|CORAM:||A. T. Varkey (JM), Prashant Maharishi (AM)|
|CATCH WORDS:||ALP, intra-group services, Transfer Pricing|
|DATE:||May 2, 2016 (Date of pronouncement)|
|DATE:||May 7, 2016 (Date of publication)|
|AY:||2006-07, 2007-08, 2008-09|
|FILE:||Click here to download the file in pdf format|
|S. 92(2): Important principles of law laid down with regard to the “Need Test”, “Evidence Test” or “Rendition Test” to evaluate the ALP of intra-group services rendered by an Associated Enterprise and whether the TPO has the right to determine the ALP at ‘Nil’|
The rendering of intra group services for which Assessee has paid Rs.21,20,48,533/- TPO determined ALP at NIL holding that the assessee did not obtained any benefit of such services and the services provided by the foreign AE were either not required, these are incidental or stewardship services or duplicate services and hence unwarranted. Since, in his opinion, the assessee failed to provide any evidence about the services rendered by the AE necessitating the payment of such charges, he computed the ALP of this international transaction at Rs. Nil. TPO has simply held that as there is no benefit from the services for which payments has been made in determined the ALP of this international transaction at Nil without carrying out any FAR analysis of this intra-group services. On appeal HELD by the Tribunal:
(i) Regarding the need test, it is apparent that looking to the size of the business of the assessee and also for the continuous growth of the services assessee has justified that such services are required. It is pertinent to note that requirement of the services should be judged from the viewpoint of the appellant as a businessman. Therefore in this regard we are of the view that assessee has substantiated that these services are required by it. As the company is one of the parties as service receiver of that agreement it proves that such services were required by the assessee. Further the assessee is part of the MNE organization, which has provided the service to many companies across the globe. As all other companies situated in all together different companies and operating in different geographies have also received and used these services which is evident from the allocation list submitted by the assessee therefore this itself proves that for the assessee to remain competitive in its business such services are required. Therefore the assessee satisfied the need test which is alleged by ld. TPO to have not been satisfied by the assessee.
(ii) Regarding the receipt of the services from AE, the assessee can be asked to maintain and produce the evidence of receipt of services, which a businessman keeps and maintains regarding services related from the third party. The burden cannot be higher on the assessee for evidencing the receipt of services of higher level merely because the services have been rendered by its AE. Against these overwhelming evidence placed by the assessee before the lower authorities ld. TPO has merely stated that assessee has not been able to provide any evidence n that the AE has provided such services to the assessee. We could not find any instances placed in the order of LD, TPO where it held that the evidence placed by the assessee are not substantiated by rendition of service by the AE.
(iii) Hence in view of the overwhelming evidence placed by the assessee for receipt of services and following the decision of coordinate bench respectfully, we are of the view that rendering of services must be seen from the view point of the assessee and further assessee cannot be asked to keep and maintain evidences of services rendered by AE higher than which is expected from a businessman receiving services from an unrelated provider. Therefore, we reject the view point of Ld. TPO and Ld. DRP that assessee has not shown the receipt of the services. In view of above we are of the view that assessee has justified the receipt of services and satisfied the rendition test.
(iv) From the above decision of Honourable High court it is apparent that the user of the services are concerned with the usefulness of its services which enhances the value thereof and consequently in furtherance of its commercial interest. Merely profitability cannot be the criteria for benefit, it is much more than what is determinable in monetary terms. Therefore while determining ALP of IA, usefulness, enhancement in value and furtherance of business interest is required to be seen.