International Transaction [Section 92B] – Transfer Pricing

  • Transfer pricing provisions are applicable to determine the arm’s length price of international transaction and specified domestic transaction. Though, specified domestic transactions are also part of the transfer pricing provisions, it predominantly deals with international transaction. Therefore, it is essential to understand the term which is provided in Section 92B (1)

Transaction between two or more AEs either or both are NRs.

Aesornrs
Aesornrs 1
Aesornrs 2

Summary

Summary

Question               

Which of the following is an international transaction?

  1. Nippon USA purchases goods from Nippon Japan amounting to $1 million
  2. Interest of Rs 10 crores paid by K Ltd (India) to Singapore branch of HSBC Bank
  3. K India purchases spare parts from its subsidiary P India Ltd amounting to Rs 2 lakhs
  4. Indian branch of R USA paying royalty to R Singapore (WOS of R USA) amounting to USD 10 million.

Answer d.

It is an international transaction. Both are AEs and both are non-residents and Indian branch of the non-resident which has business connection in India is paying the royalty.

Intangible property (‘IP’):

The term intangible property includes

Ip
Ip 1
Ip 2
  • To understand what constitutes an ‘International transaction’, we need to understand what ‘Transaction’ is. Section 92F defines the term ‘Transaction’ to include an arrangement, understanding or action in concert
  • Whether or not such arrangement, understanding or action is formal or in writing; or
  • Whether or not such arrangement, understanding or action is intended to be enforceable by legal proceeding.

Financing transaction

  • It was litigated whether receipt of security premium below market value in respect of issue of shares would be regarded as International transaction in the case of Vodafone India Services (P) Ltd vs UOI [2014] 50 Taxmann.com 300 (Bombay).
  • Vodafone India offered shares at a premium of Rs 8509 ( Face value of Rs 10) per share to its parent company. However, the AO and the TPO contended that the share premium ought to have been Rs 53,775 and treated the difference as income in the hands of the assessee.
  • It was held in the court as follows:
  • The activity of issue of shares to AE at a price below the FMV does not give rise to any income. There should be income arising from international transaction on application of TP provisions
  • Income will not include capital receipts, unless such receipts are specifically covered. The share premium is a capital amount and cannot come within the purview of international transaction CBDT’s instruction No.2/2015 dated 29-01-2015
  • CBDT had also accepted the judgement of Bombay High Court and did not appeal further. So this the settled position now.

Question

HML India issued 10,000 shares at Rs.110 (face vale of Rs.10 each) at a premium of Rs.100 per share to its holding company, R International. Choose the correct statement

  1. Transfer pricing provisions would not be applicable on such transaction irrespective of the market value of shares
  2. Transfer pricing provisions would be applicable on such transaction when the fair market value of share is Rs.150 per share.
  3. Transfer pricing provisions would be applicable on such transactions when the fair market value of shares is Rs.90 per share

Answer a.

Based on the Vodofone ruling by Bombay HC, the activity of issue of shares to AE at a price below the FMV does not give rise to any income. There should be income arising from international transaction on application of TP provisions.

Deemed International Transaction – Section 92B(2)

  • Where in respect of a transaction entered into by an enterprise with a person other than an AE (‘Other Person’)
  • There exists a prior agreement in relation to the relevant transaction between the other person and the AE
  • Where the terms of the relevant transactions are determined in substance between such other person and the AE and
  • Either the enterprise or the AE or both of them are NRs
  • Then such transaction entered into between the enterprise and the other person shall be deemed to be an international transaction entered in between AEs whether or not such other person is a NR.

Example

  • Let us say that A India Ltd (‘A’) has an AE B US Inc (‘B’). B has entered into a contract with C India Ltd (‘C’) for supply of certain laptops to all its subsidiaries across the world. Pursuant to that contract, if A purchases laptop from C, then that transaction would be deemed to be an international transaction. In this example, it is immaterial if C is a resident or a non-resident until either A or B or both are non-resident.

Question

A Ltd (India) is the subsidiary of AB International (USA). A Ltd import certain goods from B international (Singapore), independent third party. There exists a prior agreement between B International and AB International (USA) for import of such goods. Such transaction of import from third party:

  1. Shall not be deemed to be an international transaction as both parties (i.e. A Ltd and AB International) are not associated enterprises
  2. Shall be deemed to be an International transaction even of transaction is made with Independent third party
  3. None of the above

Answer b. Where in respect of a transaction entered into by an enterprise with a person other than an AE (‘Other Person’), there exists a prior agreement in relation to the relevant transaction between the other person and the AE, Where the terms of the relevant transactions are determined in substance between such other person and the AE and either the enterprise or the AE or both of them are NRs, then it would be regarded as deemed international transaction

Dispute Mitigation strategies in transfer pricing

Dispute Mitigation strategies in transfer pricing Determining ALP is not an exact science and often may lead to different answer depending on many factors.This has resulted in huge litigation leaving the assessee and the income tax authorities often in the loggerheads.The data available at the time of concluding the agreement / …
Read More

Advance Pricing Agreements (APA)

Advance Pricing Agreements (APA) APA objective APA is an agreement between the taxpayer and the taxing authority on an appropriate transfer pricing methodology for a set of transactions over a fixed period of time in future. Section 92CC empowers the Board to enter into APA with any person undertaking an international transaction.Purpose …
Read More

Mutual Agreement Procedure

Mutual Agreement Procedure Mutual Agreement Procedure (‘MAP’) is a procedure set out in most treaties which permit designated Government representatives to work together to resolve international tax disputes including issues involving double taxation, questions regarding residential status, tax recovery etc. MAP is used to eliminate double taxation that can arise from transfer …
Read More

Fundamentals of Base Erosion and Profit Shifting – Transfer Pricing

Fundamentals of Base Erosion and Profit Shifting – Transfer Pricing Introduction In the past few decades, the world has seen large movement of capital and investment from developed and developing countries.This has resulted in huge economic development, boosted trade and increases foreign direct investment in various countries.Many developing countries (low – cost …
Read More

Additional reporting by Multinational companies – Transfer pricing

Additional reporting by Multinational companies – Transfer pricing The OECD had devised many action plans to combat BEPS. OECD also recommended a three-tier documentation approach for transfer pricing under Action Plan 13. Three tier documentation Advantages of three tier reporting Elements of CbC and Master File reporting requirement and related matters have been incorporated …
Read More

Anti-Avoidance measures in certain jurisdictions – Transfer pricing

Anti-Avoidance measures in certain jurisdictions – Transfer pricing Specific anti-avoidance measures in respect of transactions with persons located in Notified Jurisdictional area was introduced in the Act under sec 94AWe have seen in earlier sections that transactions with the AEs are subject to transfer pricing provisions.This is generally sufficient to cover …
Read More

Subscribe to our News Letter

Get periodical updates from us

Subscribe to our News Letter

I hope you enjoy reading this blog

Scroll to Top