Income Tax Appellate Tribunal - Mumbai
Ucb India P. Ltd, Mumbai vs Dcit Rg 8(3)(1), Mumbai on 22 January, 2020
IN THE INCOME TAX APPELLATE TRIBUNAL
"J" BENCH, MUMBAI
BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER AND
SHRI RAM LAL NEGI, JUDICIAL MEMBER
MA No.461/Mum/2019
(Arising out of ITA No.1785/Mum./2016
(Assessment Year: 2011-12)
MA No.462/Mum/2019
(Arising out of ITA No.2162/Mum./2017
(Assessment Year: 2012-13)
&
MA No.463/Mum/2019
(Arising out of ITA No.645/Mum./2015
(Assessment Year: 2010-11)
M/s. UCB India Pvt. Ltd
504, Peninsula Towers
G.K. Marg, Lower Parel ................ Appellant
Mumbai - 400 013
PAN No.AAACU1627L
v/s
DCIT RG 8(3)(1)
R.No.615, 6th Floor
Aayakar Bhavan ................ Respondent
M.K. Marg
Mumbai, Maharashtra
Assessee by : Shri. Rajan Vora
Revenue by : Shri. V. Vinodkumar
Date of Date of Order -22/01/2020
Hearing - 22/11/2019
MA No.461, 462 & 463/ Mum/2019
M/s. UCB India Pvt. Ltd.,
ORDER
PER: SHAMIM YAHYA By way of these Miscellaneous Applications, assessee seeks rectification of mistake apparent from record u/s.254(2) of the Income Tax Act, in the common order of this Tribunal in ITA No.645/Mum/2015, 1785/Mum/2016 & 2162/Mum/2017 for A.Y.2010-11 to 2012-13 vide order dated 11/04/2019.
2. The issue in the income tax appeal related to the following issues:-
Transfer Pricing adjustment of export of FDF to AE of Rs.3,20,67,090/-
Disallowance of E-connectivity charges -
Rs.4,53,29,476/-
3. As regards the transfer pricing adjustment of export of FDF to the AEs, the ld. Counsel of the assessee contends that there had been incorrect findings in the order of the ITAT and erroneous reaction of the contentions. The ld. Counsel for the assessee made various submissions in this regard. He submitted that in Para 14 of the order, the Hon'ble ITAT repeated incorrect factual finding that UCB India is trying to camouflage the OP/OC of small exports to AEs with total exports, summarily rejected the segmental accounts prepared by UCB India and the comparable companies considered for the purpose of benchmarking of the impugned transaction. That in Para 15 of the order, the Hon'ble ITAT rejected 2 MA No.461, 462 & 463/ Mum/2019 M/s. UCB India Pvt. Ltd., the contentions raised by UCB India with respect to the principle of consistency. That in Para 16, 17 and 18 of the order, the Hon'ble ITAT has reproduced the findings of the Hon'ble DRP pertaining to the submissions of UCB India for the difference in functions performed, risks assumed and geographical location, without appreciating the additional submission filed before the Hon'ble DRP and the additional supporting evidence filed before the Hon'ble ITAT. That in Para 19 of the order, the Hon'ble ITAT has incorrectly observed that the contention raised by UCB India pertaining to the use of unutilized production capacity for manufacture of FDFs exported to its AEs have not been raised before the lower authorities. That further, in Para 19 of the order, the Hon'ble ITAT has erroneously inferred the contentions raised by UCB India with respect to the improved marginal costing (as a result of optimum utilization of production). That in addition, in Para 19 of the order, without appreciating the contentions of UCB India, has incorrectly observed that that the products exported to AEs are of superior quality vis-a-vis the products distributed by UCB India in the local market.
4. Ld. Counsel further made submissions in support of the above proposition.
5. We find that the above issue was adjudicated by the ITAT as under:-
"13. Upon hearing both the counsel and perusing the records we find that the reasoning given by the transfer pricing officer for change in the method of choosing the most appropriate method as CUP instead of the TNMM method adopted by the assessee is firstly rejection of assesses method by following reasoning. "It is observed that the assessee had calculated OP/OC at entity level. The transaction cannot be compared at entity level as the Export of Finished Drugs to AE is only Rs.5,08,97,858/- . Whereas, the assessee has calculated OP/OC for total Export of Rs.33 Crores. Also in. the Annual 3 MA No.461, 462 & 463/ Mum/2019 M/s. UCB India Pvt. Ltd., Accounts of the assessee there is are no such segmental accounts. Thus in the Annual Audited accounts the break- up of the Export to AE and Non AE is not available. In the' Audited Annual Accounts the Segmental Results for Export and Local Sale is also not available. Therefore, the so called calculation of OP/OC taking into account the entire Export of Rs33 Crores is also not reliable. Thus here the important issue is that the Assessee is trying to camouflage the OP/OC of the small Export to AE using OP/OC of the Total Export. Therefore/ this method of Benchmarking is not acceptable as it is not giving a true picture. On perusal of the TPSR it was observed that the assessee had benchmarked the Transaction of Import of API and Export of Finished Drugs using the same set of comparables. This method of benchmarking two different activities using the same set of comparables itself is incorrect. How can one compare the activity of import of API with that of Export of Finished Products. The two activities are altogether different. In the TPSR the difference between the two activities is clearly mentioned in the TPSR. Therefore, assessee's this act of benchmarking the Export of FDF using the same set of comparables is not it acceptable."
14. From the above it is clear that transfer pricing officer's observation that assessee is trying to camouflage the OP/OC of small export associated enterprises (Rs 5 cr) with the OP/OC of the total export of Rs. 33 crore is cogent. Further in the annual accounts there are no segmental accounts. The annual audited accounts does contain the breakup of export to associated enterprise and non-associate enterprise. Further more in the audited annual accounts the segmental results for export and local sales is also not available. Further the transfer pricing officer found that assessee has benchmarked the transaction of import of API and export of finished drugs with the same set of comparable. The transfer pricing officer has rightly observed that activity of import of API cannot be compared with that of export of finished products. In these circumstances the transfer pricing officer has rejected the TNMM method of benchmarking adopted by the assessee.
15. In our considered opinion the reasons given by the transfer pricing officer for rejecting the TNMM method adopted by the assessee is quite cogent. The above clearly show that if on the same facts in earlier period TNMM method was adopted it was an error. It is settled law that there is no use of perpetuating an error. The case here is not that the transfer pricing officer is changing the method to that of CUP by claiming that this method is a superior method to TNMM. Hence the objection of the learned counsel of the assessee by placing reliance upon case laws in this regard is liable to be rejected and the same is rejected as such.
16. As rightly noted by the transfer pricing officer there is readily available internal CUP in the form of local sales of the same products. The export sales with the associated enterprise of fixed doses form (FDF) viz. UCEREX 10mg, UCEREX 25mg & 2YRTEC were also sold in local market with identical 4 MA No.461, 462 & 463/ Mum/2019 M/s. UCB India Pvt. Ltd., pharmaceutical contents CUP. The assessee has objected that there are differences in function assets risk (FAR) analysis in this regard. The assessing objection in this regard has been cogently dealt with by the transfer pricing officer and has been noted by the dispute resolution panel as under:-
5. Grounds of objection three and four are against the adoption of the CUP method by the TPO to benchmark the international transactions of export of FDFs. The assessee has contended that the functions performed in the export of FDFs to the AE and the sales of similar FDFs to the local third parties in India are different. Among the differences highlighted by the assessee are that in respect of local sales, the assessee is required to estimate the demand for FDFs in the market for the purposes of manufacture whereas while dealing with the AEs, it manufactures and supplies the FDFs in accordance with confirmed orders placed by the AEs and as per their specifications. The TPO in his order as well as in the course of the remand proceedings found such claim of the assessee to be without adequate basis. The AE placed the orders for purchase three months in advance and no fixed quantum of purchase was assured in the facts of this case by the concerned AEs. The Indian stockists, in a similar manner, also have to place order as per the fixed formula of twice the quantum of sales minus the closing stock with them.
Thus the Indian stockists of the FDFs for whom supplies were made by the assessee also placed confirmed orders well in advance. The assessee further contented that while exporting FDFs to the AEs, the functions with respect to sales and marketing were performed by the AEs whereas in the case of sales made to the local third parties, the said sales and marketing functions had to be undertaken by the assessee itself. Here also, the TPO on an analysis of the clauses in the relevant stockist's agreement observed that the stockists had undertaken to promote ethical business practice arid to secure orders from the doctors, hospitals and retailers. Thus substantial marketing functions were undertaken by the stockists appointed and not the assessee.
5.1 In the same context of differences between the export of FDFs to the AE and their sale in the local market, the assessee had contended that when dealing with the AEs, the credit risk borne by the assessee was negligible whereas in the local sales, as there is a possibility of bad debts arising, it is the assessee that bears the credit risk. Here again, the TPO has noted that the delivery to the local stockists is against post dated cheques issued by them to the assessee and to that extent the credit risk of the assessee on local sales is also negligible. In any case, there was a specific clause for payment of interest @18% if the stockists delayed the payments, whereas the invoices of, the AE permitted a credit period of 60 days. The assessee has also contended that without considering the manufacture for the export transactions, the production capacity utilization by the assessee was only 58% and the export was against such idle capacity and, therefore, the cost parameters of the two transactions could not be compared. Such correspondence between the idle 5 MA No.461, 462 & 463/ Mum/2019 M/s. UCB India Pvt. Ltd., capacity and the production for exports, claimed by the assessee, is arbitrary and without any basis. From the aforesaid facts, the DRP is of the view that the element of FAR analysis discussed above do not demonstrate any significant economic differences that would affect the price in the open market between the transaction of sale of FDFs to the AEs and the sale of identical FDFs to the local parties.
5.2 In its objections filed before the DRP on the issue of inappropriateness of the CUP method to its transactions, the assessee has pointed out the differences on the geographical markets wherein the two sets of transactions were undertaken. The TPO has analysed this objection and has observed that the product quality of the FDFs exported appears to be marginally superior and the regulatory regime being more stringent in the geographical location of the AE, the price charged to the AE should have been higher to that extent. However, in the CUP analysis, the price actually charged to the AE is found to be lower than that charged in the local sales made by the assessee. The DRP on such facts finds itself in agreement with the TPO that no discount would be available to the assessee on account of differences in geographical location of the export price of FDFs sold to its AE.
5.3 Among the differences between the sale of FDFs to the AE and the sate of identical FDFs in the local market pointed out by the assessee is the difference in the level of marketing. It is a fact of this case that as against the singular AE to whom export of FDFs were made, the stockists to whom supplies are made by the assessee are more than 1500 in number. In order to co-ordinate and to manage its local sales, the assessee has employed marketing staff of around 200 employees. The DRP recognises the additional expenditure on account of marketing expenses that are an additional factor of cost in the local sales made by the assessee as compared to the sales made to the AEs.
17. Thereafter the dispute resolution panel had directed for appropriate discount for the additional marketing expense incurred by the assessee in its local sales. It directed that the ALP computed by T.P.O. would be reduced by per unit salary cost of employees engaged in marketing field.
18. We find that the difference in FAR as submitted assessee has been cogently rebutted by assessee below. Hence we find no infirmity in the direction of the dispute admission panel in this regard.
19. We find that the learned counsel of the assessee has made a proposition before us that assessee has only used its surplus/spare capacity to make exports to the associated enterprise and it has actually made a profit out of the same. We find that this line of argument was never before the authorities below. We do not find any cogency in the same for taking this international transaction out of the ambit of ALP determination. As a matter of fact it is in fact an admission on the part of the assessee that prices charged from the 6 MA No.461, 462 & 463/ Mum/2019 M/s. UCB India Pvt. Ltd., associated enterprise are comparatively lower, which in turn further fortifies the action of the transfer pricing officer. We note that it is the contention of the learned counsel of the assessee that the assessing officer has not given effect to the direction of the DRP regarding adjustment in ALP computed by T.P.O. we direct the assessing officer to follow the direction of the dispute admissions panel. It will not be out of place here to reiterate that T.P.O. from examination of assessee's personnel has found that finished products exported to AE are superior quality they comply with strict U.S FDA regulation. 20. Our order as above shall apply mutatis mutandis for assessment year 2011-12 & AY 2012-13."
6. We find that ITAT has passed a well reasoned order. The only mistake apparent from record is the word assessee used in place of authorities in second line of para 18 in the above order. Hence, the word assessee should be read as authorities in second line of para 18 of the above order. The ld. Counsel of the assessee has contended that ITAT finding is incorrect. He contends that various submissions and evidence has not been properly appreciated. By calling the factual finding as incorrect, the same cannot take the issue out of review being sought by the assessee. Furthermore, the various issues as mentioned above are finding of the fact by the Tribunal after considering the submissions and perusing the record. What the assessee is now seeking clearly review of the order not permissible u/s.254(2) of the IT Act. Hence, if according to the assessee, the order of the ITAT needs to be visited again or the evidences submitted need re-appreciation again in light of assessee's arguments, the same would amount to review of the matter not permissible u/s.254(2) of the I.T. 7 MA No.461, 462 & 463/ Mum/2019 M/s. UCB India Pvt. Ltd., Act. Hence, in our considered opinion, the Miscellaneous Application in this regard is liable to be dismissed and the same is dismissed as such.
6. As regards the disallowance of E-connectivity charges, it is the submission of the ld. Counsel of the assessee that it has been submitted that the issue was decided by this Tribunal in assessee's own case in assessee's favour but the Tribunal had ignored the same.
7. We find that on this issue, the Tribunal has noted that there were no convincing arguments by the ld. Counsel of the assessee, hence, the ITAT had upheld the order of the authorities below. Now, since it is the contention of the ld. Counsel of the assessee, assessee's own case which was in favour of assessee on the said issue has not been considered, in our considered opinion, there is a mistake apparent from the record in the order of the Tribunal. Hence, on the conclusion of the decision of Apex Court in the case of Honda Siel Power Products Ltd 165 Taxman 307(SC). Accordingly, we recall the order of the disallowance of e-connectivity charges.
8. In the result, Miscellaneous application with regard to the transfer pricing adjustment is dismissed and the issue relating to disallowance of e-connectivity charges is only recalled for fresh consideration.
8MA No.461, 462 & 463/ Mum/2019 M/s. UCB India Pvt. Ltd.,
9. In the result, Miscellaneous Applications are partly allowed.
Order pronounced in the Open Court on 22.01.2020
Sd/- Sd/-
RAM LAL NEGI SHAMIM YAHYA
JUDICIAL MEMBER ACCOUNTANT MEMBER
MUMBAI, DATED: 22.01.2020
Copy of the order forwarded to:
(1) The Assessee;
(2) The Revenue;
(3) The CIT(A);
(4) The CIT, Mumbai City concerned;
(5) The DR, ITAT, Mumbai;
(6) Guard file. By Order
Karuna
Sr. Private Secretary
(Dy./Asstt.Registrar)
ITAT, Mumbai
9