Sunday, January 20, 2013

Bangalore ITAT: RPM considered as the MAM for trading activity


In case of Textronix India (P) Ltd. [IT Appeal No.1334 of 2010], Bangalore Bench of Tribunal observed that the resale price method ('RPM') should be considered as the most appropriate method ('MAM')  when a re-sale takes place without any value addition to a product.

Facts
The material facts with regard to the aforesaid issue are as follows: The taxpayer is a company which is engaged in the business of distribution of telecom equipment, logic analysers and other test and measurement equipments and accessories on behalf of its Associate Enterprise ('AE'). Besides the above, if a customer in India wants to purchase the equipment directly from the AE, the taxpayer acts as intermediary and derives commission income for services rendered. These are the two streams of revenue which the taxpayer derives from carrying out transactions with its AE. The taxpayer conducted a transfer pricing study in respect of its trading activity as well as commission agency activity. For the purposes of benchmarking, the tax payer selected Transactional Net Margin Method ('TNMM') as the MAM and computed 8.01% margin of the tested party and 0.94% of the comparable companies.

On review, the transfer pricing officer ('TPO') disregarded the approach of the taxpayer and carried out segment analysis of trading and commission activity with -13.30% loss in trading and 62.84% profit in commission. In order to benchmark the trading activity, the TPO computed the mean margin of comparable companies as 3.34% and accordingly proposed an addition in trading segment.

The case went to DRP wherein the computation carried out by the transfer pricing officer was upheld.

Observation of the Tribunal
The Bangalore Bench of Tribunal relied upon the ratio laid down by the Mumbai Bench of the Tribunal in the case of L'Oreal India Pvt. Ltd. and observed that the same would be squarely applicable to the facts of the taxpayer's case, and accordingly, RPM should be considered as the MAM.

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 re-sale takes place without any value addition to a product. In the present case, the assessee buys products from the AE and sells it without any value addition to the Indian customers. 

Trust you would find the same useful.

Best Regards
CA Gaurav Garg
JGarg Economic Advisors
+91 9899994934
gaurav@jgarg.com

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