51 FAQs on Advance Pricing Agreements (APAs) in India

Introduction: Advance Pricing Agreements (APAs) are a crucial aspect of tax regulations in India. They offer a structured framework for determining transfer pricing to minimize disputes and provide certainty for taxpayers engaging in international transactions with associated entities. In this comprehensive guide, we will explore 51 frequently asked questions about APAs in India, covering their special features, application process, annual compliances, revision, and more.

(A) Special Features of Advance Pricing Agreement (APA) in India

 1. Meaning for background for APA

(i) of India (Govt.) observed that litigations (already) increased due to use of Transfer Pricing (TP) regulations based on Arm Length Price (ALP) introduced through Finance Act, 2001

(ii) introduced APA through finance Act, 2012 inserting new provisions under section 92CC + 92CD of Income Tax Act (ITA) 1961 + also rules 10F + 10G + 44GA of Income Tax Rules (ITR) 1962 (all) for minimizing litigations between income tax (revenue) deptt. and taxpayer

 2. Meaning for introduction for APA

(ii) APA (arrangement) permitted for determining Arm Length Price (ALP) in advance for controlled international transactions with Associate Entity (AE) + also for fixed period (both) simultaneously

(ii) APA to be made between CBDT (on behalf of Govt. of India) and taxpayer for (international) transactions with AE

(iii) APA not permitted for determining ALP for (domestic) transactions with AE

(iv)APA permitted for 5 (future’s) year’s transactions with AE

+ (plus)

(v) Also APA permitted for 4 (preceding) year’s transactions with AE under roll-back provisions mechanism

+ (plus)

(vi) Also taxpayer + APA team (on behalf of CBDT) both mutually agreeing for Transfer Pricing Methodology (TPM) to be applied for maximum 5 year for controlled transactions with AE after fulfilment of critical assumptions.

+ (plus)

(vii) Also APA being used (outside India) for determining TP for transactions with AE to avoid future’s disputes with Income tax (revenue) deptt.

 3. Meaning for filing of application with DGIT or Competent Authority (any)

(i) Taxpayer required to apply (in Form 3CED) with Director General of Income Tax – International Taxation and Transfer Pricing (DGIT – INTL and TP) in triplicate (with documents) for unilateral APA under rule 10-I of ITR 1962

Or

(ii) Taxpayer required to apply (in Form 3CED) with joint Secretary FT & TR–I, New Delhi of Competent Authority of India in triplicate (with documents) for existing bilateral APA + also multilateral APA (both) under rule 10-I of ITR 1962

 (iii) Taxpayer permitted to apply (in Form 3CED) in triplicate (with documents) for 5 (future’s) year’s international transactions with AE

4. Meaning for timings of application with DGIT or Competent Authority (any)

 (i) APA’s application be filled before undertaking international transactions with AE + also for non-recurring nature (both) simaltaneously.

+ (plus)

(ii) Also APA’s application be filled on 1^st day of previous year before undertaking international transactions with AE + for recurring nature (both) simaltaneously.

 5. Meaning for Pre-filing meeting with DGIT or Competent Authority

(i) Taxpayer permitted to apply (in Form 3CEC) for pre-filing meeting (consultation) with DGIT -INTL and TP (DGIT) in triplicate (with documents) for determining scope of agreement + identifying TP issue involved + for discussing broad terms of agreement + also for determining suitability (all).

 (ii) Taxpayer permitted to apply (in Form 3CEC) with DGIT for deciding to file or not to file (in Form 3CED) in triplicate (with documents) through consultation.

(iii) (a) Taxpayer (not) binding for outcome against APA’s application filed (in Form 3CEC) in triplicate (with documents)

+ (plus)

(b) Also CBDT (not) binding to force taxpayer for filing APA’s application (in Form 3CED) with DGIT after filing application (in Form 3CEC) when taxpayer not interested in filing application (in Form 3CED) in triplicate (with documents)

 6. Meaning for filling of Application with DGIT

• Taxpayer permitted to apply (in Form 3CED) because pre-filing meeting (consultation) not mandatorily required with specified information’s + also payment for filing fee (both) simultaneously

 7. Meaning for Negotiation with DGIT

(i) APA team (constituted by CBDT on behalf of govt.) required to hold meetings with taxpayer + also to undertake (necessary) inquiries for APA’s application.

+ (plus)

(ii) Also APA team required to prepare (draft) report for competent authority for bilateral APA + multilateral APA (both) simultaneously

+ (plus)

(iii) Also APA team required to prepare (draft) report for CBDT for unilateral APA (only)

+ (plus)

(iv) Also APA team permitted for site visit to verify + validate functional analysis (specifically) needed when complex manufacturing operations involved + heavy uses for fixed assets + intangible assets + also etc. (all).

• Site visit by APA team (highly) common practice in other countries (outside India).

(v) Site visit helping APA team to verify for actual operations underlying for covered transactions + to have better understanding + also business’s reality (all).

 8. Meaning for Finalisatin with DGIT

• APA team required to exchange comments with taxpayer for (draft) APA + APA’s finalisation + also assessing effect for (initial) year which covered under APA term (period) for completed years before APA’s approval (by CBDT)

Meaning for permission from Govt. of India for approving of APA (by CBDT)

• CBDT required to obtain approval for APA from Govt. under section 92CC(1) of ITA 1961

 10. Meaning for filing fee for APA with DGIT 

S. No	Value of Transactions for APA application	Filling Fee
(i)	When value of Transactions not exceeding INR 100 Crore	INR 10 Lac
(ii)	When value of Transactions not exceeding INR 200 Crore	INR 15 Lac
(iii)	When value of Transactions exceeding INR 200 Crore	INR 20 Lac

11. Meaning for withdrawing APA’s application before approval

(i)Taxpayer permitted for withdrawing APA application before approval (by CBDT)

+ (plus)

(ii) Also taxpayer (not) permitted for refund against filing fee already paid for APA’s application when withdraw before approval (both) simultaneously

 12. Meaning for validity period for APA

 (i) Validity period (maximum period) for APA be written in approved APA (by CBDT)

+ (plus)

(ii) Also validity period for APA (not) permitted for exceeding 5 consecutive year specified under section 92CC(4) of ITA 1961 (both) simultaneously

13. Meaning for APA’s binding on taxpayer + CBDT (both) simaltaneously

• APA binding on taxpayer + CBDT (both) once approved by CBDT for international transactions with AE which already undertaken or to be undertaken in future (both) simultaneously specified under section 92CC (5) of ITA 1961

14. Meaning for APA’s not binding on taxpayer + CBDT (both) simaltaneously

 (i) When any change in law + also facts (both) simultaneously with effect APA

+ (plus)

(ii) Also when APA obtained by taxpayer from CBDT through fraud + misrepresentation of facts (both) simultaneously

 15. Meaning for effect of announcement for APA’s not binding on CBDT

• CBDT permitted for announcing that APA (not) binding on CBDT when APA obtained by taxpayer through frauds + also misrepresentation of facts (both) simultaneously.

 (i) CBDT permitted (empowered) to declare any APA as void ab initio when taxpayer obtained APA through frauds + misrepresentation of facts (both) simultaneously beside that CBDT already obtained approval from Govt. (all)

+ (plus)

(ii) Also 100% normal TP regulations be applied when APA cancelled by CBDT

+ (plus)

(iii) Also period of limitation for assessment + reassessment by Assessing Officer (AO) (both) simultaneously be extended from date for commencing APA + to date for cancelling APA when declared as void ab initio by CBDT.

 16. Meaning for Unilateral APA with taxpayer + CBDT (both) simultaneously

 (i) To include APA which entered between taxpayer and CBDT + also incomes taxable (in India).

+ (plus)

(ii) Also rules 10F + 10G + 44GA (all) of ITR 1962 applicable for unilateral APA

 17. Meaning for Bilateral APA with taxpayer + CBDT + 1 FTA (all) simultaneously

(i) To include APA which entered between taxpayer + CBDT (both) simultaneously + 1 Foreign Tax Administration (FTA) (like CBDT) + also incomes taxable (in India).

+ (plus)

(ii) Also rules 10F + 10G + 44GA (all) of ITR 1962 applicable for Bilateral APA

18. Meaning for Multilateral APA with taxpayer + CBDT + 2 FTA (all)

(i) To include APA which entered between taxpayer + CBDT (both) simultaneously + 2 or more than 2 FTA (like CBDT) + also incomes taxable (in India).

+ (plus)

(ii) Also rules 10F + 10G + 44GA (all) of ITR 1962 applicable for Multilateral APA

19. Meaning for advantages of APA for taxpayer + Govt. (both)

• APA providing 100% certainty for TP + TPM (both) simultaneously for transactions with AE + for Bilateral APA + also for Multilateral APA (all) to eliminate risk for potential (double) taxation on controlled transactions like:-

(i) 100% certainty for controlled transactions with AE during APA period

 (ii) 0 (zero) cost for reporting when APA having annual report’s information’s

 (iii) 0 (zero) cost for TP audit + also for filing appeal before CIT + ITAT + High court + Supreme Court (all) during APA period

 (iv) More flexibility for developing practical approaches for complex TP matters

 (v) More savings through APA renewal like saving of time in negotiating for fresh (original)

 (vi) Taxpayer permitted to convert unilateral APA into bilateral APA & vice versa

 (vii) Taxpayer permitted for 4 preceding year’s roll back + withdrawal for APA application + also APA revision under APA mechanism

 (viii) Taxpayer permitted for 100% international transactions having Permanent Establishment (PE in India) under APA mechanism like:-

 (a) Transfer for tangible property to AE

 (b) Transfer for intangible property to AE

 (c) Determination for cost sharing ratio with AE

 (d) Determination for amount for service received from AE

(ix) Taxpayer (also) permitted for APA on few (specific) international transactions (only).

+ (plus)

(b) Also taxpayer not (mandatory) required for APA on 100% international transactions when taxpayer not interested for APA on 100% transactions.

 (x) (a) APA (most) appropriate TPM for negotiating + finalizing between taxpayer and APA team (on behalf of CBDT).

+ (plus)

(b) Also APA appropriate for TP + outcome of TPM (both) during APA period.

20. Meaning for disadvantages of APA for taxpayer + Govt. (both)

• Disadvantages of APA for taxpayer

(i) APA team taking (more) time for APA approval like from 1 to 3 year when no time needed for determining ALP under TP regulations

+ (plus)

(ii) Also APA team charging (more) money for APA approval like from 10 to 20 lac + also (additional) 5 lac for APA revision when no fee needed for determining ALP under TP regulations

• Disadvantages of APA for CBDT

(i) Constitution for APA team involving (high) manpower + cost (both)

(ii) Taxpayer (many time) exploiting APA approval for tax manipulations

 21. Meaning for constitution of APA team for unilateral APA

• DGIT (himself) + Commissioner of Income Tax (APA) for unilateral APA for 3 city (only) like Delhi + Mumbai + also Bangalore (all)

 22. Meaning for constitution of APA team for bilateral + multilateral (both) APA

• Competent authority of India + Director APA for bilateral APA + also multilateral APA (both) for 3 city (only) like Delhi + Mumbai + Bangalore (all)

23. Meaning for critical assumptions for APA

(i) To include facts + macro-economic criteria’s (both) like industry + business + economic condition + also etc. (all) for APA.

+ (plus)

(ii) Also critical assumptions needed (important) for conclusion of TPM for APA

+ (plus)

(iii) Also substantial changes in critical assumptions to be liable for revision or cancellation (both) simultaneously for APA.

24. Meaning for key informations for filing + Negotiating of APA (both)

(i) 100% (relevant) details needed for future’s international transactions with AE

(ii) 100% (relevant) disclosures for controlled transactions with AE

(iii) 100% (relevant) details for TP background for international transactions with AE

(iv) Audited Financial statements for (latest) 3 year + also future’s projections (both)

(v) 100% (relevant) analysis for Industry like core activities in (specific) industry

(vi) 100% (relevant) business structures like main business arrangements within group’s company (in India) + also outside India (both) simultaneously

(vii) 100% (relevant) detailed Functional Analysis (FA) like functions performed for controlled transaction+ assets used to perform functions + related business risks + also commercial risks (all)

(viii) 100% (relevant) Economic Analysis (EA) + also impact for proposed TPM

• Abovementioned documents + information’s (both) simultaneously (already) available for TP documentations maintained (by taxpayer).

25. Meaning for APA team’s powers for filing + Negotiating of APA (both)

• APA team permitted to ask for furnishing (additional) documents + also information’s (considered necessary) to conclude TPM but required to give sufficient time to taxpayer.

26. Meaning for revision for APA’s application (Form 3CED) with DGIT by taxpayer

(i) Taxpayer permitted for revising application (Form 3CED) through requesting in writing at any stage before APA’s finalisation (by APA team) + also approved by CBDT (both) simultaneously.

(ii) Taxpayer required to disclose circumstances + also to submit supporting documents for justification (both) simultaneously.

27. Meaning for DGIT or Competent authority powers for APA’s revision

• DGIT (for unilateral APA) + competent authority (for bilateral APA or multilateral APA) both permitted for allowing revision in APA application when revision not effecting (basic) nature which originally filed by taxpayer.

28. Meaning for additional fee INR 5 lac for revision of APA’s application

• DGIT or competent authority (any) permitted for asking maximum (additional) fee INR 5 Lac to revise APA’s application.

29. Meaning for timeline for APA’s approval (in India)

(i) APA team (generally) taking 1 to 2 year for finalizing unilateral APA + also taking 2 to 3 year for finalizing bilateral APA or multilateral APA (any).

+ (plus)

(ii) Also APA team (generally) not providing any timeline to complete 100% process for approval + also for approval from CBDT (both)

30. Meaning for timeline for APA’s approval (outside India)

• APA team (generally) not providing any (specific) timeline but providing (tentative) timeline to complete 100% process for approval.

31. Meaning for special factors for timeline by APA team (in India)

(i) Complexity for transactions (already) covered for APA

 (ii) Availability for workforce of examiners + officers (both) simultaneously for APA team

(iii) Unilateral APA + bilateral APA + multilateral APA (all) taking different timeline for completion of APA process (by APA team)

(iv) Treaty (DTAA) partner countries taking different timeline for reviewing requests for bilateral APA or multilateral APA (any)

32. Meaning for consequential effect before APA’s approval

• Taxpayer required to obey for regular income tax’s compliances like annual compliances for TP regulations specified under section 92 of ITA 1961 + also for annual filing of Income Tax Return (ITR) specified under section 139(1) of ITA 1961 during APA’s process like negotiations + finalization untill APA approved by APA team + also signed by CBDT (both) simultaneously

33. Meaning for filing APA’s application during litigation before ITAT

(i) Taxpayer permitted for APA’s application during litigation (pending) before ITAT

+ (plus)

(ii) Also permitted for filing APA’s application during litigation (pending) before ITAT beside (same) matter (already) under litigation before ITAT

34. Meaning for sharing of documents by APA team with Income Tax Authorties

(i) APA rules (in India) still silent for sharing (sensitive) documents + information’s (both) simultaneously with Income tax authorities like AO + TPO + CIT (Appeals) + also etc. (all).

But

(ii) Tax authorities permitted to secure (sensitive) documents + also information’s (both) simultaneously during TP audit by TPO (in India)

35. Meaning for sensitive documents + informations for APA process (in India)

(i) Taxpayer’s future business projections

(ii) Taxpayer’s marketing strategy for future business

(iii) AE’s (outside India) audited financial statements

(iv) Taxpayer’s other (sensitive) documents + information’s (both) simultaneously

36. Meaning for sensitive documents + informations for APA process (outside India)

(i) APA rules (outside India) permitting for sharing some (specific) information’s or facts

But

(ii) Also (not) permitting for sharing some (specific) information’s or facts

37. Meaning for key amendments made through Finance Act 2020

• Taxpayer (now) permitted through APA for determining business’s connection + also specifying procedures (both) simultaneously for attributing incomes towards operations carried (in India) under section 9(1)(i) of ITA 1961.

38. Meaning for publication of details in public domain (in India)

(i) (a) APA team (not) permitted for sharing taxpayer’s data confidentiality which received for pre-filing meetings (consultations) + for APA’s negotiations + also for APA’s finalisation (all).

+ (plus)

(b) Also APA team (not) permitted for sharing taxpayer’s data confidentiality through publication in (public) domain

(iii) (a) APA team (not) permitted for sharing (specific) private agreements made between taxpayer and FTA for 2 or more than 2 countries (outside India).

+ (plus)

(b) Also information’s + documents (both) simultaneously (not) permitted to publish in public domain like ruling pronounced by Authority for Advance Ruling (AAR) which permitted for publication in public domain.

+ (plus)

(c) Also tax authorities required to guarantee for maintaining confidentiality of information’s which received from taxpayer for non APA matters.

+ (plus)

(d) Also Govt. required to guarantee for maintaining confidentiality of information’s which received from taxpayer during APA process for not to publish in public domain.

•  We suggest that govt. be permitted for publishing similar APA’s statistics for future year’s guidance.

39. Meaning for publication of details in public domain (outside India)

 (i) Tax authorities (generally) permitted for publishing annual report on APA’s statistics to provide guidance (to taxpayer) for future’s years.

But

(ii) Taxpayer’s identity (not) permitted for revealing in annual report

40. Meaning for preparation of best answers for appearing before APA team

• Taxpayer required to prepare strategy + roadmap + alternative options + also etc. (all) for communicating with APA team (in India) like :-

(i) Preparation for appropriateness of TP policy

(ii) Alignment for TP policy with commercial substance over form.

(iii) Alignment for inter-company agreements with business substance + also TP policy (both) simultaneously

(iv) Obeying for TP policy with strong back up documentations

(v) Decisions for sharing information’s + documentations (both) simultaneously among group companies.

(vi) Preparation for financial projections for future’s years

(vii) Preparation for alternative plan when APA (not) approved by APA team

(B) Annual Compliances during Continuation of APA period in India

 41. Meaning for Annual Compliance Report (ACR) by taxpayer (Rule 10-O ITR 1962)

(i) Taxpayer required to file ACR (in Form 3CEF) in quadruplicate (in 4 sets) + also to submit requisites documents (both) with DGIT in maximum 30 day from due date for filing of Income Tax Return (ITR) under section 139(1) of ITA 1961

Or

(ii) In maximum 90 day from date for entering into APA (whichever later)

42. Meaning for Annual Compliance Audit (ACA) by APA team (Rule 10-P ITR 1962)

 (i) APA team (through Transfer Pricing Officer (TPO)) required to carry ACA after receiving ACR from taxpayer

+ (plus)

(ii) Also TPO required to complete ACA in maximum 6 month from end of month in which ACR received from taxpayer

43. Meaning for APA’s Revision by DGIT or Competent authority (Rule 10-Q)

• CBDT permitted to revise APA either Suomoto or after receiving request from taxpayer or DGIT or competent authority (any) after satisfying certain factors like:

(i) When change made (if any) in critical assumption or taxpayer failed to meet APA’s terms or conditions (any)

(ii) When change made (if any) in law which become APA’s non-binding on taxpayer or on CBDT (any).

(iii) When request received (if any) from competent authority (outside India) for bilateral APA or multilateral APA (any).

44. Meaning for APA’s Cancellation by DGIT or Competent authority (Rule 10-Q)

• CBDT permitted to cancel APA either Suomoto or after receiving request from DGIT or competent authority (any) after satisfying certain factors like:

(i) When taxpayer failed to comply APA’s terms or conditions (any) ascertained by DGIT.

(ii) When taxpayer failed to file ACR

(iii) When ACR filed (by taxpayer) containing substantial errors.

(iv) When taxpayer (not) agreeing for proposed APA’s revision suggested by CBDT

45. Meaning for APA’s Renewal by DGIT or Competent authority (Rule 10-Q) 

(i)CBDT permitted for renewing Unilateral APA + Bilateral APA + Multilateral APA (all) for maximum 5 year after expiry of original APA’s period + also after receiving consent from 100% APA’s parties like tax treaty partners for bilateral APA or multilateral APA (any).

(ii) CBDT required to receive request from taxpayer for APA’s renewal + also to apply 100% (same) procedures which (already) followed at time of original (initial) APA.

(iii) Taxpayer required (suggested) to apply for renewal before date of expiry of original APA’s period to enable CBDT to replace APA’s renewal into original

(iv) CBDT required to expedite APA’s renewal when facts + circumstances (both) for APA’s renewal (already) 100% (same) with original.

46. Meaning for APA’s approval for 4 preceding’s year (Section 92CC(9A) of ITA, 1961)

(i) Taxpayer permitted to apply APA for 4 preceding’s year (in Form 3CEDA + also with FORM 3CED).

+ (plus)

(ii) Also taxpayer enable to reduce current (pending) litigations through roll back mechanism (both) simultaneously.

47. Meaning for APA’s approval for 5 future’s year

(i) Taxpayer permitted to apply APA (in Form 3CEDA + also with FORM 3CED) in triplicate with requisites documents for 5 future’s year

+ (plus)

(ii) Also taxpayer required to pay (additional) filing fee INR 5 Lac

• Now taxpayer permitted for 4 preceding’s year + also 5 future’s year = 9 year

48. Meaning for applicability of role back provisions + mandatory conditions (both)

(i) Roll back provisions permitted when ITR filed (before) due date specified under section 139(1) of ITA 1961.

+ (plus)

(ii) Roll back provisions (not) permitted when ITR filed (after) due date specified under section 139(1) of ITA 1961.

+ (plus)

(iii) Also audit report specified under section 92E filed for international transactions

49. Meaning for non-applicability of role back provisions + mandatory conditions

 (i) Roll back provisions (not) permitted when ALP (already) determined by AO + also appeal (pending) before ITAT (both) simultaneously

+ (plus)

(ii) Roll back provisions (not) permitted when decreases in incomes or increases in losses against (already) declared incomes or losses in ITRs for 4 preceding’s year.

50. Meaning for consequential effect after APA’s approval (for taxpayer)

(i) Taxpayer required to file (modify) ITR in maximum 3 month from end of month in which APA approved when ITR (already) filed before APA’s approval by CBDT

Or

(ii) Taxpayer required to file (original) ITR before date for entering into APA when original ITR (not) filed before APA’s approval

51. Meaning for consequential effect after APA’s approval (for AO)

(i) AO required to modify (assessment) order in maximum 1 year from end of financial year in which taxpayer filed modified ITR.

(ii) (a) AO required to continue (ongoing assessment) proceedings when APA approved by CBDT during (assessment) proceedings even after receiving modified ITR from taxpayer

+ (plus)

(b) AO permitted to avail extension for maximum 12 month against period of limitation for completion of assessment or reassessment (any) proceedings.

Conclusion:

Advance Pricing Agreements (APAs) in India offer a structured framework for businesses to determine transfer pricing for international transactions with associated entities. This comprehensive guide has addressed 51 frequently asked questions regarding APAs, their application process, annual compliances, revision, and more. By understanding the intricacies of APAs, businesses can enhance tax compliance and mitigate potential disputes.

(Republished with amendments)