MAN Energy Solutions India Pvt.Ltd, Aurangabad V. Joint Commissioner of Income-tax, TP - 2, Pune

ITA 204/PUN/2022

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The case involves MAN Energy Solutions India Private Limited, a subsidiary of MAN, Germany, which faced a transfer pricing adjustment by the Assessing Officer under sections 143(3) and 144C(13) of the Income-tax Act, 1961, for the assessment year 2017-18. The adjustments pertained to international transactions, including royalty payments and design engineering services, which were initially aggregated under the manufacturing segment. The Transfer Pricing Officer (TPO) separately assessed these transactions, leading to significant adjustments. The Tribunal's decision focused on the appropriateness of the TPO's methods and the selection of comparables for determining the arm's length price (ALP).

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 137585 (ITAT-PUNE)
• Duration Of Justice: 9 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-01-2023
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: C
• Next Hearing Date: 11-01-2023
• Assessment Year: 2017-2018
• Appeal Filed On: 06-04-2022
• Other Referred Cases: Knorr Bremse India (P) Ltd. Vs. ACIT, Magneti Marelli Powertrain India Pvt. Ltd. vs. DCIT
• Laws Referred To: Income-tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Transfer pricing; International transaction
• Section: 92C; 92B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH “C”, PUNE BEFORE SHRI R.S. SYAL, VICE PRESIDENT AND SHRI PARTHA SARATHI CHAUDHURY, JUDICIAL MEMBER ITA No.204/PUN/2022 िनधा रण वष / Assessment Year: 2017-18 MAN Energy Solutions India Private Limited, E-73, MIDC, Waluj, Aurangabad – 431 136 Maharashtra PAN : AAACM0320L Vs. JCIT,TP-2, Pune Appellant Respondent आदेश / ORDER PER R.S.SYAL, VP : This appeal by the assessee assails the correctness of the final assessment order dated 10-02-2022 passed by the Assessing Officer (AO) u/s.143(3) r.w.s.144C(13) of the Income-tax Act, 1961 (hereinafter also called ‘the Act’) in relation to the assessment year 2017-18. 2. The first issue raised in this appeal is against the making of transfer pricing adjustment of Rs.12,98,02,765/- with respect to the international transaction of `Payment of Royalty’. Assessee by: Shri Rahul Mehta Revenue by: Shri Satyajit Mandal & Shri Suhas Kulkarni Date of hearing 12-01-2023 Date of pronouncement 13-01-2023 ITA No.204/PUN/2022 MAN Energy Solutions India Private Limited 2 3. Succinctly, the facts of the case are that the assessee is a subsidiary company of MAN, Germany, which is world market leader for large diesel engines for use in Ships and Power stations. The assessee filed its return declaring total income at Rs.51,91,06,980/-, giving certain international transactions in Form No.3CEB. The Assessing Officer (AO) made a reference to the Transfer Pricing Officer (TPO) for determining Arm’s Length Price (ALP) of the international transactions. During the course of the transfer pricing proceedings, the AO observed that the assessee aggregated all the transactions of ‘Manufacturing activity’ and ‘Trading activity’ for demonstrating them at ALP. Taking note of the Tribunal order passed in the case of the assessee for the A.Y. 2012-13, the AO held that the aggregation of the ‘Manufacturing activity’ with the ‘Trading activity’ was not acceptable. He, therefore, segregated the ‘Manufacturing segment’ and took up the same for consideration. More specifically, the TPO focussed only on Royalty payment of Rs.25,93,47,186/- paid by the assessee to its Associated Enterprise (AE) for technical knowhow. He segregated this transaction from the ‘Manufacturing segment’. The ALP of the royalty-payment transaction was separately determined under ‘Other method’ as prescribed under Rule 10AB ITA No.204/PUN/2022 MAN Energy Solutions India Private Limited 3 by adopting 3 comparables giving average profit rate on net sales at 4.56%. The TPO also computed the assessee’s Royalty payment as a percentage of sales at 9.13%. Applying the arm’s length rate of 4.56%, he computed the transfer pricing adjustment amounting to Rs.12,98,02,785/-. The assessee remained unsuccessful before the Dispute Resolution Panel (DRP), which led the AO to pass the final assessment order with the equal amount of transfer pricing adjustment. Aggrieved thereby, the assessee has come up in appeal before the Tribunal. 4. We have heard the rival submissions and gone through the relevant material on record. The ld AR did not dispute segregation of ‘Manufacturing segment’ from the ‘Trading segment’. He focussed on the segregation of Royalty transaction from the ‘Manufacturing segment’. 5. Section 92(1) of the Act provides that: ‘Any income arising from an international transaction shall be computed having regard to the arm’s length price.’ The procedure for computation of arm’s length price has been set out in section 92C. Sub-section (1) of section 92C provides that: ‘The arm’s length price in relation to an international transaction shall be determined by any of the following methods, being the most appropriate method .....’. A ITA No.204/PUN/2022 MAN Energy Solutions India Private Limited 4 bare reading of section 92C(1) brings out that the ALP is required to be determined of ‘an’ international transaction. The term ‘international transaction’ has been defined in section 92B to mean: `a transaction between two or more associated enterprises, either or both of whom are non-residents, in the nature of purchase, sale or lease of tangible or intangible property, or provision of services, or lending or borrowing money, or any other transaction having a bearing on the profits, income, losses or assets of such enterprises, .....’. It is discernible from the above definition of the `international transaction’ given in section 92B that it refers to ‘a transaction’ between two or more associated enterprises. The term ‘transaction’ has been defined in section 92F(v) and also in Rule 10A(d) of the Income-tax Rules, 1962. The Rule defines the term ‘transaction’ to include: ‘a number of closely linked transactions.’ On going through the above provisions, it becomes palpable that the arm’s length price is essentially determined on transaction-by-transaction approach for each international transaction separately; and for that purpose, a transaction in singular also includes plural for closely linked transactions. In other words, where the transactions are not closely linked, their ALP needs to be determined separately and such determination of ITA No.204/PUN/2022 MAN Energy Solutions India Private Limited 5 the ALP of ‘an’ international transaction as per section 92C(1) of the Act should be done as per the most appropriate method. To put it more simply, each international transaction is viewed separately and independent of other international transactions for determining its ALP unless they are closely linked. It is impermissible to combine more than one unrelated international transaction for determining their ALP in a unified manner when they are diverse in nature. 6. It is simple and plain that cross subsidization of international transactions is impermissible. It is overt from section 92(1) of the Act that if an international transaction is recorded showing a lower income than its ALP income, then the higher ALP income is considered for the purpose of computing total income. Section 92(3) of the Act manifests that the provisions of this section shall not apply in a case where the computation of income having regard to ALP has the effect of reducing income chargeable to tax. The net effect of section 92(3) is that if the transacted-value income from an international transaction is more than its arm’s length income, then, the arm’s length income should be discarded and the actual income should be considered. To sum up, it is the higher of actual income or the arm’s length income from an international ITA No.204/PUN/2022 MAN Energy Solutions India Private Limited 6 transaction, which is taken into consideration for computing the total income. It, thus, divulges that the actual more income from one international transaction (vis-a-vis its lower arm’s length income) cannot be combined with the more arm’s length income from another transaction (vis-à-vis its lower actual income), so as to set off the excess income (actual transacted income minus arm’s length income) from the first transaction with the income (arm’s length income minus actual transacted income) arising from the second transaction. When we consider more than one unrelated transaction under the combined umbrella of the TNMM, it is quite possible that a probable addition on account of transfer pricing adjustment arising from one unrelated international transaction may be grabbed or reduced by the income from another unrelated international transaction giving higher income on transacted value, throwing the transfer pricing provisions to winds much against the very concept and intent of the provisions of Chapter-X of the Act. Such an attempt of cross subsidization needs to be deprecated. 7. The Hon’ble Punjab & Haryana High Court in Knorr Bremse India (P) Ltd. Vs. ACIT (2016) 380 ITR 307 (P&H) considered the question of aggregation of international transactions. Their Lordships laid down the principles of aggregation of international ITA No.204/PUN/2022 MAN Energy Solutions India Private Limited 7 transactions by holding that several transactions between two or more AEs can form a single composite transaction if they are closely linked transactions and the onus is always on the assessee to establish that such transactions are part of an international transaction pursuant to an understanding between various members of a group. The Hon’ble High Court observed that in case of a package deal where each item is not separately valued but all are given a composite price, these are one international transaction. Further, where a number of transactions are priced differently but on the understanding that the pricing was dependent upon the assessee accepting all of them together (i.e. either take all or leave all), then also they have been held to be taken as one international transaction. But the onus has been put on the assessee to prove that although each is priced separately, but they were provided under one composite agreement. It still further held that each component may be priced differently also, but it will have to be shown that they are inextricably linked that one cannot survive without other. 8. Adverting to the facts of the extant case, it is seen that the transaction of payment of Royalty for use of technical know-how provided by the AE and other international transactions under the Manufacturing segment are not under any package deal nor is there ITA No.204/PUN/2022 MAN Energy Solutions India Private Limited 8 any such understanding or any inextricable link between these transactions as one not surviving without the other, as has been spelt out in the case of Knorr- Bremse (supra). The assessee paid royalty for the use of technology as a separate independent transaction. Merely because payment of royalty for use of technical know-how leads to manufacture of final product, it does not follow that they both are dependent or closely-linked transactions. In such circumstances, the ALP of the international transaction of Payment of Royalty for use of technology cannot be aggregated with others. 9. The assessee in Magneti Marelli Powertrain India Pvt. Ltd. vs. DCIT (2016) 389 ITR 469 (Delhi), similar to the present case, entered into agreement with its A.E. for acquiring technology required for the purpose of manufacturing. It applied the TNMM to benchmark its international transactions of import of raw materials, sub-assemblies and components, payment of technical assistance fees, payment of royalty, payment of software and purchase of fixed assets. All these transactions were categorized under one broad head, that is, “Manufacturing of automotive components” and shown to be at ALP. The TPO rejected the assessee’s aggregation approach of also including, Technical assistance fees and proceeded to determine the ALP of the Technical assistance ITA No.204/PUN/2022 MAN Energy Solutions India Private Limited 9 fees separately. The Tribunal approved the TPO’s stand on segregation of payment of Technical assistance fee. The Hon’ble Delhi High Court admitted the question in this regard - `Whether the Income Tax Appellate Tribunal was right in holding that royalty and technical assistance fee did not form part of a composite transaction and have to be treated as two separate transactions for the purpose of benchmarking and computing arms length price?’ and answered it against the assessee thereby affirming the view of the Tribunal that aggregation of the transaction of payment of Technical fees with other international transactions under the common TNMM was not correct. 10. We note that the facts of the instant case are similar to those of Magneti Marelli (supra) inasmuch as the assessee therein also paid royalty to its AE for use of Technical support for the manufacture of its products, and the Hon’ble High Court did not approve clubbing of payment of technical fees with other transactions under the Manufacturing segment. In view of the foregoing discussion, it is held that the international transaction of payment of Royalty by the assessee for use of technical support cannot be clubbed with other international transactions under the Manufacturing segment. ITA No.204/PUN/2022 MAN Energy Solutions India Private Limited 10 11. Now we take up the ALP determination of the Royalty transaction on merits. In this regard, it is seen that the TPO applied “Other method” under Rule 10AB and selected 3 comparables as under : S.No. Name of the licensor Name of the foreign licensee Basis of royalty % on net sales 1 Turbodyne Technologies, Inc. and Turbodyne Systems, Inc. Honeywell International Inc. Net Sales 3.70% 2 Palweb Corp. Gravity Management & Engineering Group, LLC Sales Price or Gross Lease Payment (Revenue) 5.00% 3 Advanced Vibration Technologies Inc. and subsidiaries Aurios Inc. and subsidiaries Net Sales 5.00% Average 4.56% 12. The assessee objected to the selection of the comparables inter alia on the ground that there was difference in the nature of business in terms of Royalty Agreements and also territory of Royalty Agreement entered into by the assessee vis-a-vis comparables taken note of by the TPO. Relying on the mandate of Rule 10AB, the TPO rejected the assessee’s contention by observing that the rule provides for considering “the same or similar uncontrolled transactions”. Since the comparables chosen by him were similar to that of the assessee, the TPO repelled the ITA No.204/PUN/2022 MAN Energy Solutions India Private Limited 11 assessee’s contention. No further reprieve was provided by the DRP, which resulted in making the transfer pricing adjustment in the final assessment order. 13. At the outset, the ld. AR did not raise any serious objection to the applicability of the `Other method’ as the most appropriate method for the processing of the royalty transaction. His objection was confined to the selection of comparables. In order to appreciate the rival contentions, it would be befitting to take note of the prescription of Rule 10AB containing the mechanism for determining the ALP under “other method”, as under : “R. 10AB. Other method of determination of arm’s length price.—For the purposes of clause (f) of sub-section (1) of section 92C, the other method for determination of the arms’ length price in relation to an international transaction or a specified domestic transaction shall be any method which takes into account the price which has been charged or paid, or would have been charged or paid, for the same or similar uncontrolled transaction, with or between non-associated enterprises, under similar circumstances, considering all the relevant facts.” 14. A bare perusal of the method transpires that the “Other method” for determining the ALP shall be any method which takes into account the price paid or that would have been paid for the “same” or “similar” uncontrolled transaction with or between non- AEs under similar circumstances. Unlike the first five specific methods, which contemplate comparison of the international ITA No.204/PUN/2022 MAN Energy Solutions India Private Limited 12 transaction or specified domestic transaction of the assessee with actual comparable uncontrolled transactions, the last method also provides for considering the probable comparable uncontrolled transactions. The TPO has taken three comparable companies, which are though actual transactions, but have been found by him to be in the nature of similar transactions because of the wider sweep of the prescription of the method in selection of comparables also. The term similar uncontrolled transaction, along with the same, used in `other method’ is missing in the CUP and the TNM methods. Thus, it is overt that the TPO has gone with the wider comparability under the shelter of similar uncontrolled transactions, which is ostensible from the selection of comparables. The first comparable is the foreign licensee, namely, Honeywell International Inc. with a foreign licensor for the use of technical knowhow in respect of licensed products, namely, Motor driven Compressor products. The second comparable chosen by the TPO is the licensee, Gravity Management Engineering Group, LLC with a foreign licensor in respect of licensed products, namely, Multiple mould Work stations with Single Injection feeder and Hydraulic pumping station and production of plastic pallets. The third comparable is licensee Aurios, Inc. with again a foreign licensor in ITA No.204/PUN/2022 MAN Energy Solutions India Private Limited 13 respect of the licensed products, namely, Pro max media isolation bearing and classic media isolation bearing. It is thus seen that all the three licensors and licensees are foreign parties and the licensed products are in entirely different field vis-à-vis the assessee, which got the license from its AE for manufacturing Four-stroke diesel engines for marine and land-based power generation and for marine propulsion. The TPO has emphasized on the expression “similar” uncontrolled transaction used in Rule 10AB for considering these three companies as comparable despite the fact that the licensed products by them were quite different from that of the assessee. At this stage, we want to emphasize that Rule 10AB talks of considering the price paid or that would have been paid “for the same or similar uncontrolled transaction”. The words “the same” appear in the language of the rule prior to the word “similar” joined by the words “uncontrolled transaction”. It thus indicates that similar uncontrolled transactions are to be considered only if same uncontrolled transactions are not available. In other words, the preference in Rule 10AB has to be given to “same” uncontrolled transactions over “similar” uncontrolled transactions. As against the comparable uncontrolled transactions considered by the TPO, recognized as similar, the assessee ITA No.204/PUN/2022 MAN Energy Solutions India Private Limited 14 brought on record “same” uncontrolled transactions, namely, the licensing of technical knowhow by the assessee’s same AE to two independent entities in Korea and China for the manufacture of same Diesel engines. Not only the assessee placed on record invoices issued by the assessee’s AE to these independent entities in China and Korea, but Agreement for licensing of technical knowhow to Korean party has also been produced. This Agreement, a copy placed at page 10 onwards of the additional paper book, is between MAN Diesel and Turbo Denmark (being same entity which licensed the technical knowhow to the assessee also) and STX Engine Company Ltd., Republic of Korea (an independent unrelated party). Enclosure-1 to the Agreement shows that the technical knowhow was given to the Korean party for manufacturing Diesel Engines, being, the same product for which the assessee was licensed with. This indicates that the technical knowhow provided under this Agreement is of the “same” product in an uncontrolled transaction. Now let us examine the rates of Royalty charged by the assessee’s AE from the assessee as well as the Korean party. The assessee’s Agreement with its AE shows the rates of Royalty at 19.50 Euro per KW, which was charged for the year at 19.92 Euro per KW. ITA No.204/PUN/2022 MAN Energy Solutions India Private Limited 15 The Agreement between the assessee’s AE and Korean party gives the rate of Royalty at 23.80 Euro per KW. This explains that not only the product for which the assessee’s AE charged Royalty from the assessee is similar to that for which technical knowhow was supplied to a Korean independent third party, but the rate charged from the assessee is also relatively lower. Similarly, the invoices of the assessee’s AE raised on another independent Chinese party also show that the rate charged for the similar product is higher than that charged from the assessee. When “same” uncontrolled transaction is pitted against the “similar” uncontrolled transaction, there is no prize for guessing that the preference has to be given to the “same” uncontrolled transaction. The ld. DR, after going through the Agreement between the assessee’s AE and Korean party, could not point out any substantial difference between the terms of the Agreement with that of the assessee except for certain cosmetic changes. As the Royalty for same product charged by the assessee’s AE from another Korean party in terms of Euro per KW is more than that charged from the assessee, we hold that the transaction of payment of Royalty is at ALP. The addition of Rs.12.98 crore and odd is, therefore, directed to be deleted. ITA No.204/PUN/2022 MAN Energy Solutions India Private Limited 16 15. The second dispute in this appeal is in respect of the transfer pricing adjustment in the segment of “Design Engineering Services”. The facts anent to this issue are that the assessee rendered design engineering services to its AE for a consideration of Rs.31,57,01,539 and computed its Profit Level Indicator (PLI) at 12.12% under the TNMM, as against the weighted average Operating Profit/Total Cost (OP/OC) of 5 comparables at 11.19%. This is how, the assessee claimed that the international transaction of provision of Design Engineering Services was at ALP. The TPO altered the list of comparables. Adding 2 new companies to the one out of 5 chosen by the assessee, he computed the mean OP/OC of the 3 comparables at 16.64%. By treating the same as the arm’s length profit, the TPO proposed transfer pricing adjustment of Rs.1,48,05,266/-. No reprieve was provided by the DRP, which had the consequence of the making of the transfer pricing addition in the final assessment order. 16. The assessee in this segment is aggrieved only by the inclusion of Aabsys Information Technology Pvt. Ltd. in the list of comparables by the TPO. But for that, no challenge has been laid to any other aspect of the ALP determination under this segment. ITA No.204/PUN/2022 MAN Energy Solutions India Private Limited 17 Aabsys Information Technology Pvt. Ltd. was chosen by the TPO as comparable, which was objected to by the assessee submitting that it was engaged in offering Geospatial and IT Services. The relevant extracts from the Annual report of this company were also placed before the TPO, who did not concur with the assessee’s submissions and included it in the final list of comparables. No succor was provided by the DRP. 17. Before examining the comparability or otherwise of this company, it is sine qua non to take note of the functions performed by the assessee under the international transaction. For this purpose, we have examined the Agreement between the assessee and its AE, under which the Design Engineering Services were rendered. A copy of such Agreement has been placed at page 267 onwards of the paper book. This Agreement provides for the assessee providing “Engineering Support Services” to its AE. The term “Engineering Support Services” has been defined in the definition section to include 3D version CAD models, 2D CAD drawings, quality assurance, data capture, cleaning and storage and data reports etc. Our attention has been invited towards the Annual report of Aabsys Information Technology Pvt. Ltd., whose copy has been placed at page 295 onwards of the paper book. The ITA No.204/PUN/2022 MAN Energy Solutions India Private Limited 18 principal business activities of this company include Database Services with Data processing and Tabulation Services, Online Information and Data Retrieval Services, Electronic Data Interchange Services, Web search Portal Content Services, Code and Protocol Conversion Services etc. Total revenue of this company, as appearing in its Profit and loss account, is Rs.11,12,78,745/-, whose break up is given in Note No.15 as consisting of `GIS/CAD and Software Services’. Page 319 of the paper book records Note No.23 to the Annual accounts of this company with the heading “Earnings in Foreign Currency on account of Exports of Software Services” amounting to Rs.8,66,06,632/-. This shows that out of total revenue of this company amounting to Rs.11.12 crore, Software services contribute Rs.8.66 crore, which is roughly 78% of the total revenue. This fact was also brought by the assessee to the notice of the TPO as has also been extracted at page 30 of his order. As opposed to this, the assessee is not rendering any Software services to its AE. The only services rendered by it are Engineering. It is further observed from the Annual report of this company that no segmental information is available, which could throw light on the operating costs in respect of the revenues of this company from ITA No.204/PUN/2022 MAN Energy Solutions India Private Limited 19 Engineering services de hors Software services. Since the assessee is not providing any Software services and the software services of this company constitute around 78% of its revenue and further that no segmental information is available, we hold that this company cannot be treated as comparable. We, therefore, order to exclude it from the list of comparables. The impugned order on this issue is set-aside and the matter is remitted to the file of the AO/TPO for re-determining the ALP of the international transaction of `Design Engineering Services’ by excluding Aabsys Information Technology Pvt. Ltd. from the list of comparables. Needless to say, the assessee will be allowed an adequate opportunity of hearing. 18. In the result, the appeal is partly allowed. Order pronounced in the Open Court on 13 th January, 2023 Sd/- Sd/- (PARTHA SARATHI CHAUDHURY) (R.S.SYAL) JUDICIAL MEMBER VICE PRESIDENT पुणे Pune; िदनांक Dated : 13 th January, 2023 Satish ITA No.204/PUN/2022 MAN Energy Solutions India Private Limited 20 आदेश की ितिलिप अ ेिषत/Copy of the Order is forwarded to: 1. अपीलाथ / The Appellant; 2. थ / The Respondent; 3. The DRP-3, Mumbai-1, DRP-3, Mumbai-2, DRP-3, Mumbai-3 4. िवभागीय ितिनिध, आयकर अपीलीय अिधकरण, पुणे “C” / DR ‘C’, ITAT, Pune 5. गाड फाईल / Guard file आदेशानुसार/ BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलीय अिधकरण ,पुणे / ITAT, Pune Date 1. Draft dictated on 12-01-2023 Sr.PS 2. Draft placed before author 13-01-2023 Sr.PS 3. Draft proposed & placed before the second member JM 4. Draft discussed/approved by Second Member. JM 5. Approved Draft comes to the Sr.PS/PS Sr.PS 6. Kept for pronouncement on Sr.PS 7. Date of uploading order Sr.PS 8. File sent to the Bench Clerk Sr.PS 9. Date on which file goes to the Head Clerk 10. Date on which file goes to the A.R. 11. Date of dispatch of Order. *