Instruction No. 15/2015
F.No. 500/9/2015-APA-11
Government of India
Ministry of Finance
Department of Revenue
Central Board of Direct Taxes
Foreign Tax and Tax Research Division-I
APA-II Section
Government of India
Ministry of Finance
Department of Revenue
Central Board of Direct Taxes
Foreign Tax and Tax Research Division-I
APA-II Section
New Delhi, dated 16th October, 2015
Subject: Revised and Updated Guidance for Implementation of Transfer Pricing Provisions-Regarding
The provisions relating to transfer pricing are contained in Sections 92 to 92F of the Income-tax Act (hereinafter referred to as 'the Act'). These provisions came into force w.e.f. Assessment Year 2002-2003 and have seen a number of amendments over the years, including the insertion of Safe Harbour and Advance Pricing Agreement provisions and the extension of the applicability of transfer pricing provisions to Specified Domestic Transactions.
2. In terms of the provisions, any income arising from an international transaction or specified domestic transaction between two or more associated enterprises shall be computed having regard to the Arm's Length Price. Instruction No. 3 was issued on 20th May, 2003 to provide guidance to the Transfer Pricing Officers and the Assessing Officers to operationalise the transfer pricing provisions and to have procedural uniformity. Due to a number of legislative, procedural and structural changes carried out over the last few years, Instruction No. 3 of 2003 is being replaced with this Instruction to provide updated and adequate guidance on the transfer pricing provisions pertaining to international transactions.
3. Reference to Transfer Pricing Officer (TPO)
3.1 The power to determine the Arm's Length Price (ALP) in an international transaction is contained in sub-section (3) of Section 92C of the Act. However, Section 92CA of the Act, inter-alia, provides that where the Assessing Officer (AO) considers it necessary or expedient so to do, he may refer the computation of ALP in relation to an international transaction to the Transfer Pricing Officer (TPO). Sub-section (3) of Section 92CA provides that the TPO, after taking into account the material available with him shall, by an order in writing, determine the ALP in accordance with sub section (3) of Section 92C of the Act. Sub-section (4) of Section 92CA provides that on receipt of the order of the TPO, the AO shall proceed to compute the total income of the taxpayer in conformity with the A LP determined by the TPO. Thus, while the determination of ALP, wherever reference is made to him, is required to be done by the TPO under sub section (3) of Section 92CA read with sub-section (3) of Section 92C, the computation of total income in conformity with the A LP so determined by the TPO is required to be done by the AO under sub-section (4) of Section 92C read with sub-section (4) of Section 92CA of the Act.
3.2 In order to make a reference to the TPO, the AO has to first satisfy himself that the taxpayer has entered into an international transaction with an associated enterprise. One of the sources from which the factual information regarding international transaction can be gathered is Form No. 3CEB filed by the taxpayer, which is in the nature of an accountant's report containing basic details of an international transaction entered into by the taxpayer during the yea r and the associated enterprise with which such transaction is entered into, the nature of documents maintained and the method followed. Thus, the primary details regarding such international transactions would normally be available in the accountant's report. The AO can arrive at a prima facie belief on the basis of these details whether a reference to the TPO is necessary. No detailed enquiries are needed at this stage and the AO should not embark upon scrutinising the correctness or otherwise of the price of the international transaction at this stage . However, in the following situations, the AO must, as a jurisdictional requirement, record his satisfaction that there is an income or a potential of an income arising and/or being affected on determination of the ALP of an international transaction before he proceeds to determine the ALP under sub-section (3) of Section 92C of the Act or to refer the matter to the TPO to determine the A LP under sub-section ( 1) of Section 92CA of the Act:
(a) where the taxpayer has not filed the Accountant's report under Section 92E of the Act but international transactions undertaken by it come to the notice of the AO;
(b) where the taxpayer has not declared one or more international transaction in the Accountant' s report filed under Section 92E of the Act and the said transaction or transactions come to the notice of the AO; and
(c) where the taxpayer has declared the international transaction or transactions in the Accountant's report filed under Section 92E of the Act but has made certain qualifying remarks to the effect that the said transaction or transactions are not international transactions or do not impact the income of the taxpayer.
In all the above situations, the AO must provide an opportunity of being heard to the taxpayer before recording his satisfaction or otherwise.
3.3 The exercise of finding out whether any income arises and/or is affected or potentially arises and/or is potentially affected by the determination of the ALP of the international transaction would certainly be a factor, in addition to other factors, in determining whether or not it is necessary or expedient to refer the matter to the TPO . In case no objection is raised by the taxpayer to the applicability of Chapter X [Sections 92 to 92F] of the Act, then the prima-facie view of the AO would be sufficient before referring the international transaction to the TPO for determining the ALP. However, where the applicability of Chapter X [Sections 92 to 92F] of the Act to the facts of the taxpayer's case is objected to, the assessee's objection should be considered and specifically dealt with so as to make sufficient compliance with the principles of natural justice.
3.4 Before making a reference to the TPO, the AO has to seek the approval of the Principal Commissioner or Commissioner as provided in the Act. The provisions of Section 92CA of the Act, inter-alia, refer to the international transaction. Hence, all international transactions, in relation to which a reference to the TPO is considered necessary, have to be explicitly mentioned in the letter through which the reference is being made.
3.5 Since transfer pricing cases are now being selected for scrutiny on the basis of risk parameters, there is no requirement of selecting a transfer pricing case for scrutiny on the basis of the value of the international transaction. Consequently, there would be no requirement of referring an international transaction to the TPO for determination of its ALP merely because the value of the international transaction is above a particular limit. In particular, where a case has been selected for scrutiny only on non TP issues and the case also involves international transactions with AEs, the case shall not be referred to the TPO irrespective of the value of the international transaction or aggregate value of all international transactions. The only exception to this would be a case selected for scrutiny on non-TP parameters where the AO comes to know that the taxpayer has entered into international transaction or transactions but the taxpayer has either not filed the Accountant's report under Section 92E or has not disclosed the said international transaction or transactions in the Accountant's report filed. In such exceptional situations, the AO may refer the matter to the TPO after providing an opportunity of being heard to the taxpayer.
3.6 Since the case will be selected for scrutiny before making the reference to the TPO, the AO may proceed to examine other aspects of the case during the pendency of assessment proceedings but must wait for the report/order of the TPO on the value of international transactions before making final assessment.
4. Role of Transfer Pricing Officer
4.1 The role of the TPO begins after a reference is received from the AO. In terms of Section 92CA of the Act, this role is limited to the determination of the ALP in relation to international transaction(s) referred to him by the AO. However, if any other international transaction comes to the notice of the TPO during the course of the proceedings before him, then he is empowered to determine the ALP of such other international transactions also by virtue of sub-sections (2A) and (2B) of Section 92CA of the Act. The transfer price has to be determined by the TPO in terms of Section 92C of the Act. The price has to be determined by using any one of the methods stipulated in sub-section ( 1) of Section 92C and by applying the most appropriate method referred to in sub-section (2) thereof. There may be occasions where application of the most appropriate method provides results which are different but equally reliable. In all such cases, further scrutiny may be necessary to evaluate the appropriateness of the method, the correctness of the data, weight given to various factors and so on. The selection of the most appropriate method will depend upon the facts of the case and the factors mentioned in rules contained in Rule 1OC. The TPO, after taking into account all relevant facts and data available to him, shall determine the ALP and pass a speaking order. The TPO, being an Additional/ Joint CIT, shall obtain the approval of the jurisdictional CIT (Transfer Pricing) before passing the order. On the other hand, the TPO, being a Deputy/Assistant CIT, shall obtain the approval of the jurisdictional Additional/ Joint CIT before passing the order. The jurisdictional CIT (TP) should assign a limited number of important and complex cases, not exceeding 50, to the Additional/ Joint CsiT (TPOs) working in the same jurisdiction. For the selection of such important and complex cases by the CsiT(TP), the concerned CCsiT (International Taxation) shall frame appropriate guidelines.
4.2 The order passed by the TPO should contain details of the data used, reasons for arriving at a certain price and the applicability of methods. It may be emphasised that the application of method including the application of the most appropriate method, the data used, factors governing the applicability of respective methods, computation of price under a given method will all be subjected to judicial scrutiny. It is, therefore, necessary that the order of the TPO contains adequate reasons on all these counts. Copies of the documents or the relevant data used in arriving at the arm's length price should be made available to the AO for his records and use at subsequent stages of appellate or penal proceedings.
4.3 In addition to the above, the TPO is required to carry out the Compliance Audit of the Advance Pricing Agreements (APAs) entered into by the Board and the taxpayers in accordance with Rule 10 P of the Income-tax Rules.
4.4 The TPO is also required to play an important role in respect of Safe Harbour provisions. Whenever a reference is made to the TP O under sub rule (4) or sub-rule ( 10) of Rule 10 TE of the Income-tax Rules, the TPO has to carefully examine all the facts and circumstances of the taxpayer's exercise of an option for Safe Harbour and pass an order in writing as mandated in sub-rule (6) or sub-rule ( 11) of the said Rule, respectively.
5. Role of the AO after Determination of ALP
Under sub-section (4) of Section 92C of the Act, the AO has to compute the total income of the assesse having regard to the ALP determined by him under sub-section (3) of the same Section. Where the determination of ALP is done by the TPO under sub-section (3) of Section 92CA of the Act, the AO has to compute the total income of the assessee under sub-section (4) of Section 92C (read with sub-section (4) of Section 92CA) in conformity with the ALP so determined by the TPO.
6. Maintenance of Data Base
It is to be ensured by the CIT (Transfer Pricing) that the references received from the AOs by the TPOs in his jurisdiction are dealt with expeditiously and accurate record of all events connected with the whole process of determination of ALP is maintained. This record is to be maintained by each TPO in the format enclosed as Annexure -! to this Instruction. This format will serve as an important database for future action and also help in bringing about uniformity in the determination of the ALP in identical or substantially identical cases. The CsiT (TP) must ensure that the separate data maintained by all TPOs under their jurisdiction are consolidated into one report for the entire charge after the completion of each transfer pricing audit cycle
7. Applicability
The above guidance is applicable only to transfer pnc1ng provisions in respect of international transactions. Similar guidance in respect of transfer pricing provisions pertaining to specified domestic transact ions are under consideration of the CBDT. Till such time the guidance pertaining to specified domestic transactions is not issued, paragraph 3.5 of this Instruction shall apply to the effect that where a case has been selected for scrutiny on non-TP parameters and the case also involves specified domestic transact ions with AEs , the case shall not be referred to the TPO irrespective of the value of the specified domestic transaction or aggregate value of all specified domestic transactions. The only exception to this would be a case selected for scrutiny on non-TP parameters where the AO comes to know that the taxpayer has entered into specified domestic transaction or transact ions but the taxpayer has either not filed the Accountant's report under Section 92E of the Act or has not disclosed the said specified domestic transaction or transactions in the Accountant's report filed. In such exceptional situations, the AO may refer the matter to the TPO after providing an opportunity of being heard to the taxpayer.
8. This Instruction issues under Section 119 of the Act and supercedes Instruction No.3 of 2003 with immediate effect.
(Sobhan Kar)
Director (APA) ,Government of India
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FinMin sets-up meeting with FPIs & domestic financial market participants, prescribes agenda
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RBI prescribes revised guidelines for Financial Inclusion Fund, lays down revised scope
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ITR'S TRIBUNAL TAX REPORTS (ITR (Trib)) HIGHLIGHTS
F Where facts showing capital gains received by assessee duly invested in purchase of land and construction of residential house, assessee entitled to exemption : ITO v. Kanwar Deep Anand (Delhi) p. 115
F Payment of securities transaction tax by cheque and confirmation of transaction by ledger accounts, disallowance by Assessing Officer not justified : ITO v. Kanwar Deep Anand (Delhi) p. 115
F Where no evidence to show that assessee incurred expenditure for non-business purposes, payments made by cheque by companies in which assessee director and Department accepting expenditure, restriction of disallowance to 5 per cent. of credit card expenses proper : ITO v. Kanwar Deep Anand (Delhi) p. 115
F Work-over rigs falling under category of heavy goods vehicle drilling rigs, entitled to higher rate of depreciation at 40 per cent. : John Energy Ltd. v. Deputy CIT (Ahd) p. 127
F Expenditure incurred on construction in leasehold premises, capital in nature on applying test of Explanation 1 to s. 32(1) : Continental Enterprise v. ITO (Chennai) p. 260 (11-9-2015)
F Interest u/s. 234C to be computed taking date of presentation of cheque as date of payment of tax not date of realisation of cheque : Sandip Bhagat v. Asst. CIT (Delhi) p. 270 (10-9-2015)
F Mere disallowances not conclusive evidence of concealment : Tristar Intech P. Ltd. v. Asst. CIT (Delhi) p. 279 (7-9-2015)
F Payments to Employes' Provident Fund and Employees' State Insurance after due date but before due date for furnishing return of income, allowable : Tristar Intech P. Ltd. v. Asst. CIT (Delhi) p. 279
F Where application for renewal of exemption u/s. 10(23C)(vi) rejected by competent authority and matter pending before High Court, assessee cannot seek income to be considered u/s 11 : South Point Education Society v. ITO (Exemption)-II (Kolkata) p. 287 (1-9-2015)
F Where capital gains arising from transfer deemed to be applied to charitable purposes, capital asset need not be held till end of financial year : South Point Education Society v. ITO (Exemption)-II (Kolkata) p. 287
F Deduction cannot be denied on ground that area of project less than one acre on assessee fulfilling all conditions stipulated u/s. 80-IB(10) : Pushkar Construction Co. v. ITO (Ahd) p. 293 (28-8-2015)
F Where owners of four flats each less than 1500 sq.ft. combining into two flats resulting in excess in area of 1500 sq.ft. cannot be denied deduction u/s. 80-IB(10) on ground of selling flat in excess of 1500 sq. ft. : Pushkar Construction Co. v. ITO (Ahd) p. 293
F No disallowance can be made u/s. 40(a)(ia) where assessee depositing tax deducted at source in Government account before filing return of income : Pushkar Construction Co. v. ITO (Ahd) p. 293
F Where authorities failed to find whether payee included payment received from assessee as its income and paid tax on it, matter remanded for re-examination : Pushkar Construction Co. v. ITO (Ahd) p. 293
F Goodwill is an asset, assessee entitled to depreciation on goodwill : PPG Asian Paints P. Ltd. v. Asst. CIT (LTU) (Mumbai) p. 307
F Where advances received by actor and income not crystallised, advances not assessable as income, addition to be deleted : R. S. Suriya v. Asst. CIT (Chennai) p. 309
F Issues which require detailed examination and analysis cannot be rectified : Assessing Officer has no power to restore original assessment order in guise of modification u/s. 154 : Deputy DIT (Exemptions)-II v. Shadan Educational Society (Hyd) p. 318
F Deletion of addition proper on failure by Department to controvert finding that unsecured loan fully covered by interest-free funds available with assessee : Asst. CIT v. Ruksh International (Lucknow) p. 326
F Where cost of construction of tank forming integral part of effluent treatment plant, depreciation allowable at rate applicable for plant and machinery : Asst. CIT v. Ruksh International (Lucknow) p. 326
F Reconditioned machine with substantial percentage of new parts to be treated as new machine, depreciation allowable : Asst. CIT v. Ruksh International (Lucknow) p. 326
F Material date is date of installation and not date of acquisition of drum and paddle : Asst. CIT v. Ruksh International (Lucknow) p. 326
F Where son of assessee pursuing higher education in the US and no stipulation u/s. 80E that education should be in India, assessee entitled to deduction : Nitin Shantilal Muthiyan v. Deputy CIT (Pune) p. 335
F Special deduction : Condition precedent : Vertex Homes P. Ltd. v. Deputy CIT (Hyd) p. 340 (26-8-2015)
F Deduction of tax at source only where income chargeable under provisions of 1961 Act to tax : Euroflex Transmissions (India) P. Ltd. v. Asst. CIT (Hyd) p. 348
F Expenditure incurred for purchase of licence for Windows application software, revenue expenditure : Asst. CIT v. Boots Piramal Health Care Ltd. (Mumbai) p. 355
F Financial irregularities committed by employees in earlier years detected during previous year resulting in loss, expenditure allowable in current assessment year : Asst. CIT v. Boots Piramal Health Care Ltd. (Mumbai) p. 355
F Foreign exchange fluctuation loss, revenue expenditure : Asst. CIT v. Boots Piramal Health Care Ltd. (Mumbai) p. 355
F Where assessee obtaining certificate of no deduction from Assessing Officer, not required to deduct tax at source for reimbursement : Asst. CIT v. Boots Piramal Health Care Ltd. (Mumbai) p. 355
F Expenditure incurred on repair and maintenance, no new assets, revenue expenditure : Asst. CIT v. Boots Piramal Health Care Ltd. (Mumbai) p. 355
F Disqualification applicable only to co-operative banks, assessee, a co-operative society entitled to deduction : ITO v. Jamkhandi Taluka School Teachers Co-operative Credit Society Ltd. (Bang) p. 365
F Disallowance u/r. 8D can be invoked if Assessing Officer not satisfied with correctness of claim made by assessee in respect of expenditure : Aditya Birla Finance Ltd. v. Asst. CIT (OSD) (Mumbai) p. 373
F Deduction admissible in connection with issue for public subscription of shares or debentures of a company : Aditya Birla Finance Ltd. v. Asst. CIT (OSD) (Mumbai) p. 373
F Provision for leave encashment : Commissioner (Appeals) deleting disallowance holding that provision made on actuarial estimation, matter remanded for fresh examination : Aditya Birla Finance Ltd. v. Asst. CIT (OSD) (Mumbai) p. 373
F Where cost of assets allowed as application of income for charitable purpose, depreciation on assets to be allowed : ITO (E) v. Our Lady of Milagres Church (Bang) p. 380
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Quashes CCI order mechanically approving DG's 'perverse' findings & compounding 'jurisdictional error'
COMPAT sets-aside CCI's order whereby Andhra Pradesh Film Chamber of Commerce ('appellant') was penalised with Rs. 12 lakhs for entering into anti-competitive agreement with various film distributors association, restricting the release of Cinergy Independent Film Services Pvt. Ltd's ('respondent') movie 'Mausam'; Respondent had filed complaint before CCI against appellant & film distributor associations alleging presence of cartel to restrict release of its movie Mausam by imposing the condition that respondent should first pay its dues relating to movie 'Rann'; COMPAT notes that neither there was any allegation against appellant nor any evidence was produced by respondent to prove that the appellant had prevented or obstructed the release of film 'Mausam' on the scheduled date; Observes that appellant had only requested film distributions associations to settle the matter, thus holds that Director General's observations "castigating the appellant's conduct as anti-competitive are ex facie perverse"; Further holds that, "Commission which is expected to objectively and independently analyse the facts and evidence collected by the Jt. DG during the course of investigation abdicated its duty and mechanically approved the findings recorded by the Jt. DG.", and states that CCI repeated the mistake committed by the Jt. DG of mixing-up the case of appellant with other associations against whom complaint was filed; COMPAT also observes that CCI affirmed DG's report that rules framed by appellant were anti-competitive, holds that such observations are without jurisdiction as in the complaint filed by respondent "there is not a whisper that the rules framed by the appellant are anticompetitive", holds "Commission compounded the jurisdictional error by approving the view expressed by the Jt. DG in relation to the particular rules" :COMPAT
The ruling was delivered by Justice G.S. Singhvi.
Advocate Vaibhav R. Vankatesh argued for appellant, while Mr. Kamal Sultanpuri and Advocates Anju Jain and Hitesh Sachar represented respondents.
GOODS AND SERVICE TAX REPORTS (GSTR) HIGHLIGHTS
F Duty drawback benefits indirectly flowing from buyer to assessee includible value of goods : CCE v. Indorama Synthetics (I) Ltd. p. 601
F Equipment with inbuilt software containing programmes for analysis and interpretation enabling importer to change such programmes to suit its own convenience falls within description of auto analysers : Dr. Reddy's Laboratories v. Commissioner of Customs p. 668
F Voluntary payment of duty two years after exceeding small-scale exemption limit, suppression of facts and extended period of limitation applicable : Kripa Fabs P. Ltd. v. CESTAT (Mad) p. 616
F Amendment permitting availment of credit if goods cleared to unit in free trade zone or hundred per cent. export-oriented unit, substantive and not retrospective in operation : Essel Packaging Ltd. v. CCE (Bom) p. 677
F Where goods not sold at time and place of removal but stock transferred to depot and later on sold, transaction value prevailing at depot be taken as transaction value while clearing goods from warehouse : Indian Oil Corporation Ltd. v. CCE (Trib.-Mum) p. 621
F Non-disclosure of collection of extra amount in invoices issued from depot amounts to suppression of facts : Indian Oil Corporation Ltd. v. CCE (Trib.-Mum) p. 621
F On failure to prove that imported goods did not avail remission of Cenvat in exporting country under World Trade Organisation agreement, additional customs duty leviable : Commissioner of Customs v. Dr. Roshan Lal Agarwal and Sons P. Ltd. (Trib.-Delhi) p. 637
F Finding of clandestine removal of goods cannot be based only on statements : Prayank Prayagraj Aggarwal v. CCE and Service Tax (Trib.-Ahd) p. 652
F C. B. E. C. Circulars :
Circular No. 22/2015-Customs, dated 3rd September, 2015-Delay in furnishing reply to the queries raised by the Department-Regarding p. 114
Circular No. 1006/13/2015-CX, dated 21st September, 2015-Clarification regarding binding nature of circular and instructions p. 115
F Notifications :
Central Excise Act, 1944 : Notification under section 2(b) : Delegation of powers of Central excise officers p. 103, 104
Notification under section 5A(1) : Concessional rate of duty on specified goods : Amendments p. 97
Central Excise Rules, 2002 : Notification under rule 3 : Delegation of powers of Central excise officers p. 103, 104
Customs Act, 1962 : Notification under section 5(1) : Powers of customs officers p. 102
Notification under section 14(2) : Rates of basic duty on specified goods : Amendments p. 101
Notification under section 25(1) : Effective rates of basic customs duties for specified goods : Amendments p. 99
Customs Tariff Act, 1975 : Notification under section 8B(2) : Safeguard duty on import of hot-rolled flat products into India p. 98
Finance Act, 1994 : Notification under section 65B(55) : Delegation of powers of Central excise officers p. 103
Foreign Trade (Development and Regulation) Act, 1992 : Notification under section 3 : Import Policy of "controlled substances" under NDPS Act, 1985 : Amendments p. 108
Prohibition on import of milk and milk products from China : Amendments p. 106
Prohibition on trade with Islamic State in Iraq and Levant, Al Nusrah Front and other individuals/groups associated with Al Qaida p. 107
Revision of minimum import price for areca nut : Amendments p. 104
Notification under section 5 : Export Policy of edible oils : Amendments p. 112
Export Policy of onions : Amendments p. 107, 113
Export Policy of sawn timber to Nepal : Amendments p. 111
Insertion of new paragraph 4.49A on special notified zone in FTP 2015-20 : Amendment p. 105
Service Tax Rules, 1994 : Notification under rule 3 : Delegation of powers of Central excise officers p. 103
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