DCIT vs. BASF India Limited (ITAT Mumbai)

DATE: (Date of pronouncement)
DATE: January 12, 2011 (Date of publication)

Click here to download the judgement (basf_transfer_pricing_5_variation.pdf)

If Transfer Pricing difference is less than 5%, actual price should be taken as ALP

In respect of AY 2002-03 the assessee purchased goods from its associated enterprises. The difference between the price paid by the assessee and the arms’ length price determined by the AO was 4%. The assessee argued that by virtue of the second Proviso to s. 92C (2), no adjustment could be made. HELD accepting the assessee’s claim:

The second Proviso to s. 92C (2) (as substituted by F (No. 2) Act, 2009 w.e.f. 1.10.09) clearly shows that if the difference is less than 5% then the actual price paid should be considered as arm’s length price. The TPO as well as CIT (A) have clearly observed that difference in respect of these two items is 4% and, therefore, same has to be reckoned in terms of second proviso. Similar view was taken in the case of Sony India vs. Dy. CIT by Delhi Bench of the Tribunal 114 ITD 448.

Note: This view has not been followed in ACIT vs. UE Trade Corporation (India) (ITAT Delhi)

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