Transaction at uniform global price can’t be assumed to be at ALP unless comparability analysis is done

Purchase transactions could not be held to be at arm’s length where no comparability analysis was done, simply because AE supplied products globally at listed price.

The assessee, a wholly owned subsidiary of 'K', Netherlands, had international transactions with its Associated Enterprises (‘AEs’). In its TP report, assessee applied RPM. However, it did not provide the working or basis of its benchmarking of arm’s length price and claimed the transactions to be at ALP. TPO rejected assessee’s claim and made upward adjustment. The CIT(A) confirmed the order of TPO.

ITAT remanded the matter with following observations:

1) The fact that the AE supplied the products at listed price worldwide could not justify the assessee’s stand because no analysis had been done on the supplies made by the AE to the other countries;

2) If any comparability analysis would have been carried out in case of other parties to whom the AE had supplied the same material, then such a plea of the assessee could have been accepted;

3) The foundation of the TP mechanism is to determine the most appropriate ALP by following any of the prescribed method. The initial burden is on the assessee to demonstrate as to which appropriate method should be followed for carrying out comparability analysis of controlled transactions with the uncontrolled transactions for benchmarking its transaction and justifying that it is at ALP;

4) Therefore, the entire issue needed to be restored back to the file of the TPO for de novo adjudication after taking into consideration what should be the most appropriate method (that is, whether RPM or CUP method), and the onus would be on the assessee to demonstrate as to why CUP method had to be followed and what would be the comparables based on which comparability analysis could be done - KODAK POLYCHROME GRAPHICS (I) (P.) LTD. V. ACIT (2013) 36 taxmann.com 42 (Mumbai - Trib.)

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