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New ITAT bench to untangle MNC transfer price muddles
November, 10th 2006

Multinational companies, currently confused over the contradicting transfer pricing regime in India, will get a special bench from the Income Tax Appellate Tribunal (ITAT) for clearing issues on cross-border transactions.

A case which the proposed ITAT bench will seek to settle is the question over the legality of the Central Board of Direct Taxes (CBDT) instruction No-2, which stipulated that any cross-border transaction worth Rs 5 crore or more should be referred to the transfer pricing officer for assessment.

ITAT will also decide whether it is necessary to prove that there is prima facie evidence regarding the concealment of income before the matter is referred to the transfer pricing assessment.

The ITAT decided to take up this issue following a controversy created by an appellate commissioners order in the case of Aztec Software & Technology Services, Bangalore, which challenged the legality of instruction No-2 and observed that the assessee should have been given an opportunity to be heard before the commissioner transferred the case for transfer pricing assessment.

Shri Vimal Gandhi, President, ITAT, said that the special bench will function for at least three days from January 8, 07, in Bangalore to decide upon certain issues which figure commonly in most transactions. The members of the bench will be appointed soon.

The orders of the special bench will be binding on all such issues that come up for assessment. The steps taken up by the tribunal to clear the issues will send a positive signal to the international business community, TP Ostwal, senior chartered accountant, said.

This is the first time a special bench was formed for deciding on transfer pricing issues. Transfer pricing rules first came into force in India in 01, in view of the increasing participation of multinational entities in economic activities in the country.

This has given rise to new and complex issues emerging from transactions between two or more enterprises belonging to the same multinational group. Transfer pricing rules were framed for computation of reasonable, fair and equitable profits and tax in India.

The Finance Act, 01, replaced Section 92 with Sections 92A to 92F in the Income Tax Act, covering income from international transactions and expressions such as arms length price, associated enterprise, documentation pertaining to international transactions etc.

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