|CORAM:||I. C. Sudhir (JM), Pramod Kumar (AM)|
|CATCH WORDS:||Cost Plus Method, Transfer Pricing|
|DATE:||December 31, 2014 (Date of pronouncement)|
|DATE:||January 1, 2015 (Date of publication)|
|AY:||2003-04 to 2006-07|
|FILE:||Click here to download the file in pdf format|
|Transfer pricing: To apply the "Cost Plus Method", there must be a “comparable uncontrolled transaction”. The fact that the same product is sold by the assessee to its AEs as well as to third parties does not mean that the two sets of transactions are comparable if the business model, marketing, sales promotion etc is different|
The assessee, an Indian company, manufactured chewing gum etc which were sold to the associated enterprises (AEs) and also to independent enterprises (non AEs).The distinction in respect of these transactions with AEs and non AEs is that while the transactions with the AEs are in the capacity as limited risk contract manufacturer, its transactions with the domestic independent enterprises is a business transaction with regular entrepreneurship risks. The assessee applied TNMM to claim that the transactions with the AEs are at arms’ length (the TP study report has been criticized by the ITAT as reported here). The TPO rejected TNMM and adopted the “Cost Plus Method” with gross mark up on costs as the profit level indicator, and adopted the internal comparable as gross mark up realized on the domestic sales. In other words, the TPO held that the arm’s length price of the products exported to the AEs can be arrived at by adopting the same mark up on costs of such products as was achieved on the domestic sales. This was upheld by the CIT(A). On appeal by the assessee to the Tribunal HELD:
(i) The fundamental input for application of CPM method, next only to ascertainment of historical costs, is ascertainment of the normal mark-up of profit over aggregate of such direct costs and indirect costs in respect of same or similar property or services in a “comparable uncontrolled transaction” or, of course, a number of such “comparable uncontrolled transactions”. When compared with CUP method, as against the “price” of a comparable uncontrolled transaction, one has to find out “normal mark up of profit” in a comparable uncontrolled transaction. Whether it is “price” or “normal mark up of profit”, the starting point of both these exercises in the CUP and the CPM is finding a “comparable uncontrolled transaction”. In order for such comparisons to be useful, the economically relevant characteristics of the situations being compared must be sufficiently comparable. It is only elementary, as is also noted in the OECD Transfer Pricing Guidelines, that “to be comparable means that none of the differences (if any) between the situations being compared could materially affect the condition being examined in the methodology (e.g. price or margin), or that reasonably accurate adjustments can be made to eliminate the effect of any such differences”;
(ii) The question that arises is whether the transactions with the AEs can be compared with the sales of similar product to distributors or other entities in the domestic market and particularly in a situation in which not only the market is geographically different but also entire business model is different vis -à-vis transactions with the AEs, inasmuch as the sales in domestic market necessitates substantial expenditure by the assessee for marketing support and sales promotion strategy. In other words, whether “export price of product simplictor, without any marketing support in the related market” can have a “comparable uncontrolled transaction” in “domestic sale price of a product in a situation in which entire marketing function and sales promotion is seller’s responsibility”. The answer has to be an emphatic ‘No’. The two situations, i.e. sale simplictor of a FMCG product for an overseas AE without any costs being incurred on the marketing and sales promotion amongst the end users, and sale of a FMCG product to a domestic independent enterprises with full responsibilities for marketing and sales promotion amongst the end users, are not ‘comparable transactions’ in the sense that profitability in the latter cannot be a proper benchmark for profitability in the former. It is not only in the marketing and sales promotion that the difference lies, but it extends to the fundamental business model itself particularly as the sale is not to an end user, such as in the cases of plant and equipment etc, but to an intermediary who, in turn, has to sell it to, through yet another tier or tiers of intermediaries, the end user. The sale of products to the non-resident AEs is more akin to contract manufacturing arrangement, while the sale of products to independent enterprises domestically is a regular business entrepreneurial venture. Whether contract manufacturing or not, as long as the business models of sales to AEs and sales to non AEs are different, the transactions under these business models cannot be “comparable transactions” for the purposes of transfer pricing. In the first business model, creation of market in the end users is not the responsibility of the vendor, but in the second business model, it is job of the vendor to create and maintain the market of end users as well. The product may be the same but the FAR profile is materially different and it is this FAR profile which governs the profitability. The basic notions of transfer pricing recognize the impact of FAR profiling on the profitability. When profitability levels in two business situations, due to significant differences in FAR profiles of two situations, are expected to be different, such transactions cease to be comparable transactions for the purposes of transfer pricing analysis;
(iii) On facts, the comparability analysis has been confined to the first segment itself, i.e. characteristic of the property transferred. Undoubtedly, the product comparability is an important factor but its certainly not the sole or decisive factor. The assessee was producing the same products for its AEs as it was producing for independent enterprises but that was all so far as similarities were concerned. The FAR profile was not the same, the contract terms were not the same, the economic circumstances were not the same and the business strategies were not the same. Viewed thus, necessary precondition for application of CPM, i.e. finding normal mark up of profit in comparable uncontrolled transactions, could not have been fulfilled. When uncontrolled transactions were not comparable, the normal mark up on profit on such transactions could not have been relevant either. Accordingly, the authorities below were not justified in holding that the cost plus method was the most appropriate method on the facts of this case. One of the necessary ingredient for application of CPM, i.e. normal mark up of profit in the comparable uncontrolled transactions- whether internal or external, was not available as no comparable uncontrolled transactions were brought on record by the authorities below. What was brought on record as an internal comparable uncontrolled transaction, i.e. manufacturing for the domestic independent enterprises, was uncomparable as the FAR profile was significantly different. Undoubtedly, direct methods of determining ALP, including cost plus method, have an inherent edge over the indirect methods, such as TNMM, but such a preference can come into play only when appropriate comparable uncontrolled transactions can be identified and analysed accordingly. That has not been done in the present case. There is, therefore, no good reason to disturb the TNMM method adopted by the assessee.
WITH ALL DUE RSPECT TO LEARNED MEMBER I THINK THE COMMENTS IN THIS CASE ARE ALSO UNWARRANTED. THE CERTIFICATE U/S 3CEB ISSUED BY CA DOES NOT REQUIRE CA TO CERTIFY CORRECTNESS OF THE METHOD USED TO DETERMINE ALP. SELECTION OF METHOD IS UPTO ASSESSEE AND 3CEB REQUIRES ONLY A MENTION OF METHOD USED TO DETERMINE ALP.
The criticism is of the process and not the Profession.The certification process needs to be robust and it doesn’t give opportunity to other Profession to rejoice.Change in policy and process is round the corner!
The certifications by the professionals should not only be objective but also be within the four walls of law. Not designed to cover up the actions of the assessee which do not comply with the law.
The job of the professional is to act independently and fairly.
The fundamental point is missed.
The selection of appropriate method is not the point in dispute. TNMM is accepted to be correct. Revenue’s claim that CPM should be applied is rejected and the appeal is decided in favour of the assessee. The problem is whether TNMM as per certification can be accepted or whether the matter is go back to TPO for this purpose.
The auditor has certified that TNMM is followed, but TNMM or any other method in the world, no ALP determination method can be used on the basis of “BUDGETED PROFITS” of the tested party being compared with “ACTUAL PROFITS REALIZED” by the comparables. This is not TNMM. This is not any permissible method
The criticism is of a certification which sidesteps the above reality.
The doubts are not on the ability of any professional but doubt is on independence. The auditor should be appointed by the principal stakeholder i.e. CBDT and then things will change.