Specified domestic transactions - Vasai Branch of ICAI

Vasai Branch of ICAI
Specified Domestic
Transactions
12 September 2015
Ajit Kumar Jain

Transfer Pricing Adjustments – Trend
TP audit trends indicate greater scrutiny, leading to increased adjustments and resultant litigation
Assessment
Year
No. of TPAudits
Completed
Number of
Adjustment Cases
% of
Adjustment
Cases
Amount of
Adjustment
(Rs. in Crores)
2002-03 1,061 239 23 1,220
2003-04 1501 337 22 2,287
2004-05 1,768 471 27 3,432
2005-06 219 84 39 1,614
2006-07 1,726 670 39 6,140
2007-08 1,830 813 44 10,908
2008-09 2,301 1,138 49 23,237
2009-10 2,638 1,343 52 44,531
2010-11 3,171 1,686 53 70,016
2011-12 3,617 1,920 53 59,602
Source: Annual report Ministry of Finance
Vasai Branch of ICAI- Domestic Transfer Pricing 2

Trend of High Transfer Pricing Adjustments Continues
62%11%
17%
10%
Analysis of 1230 no. of ITAT
cases
Partly in
favour of
taxpayer and
revenue
Remanded
back for fresh
adjudication
In favour of
taxpayer
In favour of
revenue
01-02 02-03 03-04 04-05 05-06 06-07 07-08 08-09 09-10
Est. Adj.
in USD mn
300 560 860 1,100 2,160 4,440 9,000 12,000 10,000
% of cases adj 23 22 27 39 44 50.97 50.91 53.17 53.08
300
560
860 1100
2160
4440
9000
12000
10000
23
22
27
39
44
50.97 50.91
53.17
53.08
10
15
20
25
30
35
40
45
50
55
60
-
2,000
4,000
6,000
8,000
10,000
12,000
14,000

Arm’s length principle
“arm’s length principle” means transactions between associated enterprises
should be computed with regard to Arm’s Length Price
Arm’s length price
“arm’s length price” means a price applied in a transaction between persons
other than associated enterprises, in uncontrolled conditions
Key is comparability!!

February 2002 : Finance Act 2002 introduced Transfer Pricing Provisions in India
with effect from 01April 2002 – covered international transactions.
February 2012: Finance Act 2012 introduced Domestic Transfer Pricing
provisions in India with effect from 01 April 2012 – covered specified
domestic transactions
February 2012: Finance Act 2012 introduced Advance Pricing Agreement
(APA) with effect from 01 July 2012.
August 2013: Central Board of Direct Taxes (the “CBDT”) introduced draft safe
harbour rules on 14 August 2013 . On 18 September 2013, the rules were finalized
considering the recommendations received
The Transfer Pricing Journey

Countries already having Domestic TP
Prominent names:
• Australia*
• Brazil
• China
• France
• Russia
• South Africa*
• UK
*to a limited extent
Common practice in many countries – Not a new phenomenon

Brief background
Supreme Court (SC) in Glaxo Smitkline Asia (P) Ltd. (2010) 195 Taxman 35 (SC),
observed that there was a need to extend TP regulations (as applicable to Int. Tr) to
domestic transactions.
In order to give effect to the above SC observation, The Finance Act (FA) 2012 has
extended the scope of Transfer Pricing (TP) regulations as applicable to ‘international
transactions’ (Int. Tr) to ‘specified domestic transactions’ (SDT) with effect from A.Y.
2013-14.
Objective behind applying and extending of scope of transfer pricing regulations to
domestic transactions:
• In determination of income from domestic related party transactions and
• determination of reasonableness of expenditure between related domestic parties.
• It will create legally enforceable obligation on assessees to maintain proper
documentation.

Intent of Indian DTP Regulations
Particulars (Ordinary Situation) Co. X (SEZ) Co. Y (DTA)
Income 500 1000
Income from related party 100 -
Expenses 300 800
Expense to related party - 100
Profit/ Loss 300 100
Tax rate applicable 0% 32.45%
Tax - 32.45 (100*32.45%)
Particulars (Planned Situation) Co. X (SEZ) Co. Y (DTA)
Income 500 1000
Income from related party 200 -
Expenses 300 800
Expense to related party - 200
Profit/ Loss 400 -
Tax rate applicable 0% 32.45%
Tax - -
Loss to
Revenue –
Tax Saving
to the Group

Intent of DTP Regulations
Loss making
company
Taxable unit
Tax Holiday
Unit
Profit making
company
Shifting of expenses Shifting of expenses
Shifting of income Shifting of income

Overview of the Provisions
Scope of TP provisions expended w.e.f AY 2013-14 by including “SDT” if aggregate
value of such transaction exceeds INR 5 Crores [ INR 20 Crores w.e.f. AY 2016-17]
“Specified Domestic Transactions “ in case of an assessee means any of the following
transactions, not being an international transaction , namely –
i. Any expenditure in respect of which payment is made or to be made to a person
u/s 40A(2)(b) ;
ii. Any transaction referred u/s 80A ;
iii. Any transfer of goods/services u/s 80-IA ;
iv. Any business transaction u/s 80-IA(10) ;
v. Any transaction under Chapter VI-A or u/s 10AA – to which provisions of Sec
80-IA (8) or (10) applies ; or
vi. Any other transaction as may be prescribed.

SDT
Inter unit transfer of goods & services by undertakings
to which profit-linked deductions apply- S.80IA(8)
Expenditure
incurred
between
related parties
defined under
section 40A
Transactions between undertakings, to which profit-
linked deductions apply, having close connection
S.80IA(10)
Any other
transaction
that may be
specified
Overview of Provisions of Section 92BA

Move from FMV to ALP
Fair Market Value Arm’s Length Price
No method prescribed for
computing market value
Six methods prescribed for
computing ALP
No documentation required to be
maintained
Contemporaneous documentation
required
Other than reporting in tax audit
report, no compliance
Accountant’s Report to be filed
Assessment done by AO Assessment done by TPO

Section 40A(2) – Payments to Related Parties
“40A(2)(a) Where the assessee incurs any expenditure in respect of
which payment has been or is to be made to any person referred to in
clause (b) of this sub-section, and the Assessing Officer is of opinion that
such expenditure is excessive or unreasonable having regard to the fair
market value of the goods, services or facilities for which the payment is
made or the legitimate needs of the business or profession of the assessee
or the benefit derived by or accruing to him therefrom, so much of the
expenditure as is so considered by him to be excessive or unreasonable
shall not be allowed as a deduction.
“Provided that no disallowance, on account of any expenditure being
excessive or unreasonable having regard to the fair market value, shall be
made in respect of a specified domestic transaction referred to in section
92BA, if such transaction is at arm's length price as defined in clause (ii)
of section 92F.”

Section 40A(2) – Payments to related parties
General scope of Section 40A(2)
 ‘Any expenditure’ in respect of which payment has been or is to be made to
Specified Persons
 Specified persons having Substantial Interest ( i.e. more than 20% voting power or
share in profits) in taxpayer’s business and vice-versa covered
 Generally, following payments may be covered:
- Payment towards purchase of raw materials, services,
- Payment towards sharing of common premises/facilities
- Payment of interest on loan
- Payment of managerial remuneration, salary, bonus etc to directors
Vasai Branch of ICAI- Domestic Transfer Pricing
16

Persons covered u/s. 40A(2)(b)
Clauses
(i) any relative of an individual assessee
(ii) any director or his relative of a company assessee*
(iii) any individual having substantial interest in the business of assessee, or his
relative
(iv) a company having a substantial interest in the business of assessee or its director
or any relative of such director or any other company carrying on business or
profession in which the first mentioned company has substantial interest*
(v) a company of which a director has a substantial interest in the business of the
assessee; or any director of such company or any relative of such director*
(vi)(A) any person in whose business individual assessee or his relative have
substantial interest
(vi)(B) any person in whose business a company or any director of such company or
his relative have substantial interest*
*Also include partner or member of such firm, association or family along with director of company

Type of transactions covered…
Case 1 - Director or any relative of the
Director of the taxpayer – Section
40A(2)(b)(ii)
Mr. A Mr. C
Assessee
(Taxpayer)
Mr. D
Director
Relative
Covered transactions
Case 2 - To an individual who has
substantial interest in the business or
profession of the taxpayer or relative of
such individual – Section 40A(2)(b)(iii)
Mr. A Mr. C
Assessee
(Taxpayer)
Mr. D
Relative
Substantialinterest>20%
Relative
Holding Structure

Type of transactions covered …
Case 3 – To a Company having substantial
interest in the business of the taxpayer or
any director of such company or relative of
the director – Section 40A(2)(b)(iv)
A Ltd
Mr. C
Assessee
(Taxpayer)
Mr. D
Relative
Director
Case 4 – Any other company carrying on
business in which the first mentioned
company has substantial interest – Section
40A(2)(b)(iv)
C Ltd
B Ltd
Assessee
(Taxpayer)
A Ltd
Holding Structure
Substantial
interest >20%
Substantial interest >20%

Type of transactions covered …
Case 5 – To a Company of which a director has a substantial interest in the business of the taxpayer
or any director of such company or relative of the director – Section 40A(2)(b)(v)
Mr. A
Mr. C
Assessee
(Taxpayer)
B Ltd
Director
Holding Structure
Substantial
interest >20%
Mr. D
Relative
20

Type of transactions covered..
Case 6 – To a Company in which the
taxpayer has substantial interest in the
business of the company – Section
40A(2)(b)(vi)(B)
B Ltd
Assessee
(Taxpayer)
Case 7 – Any director or relative of the
director of taxpayer having substantial
interest in that person– Section
40A(2)(b)(vi)(B)
Mr C
Mr B
Assessee
(Taxpayer)
A Ltd
Holding Structure
Substantial
interest>20%
Relative
D Ltd
21

Type of transactions covered
B
A
C
D E
Transaction Covered
A & B 
A & C 
A & D 
A & E 
B & C 
D & E 
C & D 
D & E 
22

Section 40A(2) – Example
A Ltd. B Ltd.
Substantial Interest
Payment of rent
Payment of Rent Rs. 1,000
ALP of Rent Rs. 800
Disallowance for A Ltd. Rs. 200
Corresponding Adjustment?
23

Issues and Challenges – 40A(2)(b)
• Direct vs Indirect ownership ?
• Shareholding to be considered for the purpose of beneficial ownership – Standalone
or Aggregate?
• Capital vs Revenue expenditure?
• Does this exclude transactions undertaken with non-residents?
• Director remuneration
• Corresponding adjustments
• Availability of APA
• Availability of DRP route for adjustments made in respect of domestic TP
transactions
24

Inter unit transactions between 2 eligible units is covered
S. 80IA(8) states as follows :-
“Where any goods or services held for the purposes of the eligible business are
transferred to any other business carried on by the assessee, or where any goods or
services held for the purposes of any other business carried on by the assessee are
transferred to the eligible business and, in either case, the consideration, if any, for such
transfer as recorded in the accounts of the eligible business does not correspond to the
market value of such goods or services as on the date of the transfer, …”
Accordingly, Sec. 80IA(8) requires that transfer of goods and services between the eligible
business and any other business (which includes eligible or non-eligible business) of the
taxpayer shall be at market value / Arm’s Length Price.
Reference to Memorandum to the Finance Bill 2012 (Page 24):
“Therefore, the transfer pricing regulations need to be extended to the transactions entered
into by domestic related parties or by an undertaking with other undertakings of the same
entity for the purposes of section 40A, Chapter VI-A and section 10AA.
26

Unit A
80IA- Eligible Unit Unit B
Taxable Unit
A Ltd
Section 80IA (8)- Example
Goods & Services
Transfer at Rs. 120
Market value of above goods and services is Rs. 100
So, ALP of above transaction is Rs. 100
27

Transactions Covered u/s 80-IA(10)
• Where it appears to the Assessing Officer that, owing to the “close connection”
between the assessee carrying on the “eligible business” and any other person, the
“course of business” between them is so arranged that the business transacted between
them produces to the assessee ‘more than the ordinary profits’, the Assessing Officer
shall, take the amount of profits as may be reasonably deemed to have been derived
therefrom.
• New insert - Provided that in case the aforesaid arrangement involves a specified
domestic transaction, the amount of profits from such transaction shall be determined
having regard to arm's length price.
• Section 80-IA(10) refers to the “course of business”, which may have a wider meaning
than business or a transactions, and may intend including the circumstances
surrounding the transactions. The ALP analyses the transaction more ‘holistically’ and
best represents such situations.

Section 80IA (10)- Example
A Ltd
Infrastructure
Business
B Ltd
Trading Business
Goods and Services
Close connection
Operating Profit: 40% (Extraordinary profits)
Industry Average: 10%
Hence, Arm’s length profit margin would be taken as 10%
80IA- Eligible Unit Taxable Unit
29

Illustration – Tax holiday undertakings
A Z
X & Y Yes
Y & Z No
X & Z Yes, if Z is
closely
connected
to A
X Y
• Requirement to justify that goods and services transactions are at arm’s length price
• Requirement that profits of undertaking are ‘ordinary profits’ having regard to ALP
Tax holiday
undertaking
DTA
undertaking
Transactions covered ?
30

Possible Tax Inefficiency
X Ltd.
(non-tax holiday)
Y Ltd.
(non-tax holiday)
Sale at 120 v/s
ALP
(ie 100)
Disallowance of
INR 20
[40A(2)(b)]
X Ltd.
(non-tax holiday)
Y Ltd.
(tax holiday)
Sale at 120 v/s
ALP (100)
Double Disallowance
INR 40
[40A(2)(b) and excessive
profit]
X Ltd.
(non-tax holiday)
Y Ltd.
(tax holiday)
Sale at 80 v/s
ALP (100)
Inefficient pricing
structure – Reduced tax
holiday benefit

Section 80IA (8) and Section 80IA (10)
Sec 80 IA (8) Sec 80- IA (10)
• Inter unit transaction of
goods or services
• Business transacted with any other person
generates more than ordinary profits
• Owing to either close connection or any other
reason
• Transfer at market value • Ordinary profit
• Onus of tax payer • Primary onus on taxpayer
• Onus on tax authorities

Issues and Challenges – Sec 80-IA
• Overlap with Sec 80A(6); of no material consequence
• No guidance on meaning of Close connection?
• Head office allocations to the units
• Loss making tax holiday units
• Aligning Ordinary profits with ALP

Intricacies of Value Threshold
• Threshold limit of INR 20 Crores to be taken on an aggregated basis for limbs of SDT
• Book value of transaction to be covered for Threshold limit even if transactions are ALP
compliant
Transaction Value as per
books
ALP Value as per
books
ALP
40A(2)(b)
payment
15 15 13 13
Inter-unit
transfer
4.5 6.5 8 6
Total 19.5 21.5 21 19
Reporting
requirement
Not required Required
INR in Crs
Interest free loan-80IA-10 ?
34

Documentation, Compliance &
Penalties

ALP Computation - Overview of Methods
Prescribed Methods
Other Method
- Price
Charged or
paid / would
have charged
or paid
Transaction based Methods Profit based Methods
CUP
Method
RPM
Method
CPM
Method
TNMM
Method
PSM
Method
No hierarchy or preference of methods prescribed under the Act
The methods applicable for determining ALP for SDT transactions are same as those for
international transactions

CUP Method
Independent
Co.
Sub. Co. A
Subsidiary
Internal CUP
Internal CUP is preferable
A Ltd
External CUP
A Ltd
Sub. Co. A
ltd
Sale of goods
Independent
Co.
Sale of goods
Similarity of
Functions, Asset
and Risks ?
Independent
Co.
Sale of goods
Sale of goods

RPM
Distributor I
Co. (AE)
USA India
Independent 3rd
Party
Product A @ Rs. 75
Product A
@ Rs. 100
Manufacturer
F Co.
25% resale (gross) margin earned - to be benchmarked
38

TNMM
Distributor -
Independent
Rs. Distributor - AE Rs.
Sales 75,000 Sales 100,000
Cost 41,250 Transfer Price (Bal.fig.) 60,000
Gross Profit 33,750 Gross Profit 40,000
Admin & Distribution 30,000 Admin & Distribution 35,000
Operating Profit 3,750 Operating Profit @ 5% 5,000
OP/Sales 5%
39

Profit Split
Particulars Rs. Rs.
Combined Group Profits 100
Assign basic return to each entity
• Entity A 30
• Entity B 20
• Entity C 10 60
Residual profit 40
Contribution analysis (based on relative contribution of
the entities)
• Entity A 30
• Entity B 10
Contribution Analysis –
Element of subjectivity

Other Method
Rule 10AB
“…….the other method for determination of the arms' length price in relation to an
international transaction shall be any method which takes into account the price which
has been charged or paid, or would have been charged or paid, for the same or similar
uncontrolled transaction, with or between non associated enterprises, under similar
circumstances, considering all the relevant facts.”
Effective AY 2012-13

Most Appropriate Method – Snapshot
Method Transaction Type
CUP Loans, royalties, commission, transfer of tangibles, guarantee
fees
RPM Distribution (without value addition)
CPM Sale of finished / semi-finished goods or services
PSM Highly integrated transactions, transactions involving unique
intangibles
TNMM Provision of services, manufacture / distribution of finished
goods
Other Method Revenue split, valuation of unique intangibles, business
transfers, valuation of unlisted shares, cost allocation,
reimbursements, etc.

Documentation Requirements

Accountant’s Report in Form 3CEB
On June 10, 2013, CBDT notified new Form 3CEB containing disclosure of SDT –
Part A to Form 3CEB
• Clause 9 – Aggregate Value of specified domestic transactions as per books of accounts
Part C to Form 3CEB
• Clause 21 – disclosure of PAN of the AE in addition to other disclosures
• Clause 22 - disclosure of expenditure for payment made / to be made to person referred to in Sec
40A(2)(b)
• Clause 23A – disclosure of inter-unit transactions (in the nature of sale by the eligible business/
unit of the taxpayer) as referred to in S. 80A(6), 80-IA(8) or 10AA
• Clause 23B – disclosure of inter-unit transactions (in the nature of purchase by the eligible
business/ unit of the taxpayer) as referred to in S. 80A(6), 80-IA(8) or 10AA
• Clause 24 – disclosure of business transacted with closely connected person (which has resulted in
more than ordinary profits to an eligible business/ unit of the taxpayer) as referred to in S. 80-
IA(10) or 10AA
• Clause 25 – disclosure of any other transaction not covered in the above clauses [residual clause]
44

Penalties
The Indian TP legislation prescribes stringent penalties for not maintaining/ furnishing
annual documentation and Accountant’s Report:
No deduction available for TP adjustments after scrutiny by the AO under
Sec. 10A, 10AA, 10B or Chapter VI-A
Default Nature of penalty
In case of a post-inquiry adjustment,
there is deemed to be a concealment
of income
100-300% of tax on the adjusted amount
Failure to maintain documents 2% of the value of each international transaction or specified
domestic transaction
Failure to furnish documents 2% of the value of each international transaction or specified
Failure to report a transaction in
accountants report (inserted by
Finance bill 2012)
2% of the value of each international transaction or specified
Maintaining or furnishing incorrect
information or documents
2% of the value of each international transaction or specified
45

Domestic Transfer Pricing- Litigation
Filed tax return and
Accountant’s Report
(30 Nov. 2013)
TP order
(31 January 2017)
Draft AO order (31
March 2017)
AO passes final order
(31 January 2018)
DRP order (31
December 2017)
ITAT
final fact finding
authority
High Court – on
questions of law
Supreme Court
46

Payment of Logo Charges
Holding Company
(ownership of
brand/trademark)
A Ltd
(Healthcare)
Payment of logo charges: 1.25% of sales by each entity to the holding co.
Benchmarking issues: how to evaluate ALP of logo charges
B Ltd
(Insurance)
C Ltd
(Home
Appliances)
48

Interest Free Loan
A Ltd. B Ltd.
SDT Implications
A Ltd. – Income is not covered ; no implication u/s 40A (2)
B Ltd. – No payment of interest; no implication u/s 40A (2)
B Ltd. – Possibility of disallowance on account of extra-ordinary profit u/s 80IA -10
Eligible Unit
Interest Free Loan
49

Four Step Action Plan
Identifying SDTs
 Identify inter company Transactions/ arrangements
that would be covered within the ambit of Domestic
TP provisions
 Map the transactions and document the current
policy of pricing/allocation
Understand implications
 Review the agreements/documents in support of the
current inter company pricing/allocations
 Analyze whether the current pricing policy of the
group are in line with the arm’s length principle
 Technical assessment of the arrangements to evaluate
applicability of SDT provisions and possible approach
for establishing ALP for the arrangements where SDT
applies
Compliance requirements
 Maintain prescribed TP documentation as stipulated
under Rule 10D of the ITL within the prescribed
due date (Nov 30, 2015 for FY 2014-15
transactions)
 Obtain and file Form 3CEB with the tax authorities
(Nov 30, 2015 for FY 2014-15 transactions)
Impact assessment
 Undertake Functional analysis of the identified
transactions
 Undertake a bench marking analysis
1 2
4 3
51

Relevant sections in Chapter X
Applicability similar to international transactions
Section Provisions Applicability of SDT
92 Computation of Income having regard to the Arm’s
Length Price (‘ALP’)
Yes
92A Meaning of Associated Enterprise No
92B Meaning of International Transaction No
92C Method for computing ALP Yes
92CA Reference to the TPO Yes
92CB Safe Harbour Rules Yes
92CC Advance Pricing Agreement No
92CD Effect of Advance Pricing Agreement No
92D Maintenance of information & documents Yes
92E Accountant’s Report Yes
144C Dispute Resolution Panel Yes
52

Thank You
Ajit Kumar Jain
+91 9619758917
cajainajit@gmail.com

Indirect shareholding under Sec. 40A(2)(b)(iv)
“Section 40A(2)(b)(iv) - “a company, firm, association of persons or Hindu undivided family having a substantial
interest in the business or profession of the assessee or any director, partner or member of such company, firm,
association or family, or any relative of such director, partner or member or any other company carrying on
business or profession in which the first mentioned company has substantial interest”
Explanation.—For the purposes of this sub-section, a person shall be deemed to have a substantial interest in a
business or profession, if,—
(a) in a case where the business or profession is carried on by a company, such person is, at any time during the
previous year, the beneficial owner of shares (not being shares entitled to a fixed rate of dividend whether with or
without a right to participate in profits) carrying not less than twenty per cent of the voting power;”
Company A
Company B Company C
Company D Company E
100%
100%100%
100%
Whether under SDT?
Whether
underSDT?

Substantial interest – consider individual shareholding
SDT not applicable in any of these
examples
However, once any one director of a
company holds shares more than 20% in
other company, all other directors of that
company will be considered as related
parties irrespective of their
shareholdings
Mr. X
Company A
(Assessee)
Relative of
Mr. X
Director X
Company
B
Assessee
Director Y
WhetherunderSDT?
Company
A
Relative Z
of Y8%

Director’s Remuneration
• Payment to directors including inter alia remuneration, sitting fees,
commission, perquisites etc., are covered under SDT provisions
• To clarify, a director includes any director of a company, regardless of the
nature of directorship
• The Delhi HC in the case of Shriram Pistons Ltd held that director payment
approved by company law board shall be reasonable under 40A(2)(b)
• Remuneration paid accordance with the Companies Act,2014 should not
attract disallowance
• For private limited company an external benchmarking may be required
considering similar qualification level, experience, skill set and operational
capacities

Close connection?
Particulars AS-18 40A(2)(b) 92A(2)
Voting Power >50% >=20% >=26%
Direct or indirect
holding
Both Direct Both
Directors Key Managerial
Personnel
Directors Not covered
Key Suppliers Specifically excluded Not covered More than 90% supplies

More than Ordinary Profits
Comparable Company OP/TC
Company A 35%
Company B 10%
Company C 25%
Company D 14%
Company E -8%
Arithmetic Mean 15%
Particulars PLI
Total Income 150
Cost 105
Profit 45
OP/TC 30%
• OP/TC of 30% considered to be at arm’s length by the TPO
• Under 80-IA(10), the AO states that the profits are more than ordinary.
• Possible solutions
- Defend price of transaction,
- Evaluate alternative methods (other than TNMM)

Specified domestic transactions - Vasai Branch of ICAI

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