaction value used to calculate the impugned adjustment for the alleged trading segment. “
Subsequent to the filing of the present appeal by the assessee on 19.11.2024, an order u/s 154 dated 26.12.2024 was passed by the AO, wherein the submissions made by the assessee in its rectification application dated 19.11.2024 inter-alia on the issue of adjustment of Rs. 2,57,67,740/- was dealt as under:
"6.2 Adjustment of INR 2,57,67,740/- on account of commission expenses (trading segment) The assessee has submitted that a separate adjustment on account of commission expenses has been made by the TPO in the order dated 14.10.2024. The said adjustment is made in the effect order without verifying and appreciating the fact that there is no co-relation between the transaction of commission expense with export of goods and of commission received with import of goods". This contention of assessee is examined and found incorrect. On careful examination of the available records and facts of the case, it may be noted that the adjustment in present case on the issue of 'commission expenses' has been made in pursuance of the directions of the Hon'ble DRP issued vide order dated 25.09.2024. The detailed speaking order with regard to the adjustment made on this issue forms part of the order giving effect dated 14.10.2024.
ITA No.-5286/Del/2024 Honda Trading Corpora�on India Pvt. Ltd. Further, it may be noted that the directions of the Hon'ble DRP are binding on TPO. In view of the same, there is no mistake apparent from record and thus, no rectification is warranted on this issue considering the facts and merits of the case.”
In view of the above, the total adjustment made after rectification under section 154, is tabulated as under: Sr. Noj. Nature of Pursuant to Pursuant to International DRP order rectification Transaction (Rs.) U/s 154 (Rs.) 1 Commission 2,57,67,740 2,57,67,740 Expenses 2 Trading 11,57,97,707 Nil Segment Total 14,15,65,447 2,57,67,740
During the hearing before us, the Ld. AR filed a written submission. The relevant extract of the same is reproduced as under:
DRP's directions are invalid being in violation of section 144C(8) of the Act inasmuch as the same failed to properly adjudicate upon the issue of ALP determination of transaction of commission paid by Appellant. Instead, in gross violation of section 144C(8) which provides that "The Dispute Resolution Panel may confirm, reduce or enhance the variations proposed in the draft order so, however, that it shall not set aside any proposed variation or issue any direction under sub-section (5) for further enquiry and passing of the assessment order", DRP in present case proceeded to direct TPO vaguely "to verify this aspect of the transaction also without making further enquiries". WITHOUT PREJUDICE TO ABOVE, COMPARISON OF TWO CONTROLLED TRANSACTIONS IS VIOLATIVE OF CHAPTER X OF THE ACT 10. As stated above, the Appellant had entered into two international transactions for payment and receipt of commission with its AEs a. Controlled transaction A-Receipt of commission of ₹ 2.95.83,014/- from AEs ie, 0.50% of imports of ₹ 5,04,08,43,910/- b. Controlled transaction B-Payment of commission of ₹ 3,62.00,991/- to AEs le., 2.05% of exports of ₹ 1,76.83,47,562/- 11. Under Chapter X of the Act, section 92 requires that an income arising from an international transaction shall be computed having regard to the arm's length price. Section 92F(ii) defines "arm's length price to mean "a price which is applied or proposed 9 ITA No.-5286/Del/2024 Honda Trading Corpora�on India Pvt. Ltd. to be applied in a transaction between persons other than associated enterprises, in uncontrolled conditions" (emphasis supplied by us). Thus, for a price to treated as ALP, the same must be derived from transaction: a. Entered between persons other than AEs, and b. Conducted in uncontrolled conditions.
As stated in the preceding paragraphs, TPO has considered the commission received as ALP for benchmarking the commission paid by the Appellant. The same is not permissible as commission received is: a. Neither entered between persons other than AES, b. Nor concluded in uncontrolled conditions.
In support of the above, the Appellant places reliance on Paras 54 to 56 of Hon'ble Third Member's decision in Addl. CIT v. Tecnimont ICB India P. Ltd., (2013) 21 ITR (Trib) 267. A copy of the Order is attached herewith this submission for ease of reference.
A similar view has also been taken by Delhi Bench of Hon'ble Tribunal in Coim India (P.) Ltd. vs. Assistant Commissioner of Income Tax, Special Range-2, New Delhi (2018) 96 taxmann.com 511 (Delhi-Trib.), wherein the Hon'ble Tribunal held that: “15. Insofar as the commission earned amounting to Rs. 1.99 crores is concerned, we find that in the earlier years, the rate of commission was 2% which came down to 1% from 2008. This means that since 2008 and upto 2012, the Revenue has accepted the charging of commission 1%. It is only in this year the Revenue has changed its stand and questioned the rate of commission @ 1% and changed it to 4%. This shows that the TPO has compared the rate of commission charged by the assessee with the rate of commission charged by the assessee to its other AEs. This is clearly barred by the provisions of section 92F(ii) r.w.s. 92 of the Act. What the TPO has done is he has compared controlled transaction with other controlled transaction whereas he should have compared the controlled transaction with other uncontrolled transactions. In our considered opinion, the action of the Assessing Officer is not as per the provisions of law because section 92F(ii) defines ALP as a price which is applied or proposed to be applied in a transaction between persons other than associated enterprises in uncontrolled conditions. Considering the facts of the case in totality and in the light of the decision of the Hon'ble Jurisdictional High of Delhi (supra) we do not find any merit in the adjustments made by the TPO/DRP. We, therefore, set aside the findings of the DRP and direct the Assessing Officer to delete the addition on account of adjustments determined by the TPO and treated as cumulative adjustment u/s. 92CA of the Act amounting to Rs. 5,62,52,600/-.” It is pertinent to note that above decision of Hon'ble Tribunal has been upheld by Hon'ble jurisdictional High Court in Principal Commissioner of Income-tax vs. Coim India (P.) Ltd. [2024] 160 taxmann.com 756 (Delhi) in its order dated 19.02.2024: 6. ………..It has also been found on facts that the TPO has compared controlled transactions with other controlled transactions, losing sight of the imperative of the comparison being made with "uncontrolled transactions". It has thus found that the 10 ITA No.-5286/Del/2024 Honda Trading Corpora�on India Pvt. Ltd. direction as framed would clearly be contrary to Section 92F(ii) of the Act and which mandates that ALP would be the price identified for a "transaction between persons other than associated enterprises in uncontrolled conditions"
7. It is on a cumulative consideration of the aforesaid aspects that the additions have come to be annulled. The view as taken by the ITAT cannot possibly be faulted.
8. The appeals fail to raise any substantial question of law They shall consequently stand dismissed." A copy of the above judgments is attached herewith this submission for ease of reference.
At this juncture Appellant would also like to state that it is a settled law that the Revenue cannot be permitted a second inning, and no remand can be ordered merely to allow the AO/TPO to fill up the lacunae or shortcomings in the original assessment. Reliance in this regard is placed on Rajesh Babubhai Damania vs. Income-tax Officer, [2001] 251 ITR 541 (Gujarat). The same would also amount to artificial extension by Hon'ble Tribunal of timelines mandated under the Act for completion of assessment. A copy of the judgment is attached herewith this submission for ease of reference.
Thus, the TPO's actions of making downward adjustment of 2,57,67,740/- in relation to commission paid by Appellant to its AE by comparing the same with percentage of commission received on imports by Appellant from AE, is illegal and violative of the provisions of the Act. Consequently, the adjustment of Rs. 2,57,67,740/- deserves to be deleted.”
7. The Ld. CIT(DR) relied upon the order of the authorities below.
We have heard both the parties and perused the material available on record. As noted above, the adjustment of Rs. 2,57,67,740/- on account of differential in the rate of commission received / paid on account of ‘Import of parts and products for resale’ and ‘Export of parts and products’ was not made by the AO in the draft assessment order u/s 144C of the Act, dated 11.12.2023. The same was done by the TPO in the order giving effect dated 14.10.2024 to the directions of the DRP u/s 144C of the Act dated 25.09.2024. Consequent, thereupon, the same was done by the AO
ITA No.-5286/Del/2024 Honda Trading Corpora�on India Pvt. Ltd. in the final assessment order dated 23.10.2024 in this case. Thus, the assessee was not provided any opportunity, before making this adjustment. Further, the TPO / AO as referred above in their respective order as referred made additions on an ad hoc basis applying a thumb rule without bringing on record any material to dispute about the said differential in the said commission paid / received. Moreover, we also observe that while doing so the TPO has considered the commission received as ALP for benchmarking the commission paid by the assessee which is not permissible as in the present case, the commission received is neither entered between persons other than AEs nor concluded in uncontrolled conditions as held by the Hon’ble Delhi High Court in the case of Principal Commissioner of Income-tax vs. Coim India (P) Ltd. (supra) relied upon by the assessee.
8.1 In view of the facts and the judicial position, we are of the considered view that the addition of Rs. 2,57,67,740/- is not justified and the same is deleted. Ground no. 16 to 16.1 and ground no. 3 of the appeal to the extent of addition of Rs. 2,57, 67,740/- of assessee allowed.
9. Ground nos. 17 to 19 are reproduced as under: “ Consequential grounds 17. Impugned order erred in levying interest amounting to INR 10,54,107 under section 234A of the Act. 18. Impugned order erred in levying consequential interest amounting to INR 1,51,08,867 under section 234B of the Act.
ITA No.-5286/Del/2024 Honda Trading Corpora�on India Pvt. Ltd. 19. Without prejudice, the impugned order erred in totalling the amount of interest and fee payable i.e. the sum total of interest levied under section 234A, 234B and 234C of the Act.”
9.1 In this regard, the assessee submitted as under:
“. It is also prayed that interest liability imposed under section 234B and 234C and penalty proceedings initiated under section 270A in the impugned final assessment order may kindly be deleted, being consequential in nature. Further, in relation to interest liability imposed under section 234A of the Act, it is humbly submitted that the return of income was filed by the Appellant within time on 10.02.2022 since the last date of filing of return was extended to 15th March 2022 vide Circular No. 1/2022, dated 11.01.2022 after being extended earlier to 31 December 2021 and 28th February 2022 by Circular No.9/2021 dated 20.05.2021 and Circular No. 17/2021 dated 09.09.2021 respectively.
9.2 The above grounds regarding charging of interest u/s 234B and 234C are consequential in nature. The AO is directed to verify and charge interest as per law after giving effect to this order. As regards, the levy of interest u/s 234A of the Act, the AO is directed to verify the correct position regarding the due date of the filing of the return and take necessary action as per law. Ground nos. 17 to 19 are partly allowed.
Ground no. 20 of the appeal is reproduced as under:
“ 20. That the Learned AO has erred in initiating penalty proceedings under section 270A of the Act. “ 9.1 This ground of appeal is premature and hence dismissed.
ITA No.-5286/Del/2024 Honda Trading Corpora�on India Pvt. Ltd. 10. In the result, the appeal of the assessee is partly allowed.
Order pronounced in the open court on 4th February, 2026.