Friday, July 1, 2016

Even 'Quoted Prices' may be accepted for comparability analysis under CUP method


The issue before the Tribunal was as under:

Whether the 'quotations' in the form of external CUP and custom data of third party shipping bills, brokers rates, SOPA rates etc., can be considered as the reliable comparable data or not.?

Tribunal held in favour of assessee as under:

1.  Gujarat High Court in case of CIT v. Adani Wilmar Ltd. [2014] 45 365 (Gujarat) has held that the price publication as long as same are authentic and reliable would be relevant material for the purpose of rule 10D(3)(c).

2.  Even 'Quoted Prices' may be used if they are authentic for comparability analysis in CUP method. For this one may refer to the release of new guidance on cross border commodity transactions by OECD on its Base Erosion and Profit Shi ing (BEPS) plan actions 8 and 10, 2015 Final Reports, wherein there is an addition to Chapter II of the Transfer Pricing Guidelines relating to commodity transactions.

3.   In the instant case, revenue had stated that the data produced by assessee are not authentic. However, there was no whisper in the order of the TPO that the internal and external comparable data have been examined at all with respect to their authenticity. They had been simply rejected relying on rule 10D(3) of the Income-tax Rule. 

4.   Therefore, following the decision of Gujarat High Court and drawing support from OECD BEPS Action Plan, it was held that even the 'quoted prices' which is authentic may be acceptable as per rule 10D(3) of the income tax rules for comparability analysis - 2016 70 300 (Delhi -Trib.)

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