It means a transaction between two or more associated enterprises, either or both of whom non-residents by way of are transfer of tangible or intangible property or advancing of loans or providing services having a bearing on income or assets. Certain specified domestic transactions prone to price manipulations were also included. The scope of the term ‘international transactions’ was expanded by providing a clarificatory amendment to include various modes of transactions, particularly, relating to intangible property, capital financing, provision of technical, managerial or consultancy services and business restructuring.
When two or more associated companies (Associate Enterprises) enter into a mutual contract during an international transaction in order to apportion a particular cost incurred in relation with a benefit, service or facility offered by any one or all of the companies, such a cost shall be calculated considering the arm’s length price of the particular benefit, service, or facility, as applicable.
The relationship of associated enterprises (AEs) is defined by Section 92A of the Income Tax Act 1961, to cover direct/ indirect participation in the management, control or capital of an enterprise by another enterprise. It also covers situations in which the same person (directly or indirectly) participates in the management, control or capital of both the enterprises.
For the purposes of the above definition, certain specific parameters have been laid down based on which two enterprises would be deemed as AEs. These parameters include:
Tax Authorities are often concerned about multinationals underpaying taxes through incorrect transfer prices.
The term ‘arm’s-length price’ is defined in Section 92F of the Income Tax Act 1961 means a price that is applied or is proposed to be applied to transactions between persons other than AEs in uncontrolled conditions.
The following methods have been prescribed by Section 92C of the Act for the determination of the arm’s-length price:
There are various other procedures that are prescribed by the Central Board of Direct Taxes, generally known as the Board.
Any person who is involved in an international transaction in the previous year shall submit the report in Form 3CEB through a Chartered Accountant, duly verified by him, on or before the date prescribed by the authority, furnishing all the required details.
The burden of proving the arm’s-length nature of a transaction primarily lies with the taxpayer. If the tax authorities, during audit proceedings on the basis of material, information or documents in their possession, are of the opinion that the arm’s-length price was not applied to the transaction or that the taxpayer did not maintain/ produce adequate and correct documents/ information/ data, the total taxable income of the taxpayer may be recomputed after a hearing opportunity is granted to the taxpayer.
The following stringent penalties have been prescribed for noncompliance with the provisions of the transfer pricing code:
Subsidiaries that generate minimal profits or incur losses are regularly audited for transfer pricing.
Conversely, tax auditors of parent companies raise concerns over subsidiary companies generating large profit margins.
An international transaction is one which takes place between a resident and a non-resident or between two residents with a non-resident associated concern as an intermediary. There is bound to be a tax impact for one or the other, so that transfer pricing become relevant, if not for the non- resident but at least for the resident associate. Transfer pricing is bound to be relevant in such cases. It stands to reason, when the transfer pricing has no relevance at all for either party to the transaction, the rules would have no application, because the requirement of ascertainment of transfer pricing would not arise in such a case.
Transfer pricing rules relate to transactions. It is therefore reasonable to presume that the transaction covered in the last quarter of the previous year alone could be covered. There is possible view, that since it is an associate concern at any time during the year, all the transactions for the year are covered. The definition of “associated enterprise” in section 92A(2) would indicate, that an enterprise becomes an associate enterprise , if it becomes so “at any time during the previous year”. It would, therefore, mean that the associate enterprise is an associate enterprise for the whole year, so that the transaction for the period for which it was not associate enterprise may also be covered. This would, however, be a less plausible interpretation.
Head office and branch are consider one and the same in law. They are not an associate enterprise within the meaning of transfer pricing rules. But a branch may constitute itself as a permanent establishment, where it is located, so that the authorities would require the income attributable to the operations of such permanent establishment in the host country to be calculated. The principles under the transfer pricing rules would have application in such a case in determination of the income. But the partners may well expect the taxpayer to explain the basis adopted for accounting purposes. To the extent, that the principles adopted will have relevance to the transfer pricing rules, they cannot be ignored.
Yes, The Indian Transfer Pricing regulation provide various option to the tax payer to avoid any future litigation from Tax authority such as: