Fresenius Kabi India Private Limited vs. DCIT (ITAT Pune)- 12 Sep 2017 (pub.)
One of the facts discussed: Rejection of Resale Price Method (RPM) and selecting of Transactional Net Margin Method (TNMM) as the most appropriate method - Activity where no Value additions are being done?Some very useful discussion/ facts of the case for easy reference:
1-Assessee imports the finished goods and sells the same in the domestic market with a markup. During the studies by the TPO, it is noticed that the assessee debited huge expenditure on account of selling and marketing expenses. Thus, the TPO is of the view that the distributor, who merely imports the items for selling without any value addition, is not required to incur such expenses. Further, he ............. came to the conclusion that the Resale Price Method (RPM) adopted by the assessee as most appropriate method for TP studies of the segment, is not appropriate.
2- It was further observed by the TPO " There is an observation that distributor segment shown the operating loss before interest and depreciation. As per the TPO/AO, the distributor does not suffer losses normally. There was also discussion about the quality of the comparables considered for TP study before concluding that the most appropriate method for benchmarking the trading activity of the assessee is TNMM and rejected the Resale Price method chosen by the assessee"
3- According to Ld. Authorised Representative, so long as there is Nil value addition to the products distributed by the said expenditure, the Resale Price Method is the most appropriate one.,
4- It was further noted by the learned court by referring some cases i.e " In similar circumstances, Mumbai Bench of the Tribunal in the case of L’Oreal India Pvt. Ltd. has taken the view that the RPM would be the most appropriate method for determining the ALP. The Mumbai Bench of Tribunal, in this regard, has referred to the OECD guidelines wherein a view has been expressed that RPM would be the best method when a resale takes place without any value addition to a product,
5- Further the reference of the the similar case of M/s. Frigoglass India Pvt. Ltd. in which it was held that Resale Price Method is the most appropriate method in case of a distributor,
6- Further the similar case of Delhi Bench of the Tribunal in Bose Corporation India Pvt. Ltd. It was held by the learned court that " We are unable to accept the contention advanced on behalf of the Revenue. The obvious reason for this is that the incurring of high advertisement and marketing expenses by the assessee does not in any manner affect the determination of ALP under the RPM. It is but natural that only those expenses can have bearing on the gross profits that are debited to the Trading account. As the amount of advertisement and marketing expenses finds its place in the Profit and loss account, the higher or lower spend on it cannot affect the amount of gross profit and the resultant ALP under the RPM"
Hence from the above, it is settled legal position at the various Benches of the Tribunal that, in case of distribution activity, even when there are selling and marketing expenses are borne by the assessee, there cannot be any value addition to the product in question. In such cases, Resale Price Method is the most appropriate one and accordingly we reverse the decision given by the AO/TPO/DRP in thrusting on the assessee the TNM method to the transaction under consideration.
For reading full text of the judgement please refer link - http://itatonline.org/archives/fresenius-kabi-india-private-limited-vs-dcit-itat-pune-transfer-pricing-in-the-case-of-an-assessee-engaged-in-distribution-activity-there-is-no-value-addition-to-the-product-in-question-even-if-the-s/fresenius-kabi-rpm-transfer-pricing/
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