Transfer Pricing

Chapter 1 Introduction of the Topic TRANSFER PRICING TRANSFER PRICING is a term used to describe all aspects of inter Company pricing arrangements between related business entities, and commonly applies to inter Company transfers of tangible and intangible property. Inter Company transactions across borders are growing rapidly and are becoming much more complex. Transfer pricing refers to the internal pricing system that is used when divisions in the same firm deliver products or services to each other.

The transfer price is a cost for the receiving division and revenue for the supplying division, so it affects the financial result of both divisions involved. Transfer prices can be based on market prices, but for various reasons a market-based transfer price might not be appropriate: transactions taking place between the divisions of the same firm are often unique and would not be offered stand-alone on the market. In practice, therefore, cost-based and negotiated transfer prices are used apart from market-based prices.

Transfer pricing, for tax purposes, is the pricing of inter Company transactions that take place between affiliated businesses. The transfer pricing process determines the amount of income that each party earns from that transaction. Taxpayers and the taxing authorities focus exclusively on related-party transactions, which are termed controlled transactions, and have no direct impact on independent-party transactions, which are termed uncontrolled transactions. Transactions, in this context, are determined broadly, and include sales, licensing, leasing, services, and interest

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In India also, considering the importance of Transfer Pricing, Section 92 of the Income-tax Act, 1961 (‘the Act’) empowered tax authorities to make adjustments to income on arm’s length basis in case of transactions between residents and nonresidents having ‘close connection’. Also, section 40A (2) (a) was introduced in the Statute, giving powers to the assessing officer to disallow the expenditure incurred in respect of which payment is made to related parties, if assessing officer is of the opinion that such expenditure is excessive or unreasonable.

However, these sections were limited in scope and had certain inadequacies viz. the term ‘close connection’ was not defined, there were no rules concerning documentation, the burden of proof was on the assessing officer, no rules were prescribed for determining arm’s length prices etc. On the Customs side, under the Customs Valuation (Determination of Price of Imported Goods) Rules, 1988, there were provisions for rejecting the transaction value when the buyer and seller were related persons or when they had interest in one another’s businesses.

Corporate the world over are expanding their wings in an effort to gain a share of the global pie. There is talk of the world fast turning into a global village with economies increasingly becoming inter-connected. But with cross-border trade comes a whole new set of problems, Transfer pricing is one of them. When a company opens a branch in another country, gets its products manufactured there and then imports it, there is a question mark over what price should the parent pay for buying the product from the subsidiary.

This price till now has been subject to the parent’s discretion and has been used by many corporate the world over to control the tax outgo to their Government. In effect, the price at which goods are transferred from one arm of the company to another is known as transfer pricing. The Finance Act 2001 introduced the detailed Transfer Pricing Regulations (T. P. R. ) in India from 1stApril 2001 APPROACHES TO TRANSFER PRICING Taxation that is based on transfer pricing is becoming an important issue for many companies, whether U. S. based or foreign based.

The regulations have sought to impose extensive general principles and guidelines that apply when the taxpayer selects the transfer pricing method. These methods impose penalties on an inappropriate choice of a transfer pricing method. In addition, the administrative cost of complying with the regulations can be extensive. As a result, implementation of the transfer pricing regulations may impose significant costs on the taxpayer above and beyond the taxes themselves. Faced with this transfer pricing onslaught, businesses have chosen different approaches to the tax aspects of transfer pricing.

At the outset, the selection of a transfer pricing strategy is determined by three factors: 1. Taxes imposed on the transfer pricing decision 2. Administrative time and expense incurred 3. Potential penalties (which are discussed next) Over the past decades, the topic of ‘transfer pricing’ has continuously attracted attention in the literature. The reasons for this intensive degree of attention are diverse. Lots of managers, in particular CFOs and controllers, can elaborate on the number of hours spent in order to reach a transfer pricing policy that is satisfactory and acceptable for all organizational members involved.

Tax managers in multinational enterprises (MNEs), from their side, will explain the difficulties they encounter when fulfilling the transfer pricing tax rules in the different countries in which they operate. This article focuses on the dual role of transfer pricing – managerial versus tax compliance and sheds insights by approaching these issues from a corporate governance perspective. [pic] It is a well known fact that Multi-National Enterprises (MNEs) have found India conducive to set up their operations, largely because of the availability of a skilled work force at reasonable costs.

Investments into India result in transactions between the Indian and the parent company as also between the Indian company and other foreign group companies. Such transactions could encompass sale of goods, provision of services, licensing of intangibles, to give a few examples. These transactions give rise to transfer pricing issues. Transfer prices are important for both tax payers and tax authorities because they determine, in large part, the income, expense and taxable profits of the associated (group) enterprises in different tax jurisdictions.

Effective April1, 2001, India introduced a comprehensive TP legislation as an anti-avoidance measure. The Indian TP regulations are broadly based on the transfer pricing guidelines issued by the Organization for Economic Co-operation and Development (OECD), but are unique in some respects. The Indian TP regulations mandate that international transactions with related parties shall be determined having regard to the arm's length price, i. e. the price that would be charged by enterprises in an uncontrolled transaction. In India, not only are taxpayers selected for compulsory audits based on quantitative parameters i. . international transactions in excess of INR 50 million in a fiscal year (proposed to be increased to INR 150 million), but further, Indian tax authorities are seen as adopting an increasingly aggressive approach on TP related issues. In several cases, in the recent past, taxpayers faced significant challenges in defending their transfer prices. Taxpayers typically defend their transfer prices as being at arm's length by conducting a transfer pricing study and comparing their net margins with those earned by comparable uncontrolled enterprises.

Therefore, whether a particular transfer price is accepted as being at arm's length or not depends to a large extent on the process of selecting comparable data for the analysis. The lack of quality comparable data in public domain is a challenge faced by the taxpayers while preparing their documentation. This challenge is further compounded by the approach adopted the Transfer Pricing Officers (TPOs) during audits. In addition to using comparable data which was not available at the time of preparing the documentation, TPOs have also resorted to "cherry-picking" of comparables (especially y eliminating loss making/ low turnover comparables) rather than adopting an objective approach to identifying and screening the comparable companies. This approach creates a bias in favor of profitable companies in the comparable data, resulting in transfer pricing adjustments for the taxpayers. The worst affected were captive service providers, which bear little or no risks as they deal with parent or group companies as compared to comparable uncontrolled transactions undertaken by other companies which cater to third parties and bear a range of risks including recovery of the price from the third party customers. or captive service providers. It is a fundamental economic principle that entities which However, in a number of instances, TPOs have largely ignored the importance of risk in a transfer pricing analysis and determined high mark ups on costs, to be the arm's length margin do not undertake risks can expect to earn a lower rate of return. Recently, The Delhi Income Tax Appellate Tribunal (ITAT) has revived the hopes of tax payers in India. This decision was given in the case of a captive service provider, Mentor Graphics (Noida) Private Limited, engaged in rendering software services to its US parent.

The decision has laid down certain broad principles that could have a significant influence on transfer pricing in India. Steps of Transfer Pricing The scope for Transfer Pricing in such transactions also increases in cases with ‘tie-in’ clauses in licensing agreements or technical/financial collaborations which require the purchase of goods from the licensor or party designated by the licenser. There are three aspects of Transfer Pricing which are:- i) Motivational and Operational Aspect, ii) Regulation of Transfer Pricing, iii) Estimation and control. i) Motivational and Operational Aspect:- Operational and financial manipulations for transfer pricing take the form of false invoicing. This is defined by the OECD Committee on Fiscal Affairs (1976), as- “A transaction intended to evade tax by putting taxable objects outside the reach of national tax authorities by means of an invoice that does not accord with economic facts” This object is achieved through both under and over invoicing (of imports and exports), often by the same company. Policy induced motivation for transfer pricing manipulations may arise because of both tax and non-tax factors.

Corporate tax rates and fiscal provisions, exchange rate fluctuations and import duties as also labor laws, policies restricting monopolies International tax avoidance to achieve these and other objectives may occur through general manipulations, as well as through specific items in the balance sheet and the profit and loss account. In BS loans to foreign affiliates may represent the repatriation of foreign profits in an attempt to avoid domestic payment of dividends, as also may excessive balances with affiliates.

Write-off of inter company debt may be attempted to reduce balances that may have resulted from non arms length transaction. Omissions in the balance sheet of expected assets or liabilities may indicate transfer or sale of intangible assets like patents, know-how etc to tax affiliates. In P&L A/c, R and D expenditures may be hidden, pooled or distributed to avoid taxes; royalties may be excessive and may go to unlikely recipient affiliates; patents and trademarks may be charged for at monopolistic rates, or involve reciprocal benefits and may be prices even after their expiry.

In case of payments, for both royalties and patents and trademarks, to affiliates the charges may not meet with the arm’s length criterion. Payments for home-office administrative support, R and D etc. , may be excessive and may contain hidden profits which are not assessed in the country of receipt. Sales of partly finished goods, third party commissions or discounts to foreign affiliates, unexpected purchases or sales, rentals, office and travel expenses, changes in the pattern of accounts, liquidation and sales of foreign affiliates etc. also provide ample opportunity for transfer pricing and consequently tax avoidance. (ii) Regulation of Transfer Pricing:- In a mixed economy like ours this could mean a misallocation of resources, accompanied by an adverse redistribution of incomes away from national entities and the related BOP effects. Before dealing with transfer pricing before it can occur and after it has occurred, policy regulation is therefore also required, to deal with its macro economic consequences.

The adverse impact on host government foreign exchange; revenue losses and the consequent implications for internal resources mobilization; distortion in the functioning of specific policy instruments resulting in the non-achievement of plan targets; all call for an active role of the state. Similarly, at the micro level the proliferation of market concentration and oligopolistic practices require state intervention. (iii) Estimation and Control:- 1).

Any proper appraisal of the scope of transfer pricing manipulations on the part of transnational corporations, and of their actual practice must be assessed within the framework of the specific set of government measures and structural factors endemic to TNCs which tend to be the motivational forces behind such practices. 2). Abandon the free market model and allow for a changed role of the state, from one of trying to restore some traditional version of market relations to that of an active intervener in the struggle over international distribution of surplus.

Keeping in mind these approaches, we would like to focus on the problem of estimation the extent of pricing manipulations by TNCs, in various sectors and industries in developing countries, in the context of relevant government policies and regulations. Exemption for Bankers Bankers have sought an exemption from the provisions of transfer pricing regulations. When banks extend loans and guarantees by way of investment in equity, this may lead to the specified shareholding limits being exceeded.

Though the banks may not have any control over the company, such transactions are subjected to transfer pricing rules of the Income Tax Act. In their meeting with the finance minister earlier this month, public sector banks had said banks should be excluded from the purview of the transfer pricing provisions under the income tax law. Current regulations also cover loans advanced for not less than 51% of the book value of the total assets of the borrower and guarantees granted for more than 10% of the total borrowings of the guarantor. But experts feel that banks do not usually have so much exposure to a single borrower.

Banks provide financial assistance to various corporate and non-corporate clients by way of investment in equity or preference shares, subscription to debentures, loans and guarantees. Under section 40A(2) of the Income Tax Act, any expenditure incurred between related parties treated as unreasonable by the assessing officer is not allowed as a deduction. This section empowers an assessing officer to disallow deduction of any expenditure incurred between related parties and considered by the officer as excessive or unreasonable having regard to the fair market value of the goods, services or facilities.

Similar restrictions are applicable to banks according to the transfer pricing provisions under sections 92 A to 92F. The scope of related person under section 40A(2) for a banking company includes a person in whom it has a substantial interest in the business, where ownership of shares is not less than 20% of the voting power. However, according to Reserve Bank of India regulations, voting powers are limited to 10%, irrespective of the ownership of shares.

The transfer pricing provisions (sections 92 to 92F) only apply to transactions between two non-residents or between a resident and a non-resident and not to transactions between Indian banks and Indian counterparties. “While the transfer pricing provisions can be applied to transactions between the foreign subsidiaries of Indian banks and Indian counterparties, only under very rare exceptions do such foreign subsidiary banks have an exposure to unrelated borrowers to bring their transactions within the transfer pricing rules. “Also, it is unlikely that transactions between Indian branches of foreign banks and Indian counterparties would result in a loan greater than 51% of the book value of assets of the borrower for the transfer pricing rules being made applicable to genuine third party transactions. The objective of transfer pricing is that the correct amount of profits should be retained within the country and thus the transfer pricing provisions should be made inapplicable to transactions between Indian branches of foreign banks and the group’s related Indian companies,” Mr Wadhwani added.

While lending, banks may grant loans at fluctuating rates compared with market rates after factoring in risk factors, creditability and type of industry. Given that the pricing adopted is within the framework of norms outlined by banks that are regulated by RBI, the Indian Banks Association is of the view that banks should be removed from the purview of such sections TYPICAL CASH FLOW The question arises that how the transfer price can be used as a mechanism to evade tax, especially between countries that have a treaty against double taxation. To explain this let’s take an example.

Suppose there is an MNC shoe corporation with a subsidiary in India. The Indian subsidiary manufactures shoes at a cost price of Rs 50 per unit and supplies it to the MNC. The MNC sells the same shoes in its own country at Rs 200. To be fair, the transfer price, which the Indian subsidiary should get, is cost plus a reasonable rate of return (i. e. Rs 50 plus). This is where the MNC company calls the shots. In India, the corporate tax on profits is at 35%. Suppose for the MNC country the rate of tax is 45%. Case 1. The MNC decides that Rs 100 is the correct transfer price.

Then the scenario looks like this: Transfer Price at Rs 100 |Indian subsidiary |MNC |Grand Total | |Cost price |50 |100 |  | |Selling price |100 |200 |  | |Profit |50 |100 |150 | |Tax |17. 5 |45 |62. 5 | |Net Profit |32. 5 |55 |87. 5 | The transfer price becomes the cost price for the MNC and thus it earns a profit of Rs 100 per unit. Post tax, its profit is whittled down to Rs 55. Overall, the total profit after tax earned by the MNC (including the subsidiary’s profit) is Rs 87. per unit. Case 2. The MNC decides that Rs 150 is the correct transfer price. Then the scenario looks like this: Transfer Price at Rs 150 |Indian subsidiary |MNC |Grand Total | |Cost price |50 |150 |  | |Selling price |150 |200 |  | |Profit |100 |50 |150 | |Tax |35 |22. 5 |57. 5 | |Net Profit |65 |27. 5 |92. 5 | The MNC’s profits post tax in its own country comes down to Rs 27. 5. But overall the profit surges to Rs 92. 5 per unit.

Case 3. The MNC decides that Rs 200 is the correct transfer price. In such a case, the MNC earns zero profits in its own country, but its subsidiary pays a 35% tax on its profit of Rs 150 and thus overall net profit surges to Rs 97. 5. Transfer Price at Rs 200 |Indian subsidiary |MNC |Grand Total | |Cost price |50 |200 |  | |Selling price |200 |200 |  | |Profit |150 |0 |150 | |Tax |52. 5 |0 |52. 5 | |Net Profit |97. 5 |0 |97. 5 |

Case 4. The MNC decides that Rs 300 is the correct transfer price. In this case, the MNC earns a loss of Rs 100 per unit of shoe sold in the home country. Meanwhile, its subsidiary earns Rs 162. 5 as profit, after paying Rs 87. 5 as tax. But the clever MNC gets a tax write off at home worth Rs 45 m. Transfer Price at Rs 300 |Indian subsidiary |MNC |Grand Total | |Cost price |50 |300 |  | |Selling price |300 |200 |  | |Profit |250 |-100 |150 | |Tax |87. 5 |-45 |42. | |Net Profit |162. 5 |0 |192. 5 | Please remember, these are just a few hypothetical simple situations. In reality, these dealings are much more complex with conglomerates having more than 50 subsidiaries in just as many countries. Transfer pricing became a subject of much debate in the western countries as government’s felt that corporates are down paying their fair share of tax. As a result, these countries spearheaded awareness regarding transfer pricing. Case Study High Court Rules Against Coca-Cola in Transfer Pricing Case

M Padmakshan Economic Times January 6, 2009 MUMBAI: The Punjab & Haryana High Court has ruled against Coca-Cola India's contention that the proof of profit transfer outside India is a precondition for applying transfer pricing rules. Coca-Cola had approached the high court after it was served a notice on transfer pricing. The soft drink company had an agreement to offer advisory services to Britco at the rate of cost plus 5%. Coca-Cola's main contention was that transfer pricing rules cannot be applied in the absence of prima facie evidence of profit transfer outside India.

The high court said that India's transfer pricing rules can be applied to any cross-border transaction between associated enterprises, irrespective of profit transfer outside India. The court said the only requirement is income generation in a cross-border transaction and income has been computed at arms length. Coca-Cola told the court that transfer pricing rules were meant to check profit erosion outside India and therefore could not be applied in cases where there is no prima facie evidence of profit transfer outside the country.

The high court did not accept this view. It held that existence of a cross-border transaction and computation of the resultant income at arm's length price are sufficient grounds for applying transfer pricing rules. According to Coca-Cola, the transfer pricing provisions have been incorporated in the Income-tax Act by the Finance Act 2001 and the applicability of these provisions has been limited to situations involving profit diversion outside India. There is no material evidence to show that profits have been diverted outside India, the company said.

The court said that it is the prerogative of the income-tax department to issue such a notice and expressed its inability to intervene in the matter. Coca-Cola was assessed under I-T Act in 2004 for the year 1998-99. The dispute arose after the income-tax department concluded that the income had escaped assessment under the Income-Tax Act. FAIR USE NOTICE: - This document contains copyrighted material whose use has not been specifically authorized by the copyright owner.

India Resource Center is making this article available in our efforts to advance the understanding of corporate accountability, human rights, labor rights, social and environmental justice issues. We believe that this constitutes a 'fair use' of the copyrighted material as provided for in section 107 of the U. S. Copyright Law. If you wish to use this copyrighted material for purposes of your own that go beyond 'fair use,' you must obtain permission from the copyright owner. Arm’s Length Method

Arm’s length, as the term indicates, means keeping a neutral balance between inter-corporate arms. The idea is that companies should treat each subsidiary as a separate entity and deal with them on purely commercial terms, as they would have if they transacted with any other market player. Arm’s length methodologies are of two types:- a) Transactional Methods b) Profit Methods Transactional Methods – Where focus is on the product or the technology to ascertain the correct transfer price. Transaction methods can be further divided into three broad sub-groups. ) Comparable Uncontrolled Price Method 2) Resale Price Method 3) Cost Plus Method (1) Comparable Uncontrolled Price (CUP) Method: The price charged or paid in a comparable uncontrolled transaction or a number of such transactions shall be identified. Such price shall be adjusted to account for differences, if any, between the related party transaction and the comparable uncontrolled transactions or between the enterprises entering into such transactions, which could materially affect the price in the open market.

The adjusted price shall be taken as arm’s length price. The uncontrolled transaction means a transaction between independent enterprises other than related parties and shall cover goods or services of a similar type, quality and quantity as those between the related parties and relate to transactions taking place at a similar time and stage in the production/distribution chain with similar terms and conditions applying. (2) Resale Price Method:

The price at which the goods purchased or services obtained from a related party is resold or is provided to an unrelated entity shall be identified. Such resale price shall be reduced by the amount of a normal gross profit margin accruing to the enterprise or to an unrelated enterprise from the purchase and resale of the same or similar goods or services in a comparable uncontrolled transaction or a number of such transactions. The price so arrived at shall be further reduced by the expenses incurred by the enterprise in connection with the purchase of goods or services.

Such price shall be further adjusted to take into account the functional and other differences including differences in accounting practices, if any, between the related party transaction and the comparable uncontrolled transactions or between the enterprises entering into such transactions, which could materially affect the amount of gross profit margin in the open market. The adjusted price shall be taken as arm’s length price in respect of goods purchased or services obtained from the related party.

The resale price method would normally be adopted where the seller adds relatively little or no value to the product or where there is little or no value addition by the reseller prior to the resale of the finished products or other goods acquired from related parties. This method is often used when goods are transferred between related parties before sale to an independent party. (3) Cost Plus Method: The total cost of production incurred by the enterprise in respect of goods transferred or services provided to a related party shall be determined.

The amount of a normal gross profit mark-up to such costs arising from the transfer of same or similar goods or services by the enterprise or by an unrelated enterprise in a comparable uncontrolled transaction or a number of such transactions shall be determined. The amount of a normal gross profit mark-up shall be adjusted to take into account the functional and other differences, if any, between the related party transaction and the comparable uncontrolled transactions or between the enterprises entering into such transactions, which could materially affect such profit mark-up in the open market.

The total cost of production referred to above increase by the adjusted profit mark-up shall be taken as arm’s length price. It is also important here to ensure that the cost base to which mark-up is applied is comparable to the cost base of the third party transaction which serves as comparable. For example, it may be necessary to make an adjustment to cost where one person leases its business assets while other owns its business assets.

The cost plus method would normally be adopted if CUP method or resale price method cannot be applied to a specific transaction or where goods are sold between associates at such stage where uncontrolled price is not available or where there are long term buy and supply arrangements or in the case of provision of services or contract manufacturing. Profit method- It has been further sub-divided into three sub-groups i) Profit Split Method ii) Transactional Net Margin Method iii) Authentication of Documents Provided by the Company (1) Profit Split Method:

The combined net profit of the related parties arising from a transaction in which they are engaged shall be determined. This combined net profit shall be partially allocated to each enterprise so as to provide it with a basic return appropriate for the type of transaction in which it is engaged with reference to market returns achieved for similar type transactions by independent enterprises. The residual net profit, thereafter, shall be split amongst the related parties in proportion to their relative contribution to the combined net profit.

This relative contribution of the related parties shall be evaluated on the basis of the function performed, assets employed or to be employed and risks assumed by each enterprise and on the basis of reliable market data which indicates how such contribution would be evaluated by unrelated enterprises performing comparable functions in similar circumstances. The combined net profit will then be split amongst the enterprises in proportion to their relative contributions. The profit so apportioned shall be taken into account to arrive at an arm’s length price

This method would normally be adopted in those transactions where integrated services are provided by more than one enterprise or in the case multiple inter-related transactions which cannot be separately evaluated. 1) Transactional Net Margin Method : The net profit margin realized by the enterprise from a related party transaction shall be computed in relation to costs incurred or sales affected or assets employed or to be employed by the enterprise or having regard to any other relevant base.

The net profit margin realized by the enterprise or by an unrelated enterprise from a comparable uncontrolled transaction or a number of such transactions, shall also be computed having regard to the same base. This net profit margin shall be adjusted to take into account the differences, if any, between the related party transaction and the comparable uncontrolled transactions or between the enterprises entering into such transactions, which could materially affect such net profit margin in the open market.

The cost of production referred to above increase by the adjusted profit mark-up shall be taken as arm’s length price. The adjusted net profit margin shall be taken as arm’s length price. This method would normally be adopted in the case of transfer of semi finished goods; distribution of finished products where resale price method cannot be adequately applied; and transaction involving provision of services. (3) Authentication of the documents provided by the company

The information/documents provided by the company to the auditor for certification as provided in clause 7 hereof shall be signed on behalf of the Board by the Company Secretary and at least one Director of the company. In the absence of Company Secretary in the company, the same shall be signed by at least two Directors of the company on behalf of the Board. [pic] The most appropriate method referred to in sub-section (1) shall be applied, for determination of arms length price, in the manner as may be prescribed: Provided that where more than one price is determined by the most appropriate method, the arms length price shall be taken to be the arithmetical mean of such prices, or, at the option of the assessee, a price which may vary from the arithmetical mean by an amount not exceeding five per cent of such arithmetical mean. ] Where during the course of any proceeding for the assessment of income, the Assessing Officer is, on the basis of material or information or document in his possession, of the opinion that:- (a)The price charged or paid in an international transaction has not been determined in accordance with sub-sections (1) and (2); or b)any information and document relating to an international transaction have not been kept and maintained by the assessee in accordance with the provisions contained in sub-section (1) of section 92D and the rules made in this behalf; or (c)The information or data used in computation of the arms length price is not reliable or correct; or (d)the assessee has failed to furnish, within the specified time, any information or document which he was required to furnish by a notice issued under sub-section (3) of section 92D,

The Assessing Officer may proceed to determine the arms length price in relation to the said international transaction in accordance with sub-sections (1) and (2), on the basis of such material or information or document available with him: Provided that an opportunity shall be given by the Assessing Officer by serving a notice calling upon the assessee to show cause, on a date and time to be specified in the notice, why the arms length price should not be so determined on the basis of material or information or document in the possession of the Assessing Officer.

Where an arms length price is determined by the Assessing Officer under sub-section (3), the Assessing Officer may compute the total income of the assessee having regard to the arms length price so determined: Provided that no deduction under section 10A 82[or section 10AA] or section 10B or under Chapter VI-A shall be allowed in respect of the amount of income by which the total income of the assessee is enhanced after computation of income under this sub-section :

Provided further that where the total income of an associated enterprise is computed under this sub-section on determination of the arms length price paid to another associated enterprise from which tax has been deducted 83[or was deductible] under the provisions of Chapter XVIIB, the income of the other associated enterprise shall not be recomputed by reason of such determination of arms length price in the case of the first mentioned enterprise. While going through each of these methods, it becomes clear that all these methods are not definitive methods for ascertaining transfer prices.

Being a complex subject, more fine-tuning is needed to finally get a definitive benchmark method for calculating the transfer price. As business between countries is likely to only increase in future, transfer-pricing issues would be subject of even more scrutiny not only by government and legal bodies, but also the companies’ respective shareholders. But there is a lot of ground still to be done in this area. Speaking on the sidelines of a budget analysis session organized by Confederation of Indian Industry, Rohan K Phatarphekar, executive director nd national head, global transfer pricing services KPMG India Private Limited said, “The Budget was not bad, there was too much of expectations from the market. What the Budget lacked was clarity, the government failed to lay down a concrete roadmap to bridge the fiscal deficit. " But significant changes were announced in the tax structure like removal of FBT, removal of 10 per cent surcharge on the higher bracket of income tax, commitment to introducing GST. [pic] Difficulties in applying Arm’s Length Principle . Multinational Enterprises groups are dealing in the integrated production of highly specialized goods, in unique intangibles, and in the provision of specialized services. 2. Associated Enterprises may engage in transactions that independent would not undertake, example sale or license of intangibles. 3. Arm’s Length Price may result in an administrative burden for both the tax administrations of evaluating significant numbers and types of cross-border transactions. 4.

Far placed geographical locations and confidentiality etc. may cause difficulty in obtaining comparable data. Transfer Pricing in IT Department Commercial transactions between the different parts of the multinational groups may not be subject to the same market forces shaping relations between the two independent firms. One party transfers to another goods or services, for a price. That price is known as transfer price. This may be arbitrary and dictated, with no relation to cost and added value, diverge from the market forces.

Transfer price is, thus, a price which represents the value of good; or services between independently operating units of an organization. But, the expression transfer pricing generally refers to prices of transactions between associated enterprises which may take place under conditions differing from those taking place between independent enterprises. It refers to the value attached to transfers of goods, services and technology between related entities. It also refers to the value attached to transfers between unrelated parties which are controlled by a common entity.

Example of using Transfer Pricing Suppose a company A purchases goods for 100 rupees and sells it to its associated company B in another country for 200 rupees, who in turn sells in the open market for 400 rupees. Had A sold it direct, it would have made a profit of 300 rupees. But by routing it through B, it restricted it to 100 rupees, permitting B to appropriate the balance. The transaction between A and B is arranged and not governed by market forces. The profit of 200 rupees is, thereby, shifted to the country of B.

The goods is transferred on a price (transfer price) which is arbitrary or dictated (200 hundred rupees), but not on the market price (400 rupees). Thus, the effect of transfer pricing is that the parent company or a specific subsidiary tends to produce insufficient taxable income or excessive loss on a transaction. For instance, profits accruing to the parent can be increased by setting high transfer prices to siphon profits from subsidiaries domiciled in high tax countries, and low transfer prices to move profits to subsidiaries located in low tax jurisdiction.

As an example of this a group which manufactures products in high tax countries may decide to sell them at a low profit to its affiliate sales company based in a tax haven country. That company would in turn sell the product at an arm's length price and the resulting (inflated) profit would be subject to little or no tax in that country. The result is revenue loss and also a drain on foreign exchange reserves Reference to Transfer Pricing Officer. 92CA. (1) Where any person, being the assessee, has entered into an international transaction in any previous year, and the Assessing Officer onsiders it necessary or expedient so to do, he may, with the previous approval of the Commissioner, refer the computation of the arm’s length price in relation to the said international transaction under section 92C to the Transfer Pricing Officer. (2) Where a reference is made under sub-section (1), the Transfer Pricing Officer shall serve a notice on the assessee requiring him to produce or cause to be produced on a date to be specified therein, any evidence on which the assessee may rely in support of the computation made by him of the arm’s length price in relation to the international transaction referred to in sub-section (1). 3) On the date specified in the notice under sub-section (2), or as soon thereafter as may be, after hearing such evidence as the assessee may produce, including any information or documents referred to in sub-section (3) of section 92D and after considering such evidence as the Transfer Pricing Officer may require on any specified points and after taking into account all relevant materials which he has gathered, the Transfer Pricing Officer shall, by order in writing, determine the arm’s length price in relation to the international transaction in accordance with sub-section (3) of section 92C and send a copy of his order to the Assessing Officer and to the assessee. 4a[(3A) Where a reference was made under sub-section (1) before the 1st day of June, 2007 but the order under sub-section (3) has not been made by the Transfer Pricing Officer before the said date, or a reference under sub-section (1) is made on or after the 1st day of June, 2007, an order under sub-section (3) may be made at any time before sixty days prior to the date on which the period of limitation referred to in section 153, or as the case may be, in section 153B for making the order of assessment or reassessment or re computation or fresh assessment, as the case may be, expires. ] 84b[(4) On receipt of the order under sub-section (3), the Assessing Officer hall proceed to compute the total income of the assessee under sub-section (4) of section 92C in conformity with the arm’s length price as so determined by the Transfer Pricing Officer. ] (5) With a view to rectifying any mistake apparent from the record, the Transfer Pricing Officer may amend any order passed by him under sub-section (3), and the provisions of section 154 shall, so far as may be, apply accordingly. (6) Where any amendment is made by the Transfer Pricing Officer under sub-section (5), he shall send a copy of his order to the Assessing Officer who shall thereafter proceed to amend the order of assessment in conformity with such order of the Transfer Pricing Officer. 7) The Transfer Pricing Officer may, for the purposes of determining the arm’s length price under this section, exercise all or any of the powers specified in clauses (a) to (d) of sub-section (1) of section 131 or sub-section (6) of section 133. Undesirable Corporate Practices Related to Transfer Pricing Some of the related party transactions, which are usually resorted to for diversion of funds are detailed below. (a)    Purchase of goods or services from a related party at little or no cost or at inflated prices to the entity. (b)   Payments for services never rendered or at inflated prices. (c)    Sales at below market rates to an unnecessary “middle man” related party, who in turn sells to the ultimate customer at a higher price with the related party (and ultimately its principals) retaining the difference. (d)   Purchases of assets at prices in excess of fair market value. e)    Use of trade names or patent rights at exorbitant rates even after their expiry or at a price much higher than the price, which can not be described as reasonable. (f)     Borrowing or lending on an interest-free basis or at a rate of interest significantly above or below market rates prevailing at the time of the transaction. (g)    Exchanging property for similar property in a non monetary transaction. (h)    Selling real estate at a price that differs significantly from its appraised value. (i)      Accruing interest at above market rates on loans. Associated Enterprise. 92A. (1) For the purposes of this section and sections 92, 92B, 92C, 92D, 92E and 92F, associated enterprise, in relation to another enterprise, means an enterprise a)Which participates, directly or indirectly, or through one or more intermediaries, in the management or control or capital of the other enterprise; or (b)In respect of which one or more persons who participate, directly or indirectly, or through one or more intermediaries, in its management or control or capital, are the same persons who participate, directly or indirectly, or through one or more intermediaries, in the management or control or capital of the other enterprise. (2) 77[For the purposes of sub-section (1), two enterprises shall be deemed to be associated enterprises if, at any time during the previous year,] (a)one enterprise holds, directly or indirectly, shares carrying not less than twenty-six per cent of the voting power in the other enterprise; or b)any person or enterprise holds, directly or indirectly, shares carrying not less than twenty-six per cent of the voting power in each of such enterprises; or (c)a loan advanced by one enterprise to the other enterprise constitutes not less than fifty-one per cent of the book value of the total assets of the other enterprise; or (d)One enterprise guarantees not less than ten per cent of the total borrowings of the other enterprise; or (e)more than half of the board of directors or members of the governing board, or one or more executive directors or executive members of the governing board of one enterprise, are appointed by the other enterprise; or f)more than half of the directors or members of the governing board, or one or more of the executive directors or members of the governing board, of each of the two enterprises are appointed by the same person or persons; or (g)the manufacture or processing of goods or articles or business carried out by one enterprise is wholly dependent on the use of know-how, patents, copyrights, trade-marks, licenses, franchises or any other business or commercial rights of similar nature, or any data, documentation, drawing or specification relating to any patent, invention, model, design, secret formula or process, of which the other enterprise is the owner or in respect of which the other enterprise has exclusive rights; or h)ninety per cent or more of the raw materials and consumables required for the manufacture or processing of goods or articles carried out by one enterprise, are supplied by the other enterprise, or by persons specified by the other enterprise, and the prices and other conditions relating to the supply are influenced by such other enterprise; or (i)the goods or articles manufactured or processed by one enterprise, are sold to the other enterprise or to persons specified by the other enterprise, and the prices and other conditions relating thereto are influenced by such other enterprise; or (j)Where one enterprise is controlled by an individual, the other enterprise is also controlled by such individual or his relative or jointly by such individual and relative of such individual; or k)Where one enterprise is controlled by a Hindu undivided family, the other enterprise is controlled by a member of such Hindu undivided family or by a relative of a member of such Hindu undivided family or jointly by such member and his relative; or Chapter 2 Objectives of the Study Objectives of the Study:- Primary Objectives: 1) To study the acceptability of different methods of Transfer Pricing in the companies. 2) To find out the ways of applying Arm’s Length Method and the results of it. 3) To study the different terms like Associated Enterprises, Transfer pricing officer, International Transaction & Subsidiary company etc. Secondary Objectives 1) To identify various other ways of managing the profit of the company. 2) To analyse different ways of applying extra cash flow. ) To find different ways of Transfer Pricing which are applicable under Income Tax Act 1961. Chapter 3 Company Profile COMPANY PROFILE PARAMOUNT Established in 1993, Paramount Surgimed Ltd. manufactures wide range of Surgical Blades, Scalpels which cover General Surgery and other Surgical Area viz: Gastroentrology, Urology, Orthopedic & General Surgery etc. Paramount Surgimed Ltd. is exporting their products in more than 50 countries. Paramount Surgimed Ltd. is first Company who has been approved by ISI, ISO 9001 & FDA registered company and their products are CE marked. A guiding sense of concern for mankind and a mission to realize richer human life led to the birth of PARAMOUNT SURGIMED LTD.

Paramount has grown with a reputation of specializing in manufacturing of a wide range of single use medical and surgical devices such as Surgical Blades, Disposable Scalpels, Stitch Cutters and Skin Graft Blades. Paramount has its corporate head office in New Delhi, the capital of India & operates its major production activities from Bhiwadi in Rajasthan. This has a floor space of 30000 sq. ft. on 10000 sq. meter. plot and a mere 60 km from the Capital City. The facilities comprise of latest state – of – the – art – manufacturing unit comparable to international standards. Paramount is committed to exceed it’s customer's expectations. All aspects of manufacturing and packaging is done in a clean & controlled environment.

We adhere to the policy of strict quality control without mercy by making use of in - house test laboratory, for competitive quality assurance at all times. Blades are sterilized through Gamma Radiation in New Delhi. We are an ISO 9000: 2000 company and the products are CE marked. Our products are also registered with various health ministries around the world. Vision Statement Today India is at the down of the millennium’s exciting future with the liberalization and the opening up of its economy. The world is taking a look at India, her products, and her enterprises. With a vision of being a global leader in Medical Disposables, Paramount Surgimed Ltd. dedicates itself to the crucial sector. Mission Statement

We at Paramount Surgicals, Inc are committed to design, manufacture and distribute finest spinal implant and instruments. Since its beginning, Paramount Surgical, Inc has stood for one capability above all others – the ability to Innovate. Innovate is a sense of possibility that allows for freedom beyond mere innovation. We strive without reserve for the greatest possible reliability and quality of our products and to be recognized in the market for our dedication, honesty and services. Paramount Surgimed Limited has created this privacy statement in order to demonstrate our firm commitment to privacy. The following discloses the information gathering and dissemination practices for our Corporate Web site: www. paramountblades. com. . R & D Technology Mission

We fully understand the grave implications of technology and are constantly on the move to keeping abreast with rapid technological development towards the quest for excellence in the field of Medical & Surgical disposables. The R & D department not only helps in developing new products and their manufacturing technologies but also in improving existing ones. Quality Commitment Paramount has kept alive quality as a legacy in which quality is not an end but a vehicle for seeking excellence & perfection at all stages. We are committed to exceed our customer's expectations. All aspects of manufacturing and packaging is done in a clean & controlled environment. We adhere to the policy of strict quality control without mercy by making use of in - house test laboratory, for competitive quality assurance at all times.

Blades are sterilized through Gamma Radiation in New Delhi. We are an ISO 9000 : 2000 company and the products are CE marked. Our products are also registered with various health ministries around the world Step in to the Future Encouraged with the continued impressive performance, Paramount has decided to expand & diversify in to the other related areas, targeting the year leading into 21st century. Paramount will build additional new manufacturing facilities equipped with latest technologies in the field of healthier business. The responsibility and obligation to the customer to supply the best products in every way is the power of its efforts.

Like the tip of an iceberg, only a small part of its work is visible. The significant strength however is the use of most progressive and modern technologies, and the untiring efforts of its employees, who continue to strive for more efficient and better solutions. Response by placing repeat orders for years together, Paramount has a sustained and consistent growth. OSIM Delhi based Paramount Surgimed Ltd. has signed a Master Franchisee Agreement with OSIM International Ltd. , over $ 300 million company and Singapore's largest manufacturer of lifestyle products to import and trade OSIM products in India and Nepal through OSIM India, a division of Paramount Surgimed Ltd. Established in 1980, OSIM is the No. brand in lifestyle products in Singapore, Hong Kong, Taiwan, and Malaysia, UK & USA, Australia, Canada and over 22 franchisee all over the world. OSIM produces superior designs focusing and following ergonomic guidelines along with quality features. OSIM India has opened 23 outlets in the country in just one year. These include outlets in Delhi, Gurgaon, Ludhiana, Kolkata Bangalore, Chennai, Mumbai, Hyderabad, Pune and Indore. By the end of this year it plans to expand and set up a total of 25 more outlets. Quality As we offer lifestyle products related to health, quality is the most important factor that, we take special care of. Our products are completely flawless and stand at par even with the international standards.

All our products are checked and tested under strict supervision of experts and doctors, so that they do not cause any adverse health effects. Specially equipped with quality experts who individually examine the products themselves so that our clients can use it in a comfortable way. Fully guaranteed our products have been manufactured with complete care, perfection and precision by world class procedures. Believing in the motto “quality begins with us”, we have earned enormous accolades. Operations 1. Human Resource:- The Company is having a manpower of around 530 employees all over India. To maintain the proper management on this vast manpower, the company uses the Master Software, “Portal Data Management”. The turnover ratio of manpower is around 110 employees in a year.

Process of Recruitment- To do the recruitment firstly the Manpower assessment is done, then approval is taken from the Heads, HOD’s and then permission is taken from COO’s Basically the company tries to fill the gap internally, by posting the existing employee at the new post, personal sources of employees, their relatives and friends and then if necessary it uses the job portals available on-line and scrutinize the resumes available there. Then the company conduct interview (no G. D. is done), firstly with HR personals then with concern HODs. This process ends for the post of a Front line officer. If a higher person is to be recruited then the interview with COO is also conducted. Then the final result is taken regarding that candidate.

Documents to be carried on the date of joining and everything else except the salary (salary is included because many person negotiate other companies on the basis of this LOC) Probationary Period for the new employee remains for 6 months and after that, if he/she (if found suitable), is given permanent employee certificate. Training and Development- Generally the training is provided in the concerning departments only by the employees already working over there. Basically two types of training is provided. i. Product/Technical Training- In this, the training is provided regarding the products of the company and also the work which the new employee is to be done. This includes the hard core training. ii.

Soft skills/Non-technical Training- In this training, the soft skills are taught to the candidate, like the behavior of the employees, working conditions, organizational culture etc. Time to time the employees development programs are also conducted to motivate the employees i. e. to understand their personal problem, solving it out, developing their career path, etc 2. I. T. The company is having one single IT department to control all the data base management and all the networking facilities. This department is in head office. The company uses its own made OSIM Software to keep the data and all of its branches are using the same software, which is downloaded by the head office personals with the SQL information.

The company is also engaged in on line merchandizing, it makes online sales also with the help of its website. It uses OSIM India as the selling website which is fully organized by the Head Office only. 3. Accounts The Company’s Accounts Department is near to Head Office. The Accounts Department is having a workflow of 25 members who are handling the accounts of the different branches of the Company. The Company is using Tally 9 Software along with MS Office to maintain the records of the customers 4. Marketing:- The Company is having a highly powerful Marketing activity which is the biggest strength of the company. The products of Paramount are traded in both domestic and international markets.

Our medical products are being exported to more than 40 Countries across the world like USA, Asia, and South Africa etc. Moreover, OSIM is declared as Asia No. 1 healthy lifestyle brand in consumers’ minds It basically having two types of Sale i. e. a) Corporate- The Company is having almost 35% of its total sales in the Corporates. Its Corporate clients includes ONGC, Japee Hotels, Indian Oil, Hyath Group of Hotels, Apollo Tyres, Apollo Hospitals, Heritage Hospitals, Fortis Hotels etc. The Company is having a big ratio of its sales in Indian Army and other PSU’s b) Retails- The Company’s Retailing is very strong. Almost 65-70% of its sales is based on Retailing. Its Retailing is very wide, which is divided in three modes i.

Showrooms- The Company has opened its own Showrooms in different parts of the country, including Chandigarh, Delhi, Ludhiana, Ahemdabad, Kerla, Hyderabad, and many other places. The Showrooms are exclusively defined, and highly modernized, with all the facilities for the visitors. ii Shop in Shops- At many places the Company is having its shops in different shops. This is a very new concept which provide the firm to save money and also having more attention form the visitors along with standing with other different renowned Brands. iii Road Shows- The company has a mode of selling through Road Shows. Road Shows are very popular in Metro Cities and a large amount of sales of the Company is dependent on that.

The Company is having its all time Road Show in Delhi, Bangalore, Kolkata, Chennai etc. Products iMedic Chair Revolutionary chair designed for precise massage The new OSIM iMedic Chair is the first of its kind to cater to the specific needs of every individual by detecting the precise location of acupressure points along the back. With more than 300 acupressure points in the body, every person’s body shape is as different as the shape of our face. Determining the exact body shape of the use allows a more sensitive massage to be applied effectively to just the right spot, helping to relieve fatigue and neuralgia, promote blood circulation, ease muscle strain and stiffness, leaving you feeling relaxed all over.

Sit back, close your eyes and sink into the luxuriousness of the OSIM iMedic Chair as you relinquish your body to the ultimate massage experience. Detecting Acupressure Points: While seated deeply into the OSIM iMedic Chair with your head resting comfortably on the headrest pad, select any of the 8 comprehensive massage programmes. Before commencement of any programme, the massage rollers automatically glide along the length of your back to detect the acupressure points via 2 infrared sensors. Once detected, you can look forward to a massage experience unlike any other. Shoulder Position Adjustment: You can further personalize the massage programmed by adjusting the position of the rollers at your shoulder area, so you can pinpoint the massage precisely where you want it.

Well-being Programmes: These 3 relaxing programmed are designed to enhance your health by adapting massage treatment to your daily routine. Morning Programme: For those who feel an ongoing tiredness and a lack of energy during the day, giving you the extra perk you need Night-time Programme: Use at the end of the day to fully relax your body and prepare you for a good rest. Useful if you suffer from insomnia. Seat Programme: Massages the hip area using a combination of vibration action and seat message. Useful for relief of constipation discomfort. Luxurious Comfort Versatile Design The OSIM iMedic Chair has been designed with features to raise the level of comfort to unparalleled heights.

Fully Automatic Reclining System: Recline the backrest and/or the footrest independently at the siple touch of the Remote Controller to find the position that suits you best. Adjustable Angle: The backrest can be reclined up to 170 degree for greater comfort. Extendable Footrest: The footrest can be easily extended to cater to the height of the user. Auto-Timer: Whichever programme you chose, it will automatically run for a maximum of 15 minutes, allowing you to relax your mind while the OSIM iMedic Chair relaxes your body. However, you can turn the programme off or switch to a different programme at any point and the timer will reset automatically.

Total Remote Control: A comprehensive Remote Controller with two LCD display screens controls all programmes and functions for an uninterrupted massage session. Anti-bacterial Upholstery Covers: The upholstery covers are specially coated with an anti-bacterial treatment, keeping bacteria like Staphylococcus, Yellow Coliform Bacilli and MRSA at bay. They are completely removable for easy cleaning. Available in white, black, latte and olive. Foldable Backrest and Castors: For easy storage and transportation. Paramount Surgimed Ltd, New Delhi has been chosen as Master Franchise to represent OSIM in India. OSIM India A Division of Paramount Surgimed Ltd shall be promoting a wide range of OSIM products through our exclusive showroom to start with in New Delhi and followed by in other cities.

OSIM International Ltd, Singapore came in to existence in the year 1980 with the aim to provide a healthy lifestyle to the mankind. From a humble start to $287. 4 million company, today OSIM is promoting its products through is Master Franchise in over 20 countries. OSIM INDIA is coming up with a top of the line massage chair in India Millennium Chair OS - 747iv: The Master Of Relaxation. Equipped with a specially designed roller system, which moves in a wavelike motion along your spine to effectively massage muscoes relieve aches and stiffness. Bliss Chair NR-90: Complete Relaxation from Top to toe. Full body massage with a unique reversible footrest, which gives you a choice of resting your legs, or treating your feet and calves to a stimulating massage.

Apart from the above products we have a Reflexologist, i Twin, Foot Reivitalizer 2, Tappie (Handy Massager), Warm Air Turbo, eHuman-logic BPM, Pro Therapist, Massuer Chair, Hair Brush, Ear Scan, Health Sole, Eye Care Massager, Large Gel Pad, Samll Gel Pad, VF scan, e-Body fat Scale, Fever Band, Handy Neb, Ultrasonic Neb, Instant Heat Pad (small), Slim Belt (Aerobics), Slim Belt (Body Shaping), Slim Belt (back support), Slim Belt (Extra Support), Spare Wire, Upholstery for OS777, Music CD for OS777, I. Sense Upholstery for OS757 to add to the big range of products. Chapter 4 Research Methodology RESEARCH METHODOLOGY Methodology is the bone of a project. It has also an important place as regards to cash management system project. It helps us in Collection and analysis of data in preparing the project. My Research is purely a Descriptive Research, which includes understanding and analyzing Transfer Pricing and its different Method. My sources of collection of data must be very much reliable, so secondary data collection method is used for the purpose of the project for the Price Management System.

I have gone very deeply in preparing the project & I devoted my full attention to get the accurate & real data collection. For this purpose I became in close contact with sources of data collection by personally & through Internet. The Methodology contains the following things:- • Methods of Data Collection :- For the project report, methods of data collection has an important role in connection with accuracy & exact information. So, I adopted both the methods primary as well as secondary method of data collection. A) Primary Data : Throughout the preparation of the project report, I was in the contact of CFO & other staff of finance department of Paramount Surgimed Ltd. o get the information in connection with the practical working of transaction between the company & banks. B) Secondary Data: I have also collected the information, figures & data in connection with the preparation of project report from Balance-sheet & annual report of Paramount Surgimed Ltd. I have also collected the information about cash management, services & Latter of Credit provided by the bank to the company. Along with it I have collected information about the topic from the Internet and also form many of my friends and colleagues who have worked over on the similar kind of projects or who are having a good command over the subject.

Sources of Data :- Sources of collection of data for a project report has a very

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