Where the assesee was a captive company rendering software development services to its parent company and was entitled to receive actual cost + 5% and it was agreed that the Transactional Net Margin Method (“TNMM”) was the appropriate method for determining arms’ length price, held:
(a) the strength of TNMM is that net margins (e.g. return on assets, operating income to sales and possibly other measures of net profit) are less affected by transactional differences than is the case with price as used in the CUP Method;
(b) However, the TNMM method also has a weakness because the net margin can be affected by factors that do not have an effect on price or margins;
(c) Accordingly, the TNMM has to be used sensibly and with appropriate adjustments to account for differences. Similarities and differences have to be carefully scrutinized to see the differences of situations, circumstances and environments;
(d) On facts, where two entities taken for comparison showed extraordinary results and had income from other sources, they had to be ignored;
(e) The margin of profit of the assessee has to be computed by adopting depreciation as per Indian laws if a higher rate has been provided in the accounts.