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Policy Shaping in the Indian IT Industry: Recommendations by NASSCOM on Transfer Pricing, 2014-2016

Posted by Pavishka Mittal at Jul 29, 2016 07:55 AM |
This is the final part of a series of three blog posts, authored by Pavishka Mittal, tracking the engagements by NASSCOM and iSPIRT in suggesting and shaping the IT industry policies in India during 2006-2016. This post aims to explain the law of transfer pricing in India, and the suggestions made by NASSCOM regarding the same. Transfer pricing is regarded as one of the most controversial operations of multinationals resulting in tax avoidance and arbitrage.

 

1. Introduction

2. Method of Operation of Tax Avoidance through Invalid Transfer Prices

3. The Law of Transfer Pricing in India

4. Recommendations by NASSCOM in its Pre-Budget Memorandum, 2014-2015

5. Recommendations by NASSCOM in its Pre-Budget Memorandum, 2015-2016

6. Recommendations by NASSCOM in its Pre-Budget Memorandum, 2016-2017

7. Endnotes

8. Author Profile


1. Introduction

The following blog post, the third part in the series on ‘Policy Shaping in the Indian IT Industry’ aims to explain the law of transfer pricing in India and the suggestions made by NASSCOM regarding the same. Transfer pricing is regarded as one of the most controversial operations of multinationals resulting in tax avoidance and arbitrage. The blog post proceeds with explaining how transfer pricing is used by MNCs to avoid tax. The applicable legislations and government notifications are stated to better understand the policy recommendations. The law discussed is applicable to all business concerns, including the IT industry. Judicial development as to tests for valid comparables, arms length prices discussed is with particular reference to the software industry.

 

2. Method of Operation of Tax Avoidance through Invalid Transfer Prices

When an entity of a multinational organization sells goods, provides services etc to another entity of the same organization in another country, the price charged for these goods/services is called ‘transfer price’. Since transactions involving transfer pricing are between controlled or related legal entities within an enterprise, these prices may be entirely arbitrary and completely unrelated to the costs incurred in the supply of these goods/services. This is done to transfer profit made in a jurisdiction which has higher taxes to another entity of the same organization in another jurisdiction where taxes are low. Essentially, revenue is shifted to lower profits in a division of an enterprise located in a country that levies high income taxes and raise profits in a country that is a tax haven that levies no (or low) income taxes causing concern for government taxing authorities. The MNC as a whole maintains higher profits in the form of tax saving. Ideally, a transfer price should match either what the seller would charge an independent, arm's length customer, or what the buyer would pay an independent, arm's length supplier. Transfer pricing, also referred to as base erosion and profit shifting (BEPS), is a major tool for corporate tax avoidance. The Organisation for Economic Cooperation and Development (OECD) has fairly comprehensive guidelines which have been adopted with some modification by many countries.

 

3. The Law of Transfer Pricing in India

The Finance Act 2012 rendered domestic transactions between related entities also subject to the law of transfer pricing, to avoid tax arbitrage between states.

Sections 92 to 92F of the Income Tax Act 1961, largely based on the OECD’s guidelines, deal with the law of transfer pricing for intra-group cross border and specific domestic transactions. Income or expenses arising from these international or specified domestic transactions have to be computed according to the principles applicable for the determination of the arms length price. Section 92F defines an Arms Length Price as the price applied, or proposed to be applied to transactions between persons other than associated enterprises in ‘uncontrolled conditions’ [1].

The concept of a range of values representative of an Arms Length Price (ALP) is not acceptable under Indian law, a single price has to be submitted by the taxpayer by the calculation of the arithmetic mean in case of multiple values. Range benefit percentage, applicable in differences between the transfer price and the ALP, is released for each individual industry, starting from FY 2012-13. Since the burden lies on the taxpayer to prove that the deemed Transfer price is the ALP, he is required to maintain documents and information on an annual basis as specified under Rule 10D of the Income Tax Rules, 1962. Section 10D does not have to be complied with for international transactions below INR 10 million and specified domestic transactions below INR 50 million. However, the taxpayer should possess sufficient data to substantiate the ALP. Safe harbour rules, to be released by the CBDT, would obviate the need for companies to carry detailed comparability and benchmarking exercises. In Vanenburg Group B.V. and Dana Corporation, the Authority for Advance Rulings held that income not subject to tax in India would not have to comply with TP regulations of India. However, the same does not extend to entities enjoying a tax holiday in India. Thus, the transfer pricing regulations would have to be complied with by IT firms in SEZ’s etc. The use of foreign comparables is not permitted under Indian law.

 

4. Recommendations by NASSCOM in its Pre-Budget Memorandum, 2014-2015

In the pre-budget memorarandum on transfer pricing issues, published on June 2014, NASSCOM made the following recommendations [2]:

  1. Use of Multiple Year Data: Current Indian TP regulations, Rule 10B (4) of the Income tax Rules 1962 (Rules) provide for use of data of the financial year in which the international transaction has been entered into. It further permits use of multiple year data (period not being more than two years prior to such financial year), if such data reveals facts which could have an influence on the determination of transfer prices in relation to the transactions being compared. NASSCOM argued that single year data may not adequately reflect the business conditions, performance of the taxpayer and multiple year data is useful to even out the fluctuations caused by business, economic and product life cycle. Further, if relevant data is not available in the public databases at the time when the benchmarking exercise is undertaken, multiple/prior year data should be accepted. Relevant clarifications should be incorporated in the regulations that clearly permit use of multiple year data for comparability analysis.

  2. Use of Interquartile Range instead of Arithmetic Mean: Indian transfer pricing regulations stipulate an arithmetic mean of the margins of all comparables to determine the arm's length margin in case more than one comparable is identified. It was argued that Arithmetic mean of margins leads to a skewed determination of arm’s length margins as it is influenced by outliers. While median is acceptable globally, inter-quartile range is also used in many countries as the outcome is less sensitive to extremes in the sample. The TP regulations be amended to permit application of the concept of an arm’s-length range of prices, similar to provisions contained in the OECD regulations or allow use of inter quartile range as those of other developed nations which would be more indicative of market realities.

  3. Retention of Tolerance Band as Standard Deduction: The newly inserted subsection 2A to section 92C through the Finance Act 2012 with effect from 1st April 2002 clarifies that the benefit of 5 % is not a standard deduction and overturns the laws as interpreted by various Tribunals. The tolerance band limits have themselves been amended to the price at which the international transaction or specified domestic transaction has actually been undertaken, provided that the transaction price does not exceed one per cent, in case of wholesale traders; and does not exceed three per cent, in all other cases. NASSCOM recommended that since the law requires the arm’s length price to be the arithmetical mean and does not prescribe inter quartile range which is a globally accepted best practice, the provision of tolerance band as standard deduction be retained.

  4. Certain and Consistent Guidelines should be Issued by the Board after Giving Due Consideration for the following factors:

    1. Inter-Company Loans: there should not be requirement for charging interest loans which a) are quasi-equity in nature (these loans should be regarded as equity), and b)are provided out of surpluses of the Indian parent. Global practices for benchmarking interest rates to be charged, if any, by considering comparable interest rates prevailing in the borrower’s country.

    2. Guarantee / Letter of Comfort / Undertaking: Arms length price should be determined in terms of the future benefits to be received by the company furnishing the guarantee and the business rationale involved. The association of the parent company for securing contracts as a group should not be construed as resulting in international transactions between the Indian Company and the overseas subsidiary.

    3. Headquarter and Regional Headquarter Cost Allocations: There is lack of data in the public domain as to industry benchmarks related to management payouts, guidance as to specific documentation should be given.

    4. Adjustments for Differences in Functions and Risks: Clear guidelines on carrying out economic and risk adjustments with proper methodology required. Due consideration should be awarded to business strategies and commercial realities such as market entry strategies, non-recovery of initial set-up costs and other legitimate business peculiarities while determining the arm’s length pricing.

    5. Guidance as to the Meaning of Restructuring Required to be Laid down: Section 92B considers a transaction of business restructuring or reorganization as an international transaction. However, there is no definition of restructuring or reorganization in the Act. Further, there is no clarity as to whether a transaction of business restructuring or reorganization would need to be reported if the act of business restructuring results in the enterprises becoming an AE.

    6. Invalidity of Extension of Transfer Pricing Provisions to Corporate Actions: Transactions such as issue, buyback and redemption of shares are capital transactions and are not subject to income tax, except in the case of capital gains arising out of these transactions. The understanding is that these corporate actions are initiated by the shareholders of the company and do not have a bearing on the taxable income of the entity. However, the Revenue without any rationale has been classifying these as international transactions which have to be benchmarked and documented. If this is continued, transactions such as issue of bonus shares (ratio of bonus issue), and rate of dividend declared, or discount/premium on issue or redemption of preference shares etc. may also get covered within the purview of transfer pricing provisions. NASSCOM stated that guidance as to the rationale of this transfer pricing application is necessary. Further, guidance as to the terms and conditions to be complied with in instances of issue, buyback or redemption of share to mitigate the exposure to transfer pricing litigation is required.
  5. Enlarged Scope of “International Transaction” Retrospectively: The intent of TP regulations being the reduction of tax avoidance, the provision to bring the business restructuring transactions within the transfer pricing ambit should be withdrawn. The definition of intangibles being too broad and open for interpretation needs to be rationalized. Guidance as to the appropriate methodologies to evaluate ALPs of intangibles is required. Given the increasing quantum of cross border financing and inter-company lending etc., appropriate guidance should be issued in this regard. Further, the amendment, being substantive in nature, shall be made prospective to achieve certainty and stability.

  6. Upward Revision in Monetary Threshold of TP Documentation Required: For aggregate value of transactions exceeding INR 10 million, TP documentation is required. This monetary threshold has not been altered since the introduction of TP Regulations in the Income-tax Act, 1961. Due to the increasing quantum of cross border transactions, the prescribed limit is low considering the rise in the value of software traded, requiring almost all companies in this sector to maintain onerous documentation.

  7. Penalty Provisions: Penalty provisions have been made more stringent vide Finance Act 2012. Transfer Pricing Officer can now ask the taxpayer to pay penalty under section 271AA at the rate of 2 per cent of value of international transaction due to failure to keep information in addition to another 2 per cent under section 271G for not furnishing the information besides regular penalty under section 271(1)(c) of the Act. NASSCOM suggested that the penalty should be restricted to tax in dispute and not linked to the value of transaction.

  8. Domestic Transfer Pricing: Section 92BA has been inserted vide Finance Act 2012 by which the coverage of transfer pricing has been expanded to include certain 'Specified Domestic Transactions' if the aggregate amount of all such transactions entered by the assessee in the previous year exceeds Rs. 5 crores in the previous year. NASSCOM suggested that the threshold limit be extended to Rs. 15 crore.

    The term ‘Specified Domestic Transactions’ has a very wide coverage and a relatively low monetary threshold for exemption. It would include any expenditure in respect of which payment has been made or is to be made to a related party referred to in clause (b) of sub-section (2) of section 40A of the Act. Since such expenditure would include capital expenditure, a clarification as to the applicability of these provisions to revenue expenditure only has to be made. Further, the scope of the provision is not in sync with the SC decision in the case of Glaxo SmithKline. The Supreme Court had held that TP should be applicable to transactions between a profit making and a loss unit / company and between units / assesses having different tax rates. Other than the scenarios contemplated above, a corresponding adjustment should be allowed and hence provided for on the statute.

    This amendment also covers a scenario wherein the payment of remuneration by the company to its director or relative of such directors is also required to be at arm's length which casts an onerous responsibility on the company vis - à- vis justification of the arm's length nature of such payments.

    A clarification as to ambiguity in relation to the definition of the term ‘closely connected persons’ as described in section 80IA (10) of the Act is required. Guidance for benchmarking directors remuneration should be provided. Further, clarity should be provided with regard to inter-unit allocation of costs between eligible and non-eligible units i.e. whether corporate cost allocations from a non-tax holiday unit of a company to a tax holiday unit of the same company would get covered within the provisions of Section 80-IA and consequently need to be reported as a specified domestic transaction.

    The Advance Pricing Agreement (APA) provisions, only applicable to only international transactions presently, should be extended to domestic transactions governed by TP regulations.

  9. Changes in Dispute Resolution Panel: The DRP issues directions with the stated objective of keeping the issues alive since the Revenue has filed appeals before the High Court / Supreme Court which is contrary to the objective of dispute resolution. It is structurally suffering from impaired independence owing to the fact that the DRP is a constitution of CIT/DIT. It is not able to fulfil its central purpose of dispute resolution due to the fact that CIT/DIT has to discharge their regular duties in addition to these duties involving revenue collection targets. NASSCOM recommended that DRP be constituted as an ‘independent’ judicial board with panelists from economic, legal and accounting backgrounds having knowledge of income tax matters. To avoid actual or perceived bias, specific provisions may be inserted to restrain a jurisdictional Commissioner/ Director from being appointed as a member of the DRP hearing cases falling within his/ her jurisdiction. Further cases which are covered by decisions of courts and are found to be without merit should be withdrawn suo-moto.

  10. Absence of Article 9(2) in DTAAs with Belgium, Germany, France, Singapore, and the Republic of Korea: The Tax administration has to follow the practice of not admitting cases of economic double taxation under Mutual Agreement Procedure and Advance Pricing Agreements. Negotiation of bilateral APAs (in case an Indian entity has associated enterprises in such countries), MAPs are disallowed in such countries. Though the OECD has stated that two sovereign states can mitigate double taxation arising out of TP adjustments through invoking Article 25(3), India has had reservations with such an approach on the ground OECD Model Tax Conventions do not represent internationally agreed guidance. India suggested an Inter-Governmental Commission with a balanced representation from the Governments of developing and developed countries to take decisions with regard to these provisions. To ensure continued trade with these countries, advice is needed from the government on how to address challenges arising from the absence of these provisions in tax treaties.

  11. Rollback for APAs: Currently an application for APA, once agreed upon is prospective in the sense that they are applicable for the years agreed upon in the agreement. It is recommended that once an APA is finalized, the tax payer should be allowed to close the open years for which assessment proceedings have not yet been initiated and years for which assessment or appeal proceedings are pending before the TPO, DRP/CIT (A), having regard to the agreement reached in the APA.

  12. Safe Harbour Rules and its Impact on Assessments: In contrast to APAs, the Safe harbour notifications have had limited uptake.

    1. Rationalization of Margins: The current margins varying from 20 to 30 percent depending on the characterization of the entity are very high and are not indicative of ALPs. More feasible margins should be declared after taking into account the rationalization of margins by the higher appellant authority. The imbalance APA and the Safe Harbour scheme has to be restored, especially for small and medium enterprises, to reduce unnecessary pressure on the APA system as the preferred route.

    2. Overlaps between R&D and Software Development: Both are separate categories having different limits under the safe harbour rules. The substantial overlaps between the above activities due to a very fine line of distinction between the two are not reduced through the present ambiguous definitions, subject to interpretation. Due to the exclusion of research and development from software development, information technology enabled services and knowledge process outsourcing services in the draft rules, new litigation on the classification of such service providers would arise. NASSCOM, thus, recommended that both the categories be merged and revised safe harbour rules be notified.

  13. Levy of Penalty on Single Transaction to be Rationalized: Since penalty provisions are implemented with the intention to get the tax payer to adhere to the provisions of the Act rather than cause considerable hardship, only single penalties should be levied to avoid duplication of penalty. In the event that a tax payer has not maintained the documents, such taxpayer should be penalized only under section 271AA and not under both section 271 AA and section 271 G. Further, penalty should not be imposed for non-reporting of transactions which gets covered under the purview of international transaction by virtue of retrospective amendments, due to impossibility of performance.

  14. Non-Processing of Refunds when Notice Issued u/s 143(2): The Finance Act 2012 has inserted clause 1(D) to section 143 of the Act, specifying that the processing of a return under section 143(1) of the Act shall not be necessary, where a notice has been issued under section 143(2) of the Act. Though the language of the aforesaid provision suggests that it is directory and not mandatory in nature, however, it has been observed that the Tax Office is not processing any refunds under section 143(1) because of this provision. Further, in case of the aforesaid entities, a draft assessment order is passed and typically it takes almost one year more to get the final assessment order. Following the above, excess taxes if any paid over the final tax liability by any entity gets stuck for ~ five financial years. In case the final assessment order is high or there is an undue demand, assesses are required to pay further taxes without getting the refund originally due causing undue hardship to assessees. NASSCOM recommended that the clause prescribing a time limit of four years from the end of the financial for the completion of assessment of entities to which transfer pricing provision applies be deleted. This provision is also causing undue pressure on the Revenue in the form of interest liability for a longer period.

 

5. Recommendations by NASSCOM in its Pre-Budget Memorandum, 2015-2016

In addition to repeating the key contentious issues highlighted in the previous pre-budget memorandum, some additional issues were brought up [3]. NASSCOM requested the government to make the revised to be issued Transfer Pricing Policy retrospective in nature and in sync with global practices. The Finance Minister had announced significant changes in Transfer Pricing rules and policy in the July 2014 Budget with an aim to address disputes and litigations around estimating ALPs.

  1. Applicability of Transfer Pricing on Companies Eligible for Tax Holiday u/s 10A/10AA: NASSCOM contended that the assessing officers are “arbitrarily and/or mechanically” invoking the transfer pricing provisions even in cases where the assessees are eligible for tax relief’s u/s 10A/10AA or have related party transactions with well-regulated tax jurisdictions. It recommended that transfer pricing provisions shall not be invoked against tax payers:
    • who are entitled to tax holidays (section 10A/10AA reliefs) in India,
    • In respect of transactions with countries as listed in a “white list” (to be prescribed) which shall include jurisdictions having higher tax rates/best tax practices.

  2. Filing of Form 3CEB by Foreign Companies: As per the existing Indian Transfer pricing provisions, there are conflicting views, on whether, the foreign companies are required to file Transfer Pricing report in Form 3CEB in India, even if income subject to an international transaction is not chargeable to tax in India or where the transaction entered with the foreign entity is already reported by the Indian entity in its Form 3CEB as per the provisions of the existing Indian transfer pricing law. In principle, the foreign residents not having a permanent establishment in India should not be required to file Transfer Pricing report (Form 3CEB) in India keeping in view the compliances done by the Indian entity. NASSCOM recommended the government to clarify that that the provisions of Indian transfer pricing would not apply to foreign companies/foreign residents unless they have a permanent establishment in India.

 

6. Recommendations by NASSCOM in its Pre-Budget Memorandum, 2016-2017

In addition to repeating the key contentious issues highlighted in the previous pre-budget memorandum, some additional issues were brought up [4]:

  1. Changes Proposed in the Rules for the Computation of the Arms Length Price: The draft rules released continue to deviate from global norms and associated statistical concepts. NASSCOM stated that the prescribed percentile range of 35th to 65th, mandating minimum number of comparables to qualify for use of range and multiple year data will not have a significant impact on the current situation.

    • Applicability of Range and Multiple Year Data on Selected Methods: The rules restrict the application of the following to Transactional Net Margin Method, Resale Price Method and Cost Plus Method used to determine ALPs. This rule, being in contrast to international practice wherein no such restrictions on the method to be applied for using range and multiple year data for determining AlPs exist should be removed. New rules which do not confine the use of range, multiple year data to the above methods should be released.

    • Number of Comparables for Applicability of “Range” Concept: The rules prescribe a minimum of 6 comparable companies, based on the similarity of their functions, assets and risks (FAR) with the tested party for the adoption of “range” concept which may be difficult for all transactions due to constraints such as data availability, business comparability, quantitative comparability, etc. Consequently, most taxpayers may not be able to adopt the range concept. Further, if during the audit stage the number of final comparables fall below the mandated 6, due to rejection of certain comparable companies, the method of determining ALP will change from “Range” concept to Arithmetic mean which will add to complexities and increased litigation. NASSCOM stressed that the OECD Guidelines do not outline a minimum number of comparable entities to be considered for calculation of range. NASSCOM recommended that the rules should not specify any minimum number of comparable entities as a prerequisite for the use of “range” concept. Alternatively, it suggested a reduction in minimum requirement of comparable companies for application of the range concept from 6 to 4 comparable transactions. A clarification may be issued as to the applicability of the arithmetic mean concept in case the number of comparables fall below 4. Further, guidance may be provided regarding the selection of appropriate comparables considering the various constraints thereby allowing flexibility to the taxpayers in preparing reliable set for comparable companies.

    • “Range” between 35 to 65 Percentile instead of Inter-Quartile Range: The rules provide a range between 35 to 65 percentile of the data set which may not provide relative reliability on comparable price. The range of 35th to 65th percentile is narrow than interquartile range 25th to 75th percentile, restricting the set of finally selected comparables. Further, use of inter-quartile range (25th to 75th percentile) is amongst the globally accepted best practice and also closer to economic realities wherein prices, and or margins, are compared to those within a range and not at to a particular point. NASSCOM recommended that the rules be modified to provide that the interquartile range from the 25th to 75th percentile would be used to test the arm’s length nature of the transaction.

    • Use of Multiple Rear Data: Rule 10B(4) as notified provides that the data to be used in analyzing the comparability of an uncontrolled transactions with an international transaction or a specified domestic transaction will be:

      • the data relating to the current year ; or
      • the data relating to the financial year immediately preceding the current year, if the data relating to the current year is not available at the time of furnishing the return of income by the assessee , for the assessment year relevant to the current year.

      Further data of the current year, shall be used during the transfer pricing audit if it becomes available at the time of assessment.

      The above para prescribes the use of “Multiple year data” concept in case of only three methods viz. the Transactional Net Margin Method, Resale Price Method, or Cost Plus Method. NASSCOM highlighted that the requirement of use of the financial data of comparable companies which is not available in the public domain on or before the specified date, but which becomes available subsequently by the time of assessment, will not be in line with the contemporaneous documentation requirement under the Indian TP provisions. It is not clear whether at the time of assessment, the data of the current year can be used by both the taxpayer and the department. It further highlighted that the illustration to the notification provides for the use of the data of the current year and immediately preceding 2 years in contrast to the notification providing for the use of data of the current year or the data relating to the financial year immediately preceding the current year contributing to ambiguity. Also use of data of current year and the 2 preceding years is not in line with the global best practices which allow three years data to be used excluding current year’s data. It will be an issue for overseas tested parties, which follow rules for data as per their respective jurisdictions ( eg. previous three years data) to get and use current year data.

      NASSCOM recommended that the taxpayer should be allowed to use data of prior three years (not including current year), which is available in the database at the time of preparation of TP documentation. Also it should be extended to CUP, PSM and other methods as well. The data of current year can be used only if it is available at the time of preparation of TP documentation and not subsequently at the time of assessment. The provision that use of data of the current year can be used during the transfer pricing assessment if it becomes available should be done away with as by that time pricing and commercial arrangements would have already been set keeping in mind the data available. The benefit of multiple year data should also be made available to past years whose assessment proceedings have not yet been completed i.e for FYE 2012, FYE 2013 and FYE 2014.

  2. Concerns on APA Roll Back Provisions in cases of DTAAs Comprising Article 9(2): Rule 10 MA(3) of the APA rollback rules provides as follows: “Notwithstanding anything contained in sub-rule (2), rollback provisions shall not be provided in respect of international transaction for a rollback year, if – ….(ii) the application of rollback provisions has the effect of reducing the total income or increasing the loss, as the case may be, of the applicant as declared in the return of income of the said year.

    NASSCOM contended that the above position of rollback is not justified in the case of bilateral APA applications wherein the treaty itself provides for corresponding deduction in the other contracting state for avoidance of double taxation, i.e., Article 9(2). It recommended that suitable modifications be made in the present rules, to allow rollback provisions which have the effect of reducing the total income or increasing the loss of the applicant for the relevant year.

  3. Risk Based Assessment Audits: NASSCOM stated that in relation to transfer pricing audits, presently a transaction value threshold is being adopted by the Revenue for case selection; which should be replaced by an objective risk based assessment approach which may be set out through instructions/circulars on an annual basis. The recent Instruction No. 8/2015 issued on October 16th, 2015 sets out that the Assessing Officer should apply more discretion in referring cases for scrutiny by the Transfer Pricing Officer. It would be helpful if some criteria or parameters are laid out based on which a referral could be made. Further, a transaction value based audit approach is not always an indicator of the need for scrutiny for such transactions and should be supplemented with some qualitative criteria for case selection.

  4. Safe Harbour Rules Not Effective for the Sector - Need for Rationalizing the Margins: Currently, the margins notified under the safe harbour vary from 20 to 30 percent depending on the characterization of the entity, which are high and are not reflective of market realities. Redefining safe harbour margins, which have so far remained ineffective, should be undertaken on a priority to encourage uptake by the Industry. Emphasizing the importance of safe harbours for easing the regulatory compliance for SMEs, NASSCOM recommended more practical and feasible margins (that are reflective of ALPs) be notified under the safe harbour rules, especially after taking into account the rationalization of margins by the higher appellant authority.

  5. Continued Aggressive Assessments: The Indian IT Industry has been facing several unwarranted assessments on account of transfer pricing adjustments. Tax authorities continue to pose problems by adopting different criteria of selecting comparables for benchmarking. Further, filters adopted by the authorities across jurisdictions are ignoring business conditions. Tax authorities use companies earning supernormal profits (margins 50% to 80%) and industry giants as comparables. Recent rulings and judgments passed in favour of the taxpayers are continued to be overlooked.

  6. Ambiguities in Domestic Transfer Pricing: The Finance Act 2015 increased the threshold for applicability of Domestic Transfer Pricing from INR 5 crores to INR 20 crores. However ambiguity around some provisions like directors’ remuneration and associated comparables continue. Domestic transfer pricing provisions should apply only in transactions involving income escaping tax and not in case tax neutral transactions i.e. where there is a transaction between two entities both of which pay tax, such a transaction will be tax neutral since a deduction in the hands of one entity will automatically be taxed in the hands of the other entity. Hence in such a case, domestic transfer pricing provisions should not apply and there should be a specific exemption introduced in the law to this effect. NASSCOM repeated its concerns highlighted in the previous pre- budget memorandum.

 

7. Endnotes

[1] It prescribes the following methods for its computation:

  • Comparable uncontrolled price (CUP) method,
  • Resale price method (RPM),
  • Cost plus method (CPM),
  • Profit split method (PSM),
  • Transactional net margin method (TNMM), and
  • Such other methods as may be prescribed.

As notified by the CBDT, any such other method may be used which details the price for uncontrolled transactions between unassociated companies in similar circumstances after the consideration of all relevant facts.

[2] See: http://www.nasscom.in/sites/default/files/policy_update/Transfer-Pricing_NASSCOM-Jun14.pdf.

[3] See: http://www.nasscom.in/sites/default/files/policy_update/NASSCOM%20pre-budget%20recommendations%20-%20Transfer%20Pricing.pdf..

[4] See: http://www.nasscom.in/sites/default/files/policy_update/NASSCOM-pre-budget-recommendations-Transfer-Pricing.pdf.

 

8. Author Profile

Pavishka Mittal is a law student at West Bengal National University of Juridical Sciences, Kolkata and has completed her second year. She takes contemporary dance very seriously and hopes to contribute to the dance community in India. Other than dancing, she indulges in binge-watching in her spare time.

 

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