Brief of the case: – The Delhi bench of the Income-tax Appellate Tribunal [“The Tribunal”] recently pronounced its ruling in the case of Clear Plus India Private Limited Vs. DCIT [ITA NO. 3944/DEL/2010], wherein it upheld the transfer pricing methodology adopted by the taxpayer to benchmark its export sale by the application of internal comparable uncontrolled price [“CUP”] method, adopting its associated enterprise [“AE”] as the tested party. The revenue’s contention to use Transactional Net Margin Method [“TNMM”] was rejected as in view of the Tribunal minor aberrations in the application of CUP method do not warrant its abandonment.
Facts of the case:- The taxpayer, a subsidiary of M/s Advantage Asia, USA [“the AE”], is engaged into manufacture of wind-shield wipers in Noida SEZ and entitled to tax holiday benefits under section 10A of the Income-tax Act, 1961 [“the Act”]. The AE procures comparable automobile wipers from the taxpayer as well as from an independent Chinese supplier [“Chinese supplier”] for resale in the USA and sells them under the same brand.
During the relevant assessment year, the taxpayer exported wipers to its AE [“subject transaction”] and benchmarked the same with the application of internal CUP method, adopting the AE as the tested party since the quality of Chinese and Indian purchases was comparable. Since the AE paid a higher price in the subject transaction in comparison to Chinese purchases, it was concluded that the arm’s length principle was satisfied.
However, the Transfer Pricing Officer [“TPO”] rejected CUP method in favor of TNMM on the pretext that the comparability of the two transactions could not be established with reasonableness and accuracy. Further, the conditions prevailing in the market were held to be dissimilar. The TPO selected four com parables (without carrying out any detailed FAR analysis) and made an upward adjustment to the total income of the taxpayer. While making adjustment, he failed to take into account the notional interest on interest-free loan granted by the AE and also, did not grant the benefit of +/- 5% range to the taxpayer.
The Appellant approached the Dispute Resolution Panel [“DRP”], which also confirmed the stand of the TPO.
The aggrieved taxpayer filed an appeal before the Tribunal, seeking endorsement of CUP method. Further, it submitted an application for admitting additional evidence, which contained results of quality test reports conducted by an independent organization of Indian and Chinese wipers.
Ruling of the Tribunal
The Tribunal, while upholding the application of CUP method by the taxpayer, held as under:
The case was restored back to the file of AO to determine the arm’s length price by adopting CUP method. The taxpayer was instructed to furnish data of AE for Chinese and Indian purchases.
Conclusion :- CUP method, being a direct method, provides the most reliable measure of arm’s length price and should be preferred over any other method when it can be reliably applied. Further, for the application of CUP method, 100% comparability is not required and minor aberrations in its application do not justify its complete rejection. The relevant market to test a transaction under CUP is the market where the goods are sold and not the place of origin of goods.