| COURT: | Gujarat High Court |
| CORAM: | Bhargav D. Karia J, JB Pardiwala J |
| SECTION(S): | 92C |
| GENRE: | Transfer Pricing |
| CATCH WORDS: | Most Appropriate Method, substantial question of law, Transfer Pricing |
| COUNSEL: | S. N. Soparkar |
| DATE: | February 3, 2020 (Date of pronouncement) |
| DATE: | September 21, 2020 (Date of publication) |
| AY: | 2007-08, 2008-09 |
| FILE: | Click here to view full post with file download link |
| CITATION: | |
| Transfer Pricing: (i) The OECD guidelines recognise that barring exceptional cases, the tax administration should not disregard the actual transaction or substitute other transactions for them. The examination of a controlled transaction should ordinarily be based on the transaction as it has been actually undertaken and structured by the associated enterprises. The guidelines discourage restructuring of legitimate business transactions (ii) The finding by the Tribunal regarding the adoption of TNMM as the Most Appropriate Method of arriving at ALP cannot be termed as perverse or contrary to the evidence on record. Difference of opinion as to the appropriateness of one or the other method cannot be gone into in a s. 260A appeal | |
The significance of the aforesaid guidelines lies in the fact that they recognise that barring exceptional cases, the tax administration should not disregard the actual transaction or substitute other transactions for them and the examination of a controlled transaction should ordinarily be based on the transaction as it has been actually undertaken and structured by the associated enterprises. It is of further significance that the guidelines discourage restructuring of legitimate business transactions. The reason for characterisation of such restructuring as an arbitrary exercise, as given in the guidelines, is that it has the potential to create double taxation if the other tax administration does not share the same view as to how the transaction should be structured.
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