Brief Note on Domestic Transfer Pricing

Under Section 40A(2) of Income Tax Act, 1961 in case of any transaction with a related party, the Assessing Officer can disallow the expenditure while computing income from business or profession which in his opinion is excessive or unreasonable having regard to the Fair market value of the goods, services or facilities for which expenditure has been incurred. In case the Assessing Officer is of the opinion that such income is low considering the market value, there is NO mechanism to re-compute the income received from a related party, since this section focuses on EXPENDITURE. In order to address this issue, the provisions of Transfer Pricing are being amended to extend the scope to “Specified Domestic Transactions” by amending Section 92 of the Act.

“Specified Domestic Transactions” have been defined in a new Section 92BA as following transactions where the aggregate of such transactions entered into by the assessee in a year exceed Rs. 5 Crores:

Section 40A: Any payment made or to be made in respect of expenditure incurred to persons specified in section 40A (2) (b). i.e. related parties

Section 80A: Any transaction in relation to transfer of goods or services from eligible business (refer sec. 35AD) to non-eligible business, vice versa.

Section 80IA(8): Any business transaction in relation to transfer of any goods or services between units of the assessee i.e. inter units transfers.

Section 80IA(10): Any business transaction between the assessee (covered under 80IA) and his associated entities.

Section 80-IB, 80-IC, 80ID, 80-IE AND 10AA: Any business transaction entered between the assessee who is eligible for 80-IB, 80-IC, 80ID & 10AA and associated entities or inter unit transfer between the eligible business of the assessee and his non-eligible business.

Any other transactions as may be prescribed.

Because of the above tax deductions, there could be transaction between the related party which is been carried out to eliminate/reduce tax liability by shifting profits to tax holiday entities.

It has been further provided by inserting a new subsection (2A) in Section 92 that any allowance or any expenditure or interest or allocation of any cost or expense or any income in relation to specified domestic transaction shall be computed having regards to Arm’s Length Price (ARM), meaning thereby the specified domestic transaction will be tested applying arm’s length (ARM) principle.

Accordingly corresponding amendment is been made in the procedural laws of transfer pricing to cover domestic transactions i.e.

1.  Section 92C for computation of arm’s length price by the method prescribed,

2.  Section 92D maintenance and keeping of information and document,

3.  Section 92E obtaining report from Chartered Accountant in respect of specified domestic transactions,

4.  Section 92CA being reference to the Transfer Pricing Officer,

5.  Penal provisions of Section 271(1), Explanation 7 regarding concealment,

6.  Section 271AA penalty for failure to keep and maintain information and

7.  Section 271G penalty for failure to furnish information or document.

Further the section 40A(2)(b)(ii)  scope of the related party is being expanded to cover cases of companies which have the same parent company by providing that “any other company carrying on business or profession in which the first mentioned company has substantial interests” shall be considered to be a related party.

Compliance of Domestic Transfer Pricing increases the compliance cost substantially which may be beyond the means of small taxpayer. In International Transactions, the country looses tax through the transactions with Associated Enterprises located overseas. However in domestic transactions, the country does not loose tax even though the taxable transaction between two related parties are not at arm’s length, still there are no tax implications if the both such entities are in same tax bracket.

It is a normal practice may be because of regulatory requirement or because of family set up or development and structuring of business over the period one entity related to other may be selling its products or providing services despite both such entities falling in same tax brackets and there being no net tax effect still there will be requirement on both these entities of maintaining and complying all complex transfer pricing regulations. The cost of such compliance will be too high as compared to nominal margin of profits.

The threshold of Rs. 5 Crores may not also be helpful as in manufacturing or trading of goods this is too little and the total margin earned in such transactions may not be sufficient to meet the cost of compliance.