Transfer pricing adjustment made in respect of sourcing commission

This case concerns a transfer pricing adjustment made by the tax authorities regarding sourcing commission paid by Nike India Private Limited. Nike India claimed a commission of 7% for sourcing materials, benchmarking it against comparable companies. However, the Transfer Pricing Officer (TPO) determined the arm's length price (ALP) for this commission to be nil, resulting in a significant adjustment. The Dispute Resolution Panel (DRP) upheld this decision. The assessee appealed, citing a similar issue in a previous assessment year where the matter was sent back to the TPO for a fresh review.

IN THE INCOME TAX APPELLATE TRIBUNAL
“A’’BENCH: BANGALORE

BEFORE SHRI GEORGE GEORGE K., JUDICIAL
MEMBERAND
SHRI B.R. BASKARAN, ACCOUNTANT MEMBER

IT(TP)A No.2809/Bang/2017
 AssessmentYear:2013-14

Nike India Private Limited
Ground & 1st Floor
Olympia Building
No.66/1, Bagmane Tech Park
CV Raman Nagar
Bangalore 560 093
PAN NO :AABCN9612K

Vs. 

ACIT, Circle 5(1)(1)
Bengaluru
APPELLANT RESPONDENT

Appellant by : Shri K.R. Vasudevan, A.R.
Respondent by : Ms. Neera Malhotra, D.R.

Date of Hearing : 21.04.2021
Date of Pronouncement : 30.06.2021

O R D E R

PERB.R. BASKARAN, ACCOUNTANT MEMBER:

The assessee has filed this appeal challenging the order dated 28.12.2016 passed by the A.O. for assessment year 2013-14 u/s 143(3) r.w.s. 144 C of the Act in pursuance to the directions given by Ld. Dispute Resolution Panel (DRP).

2. The assessee company is engaged in the business of wholesale trading of footwear, apparel and sports equipment in India of NIKE Brand. The assessee is a wholly owned subsidiary of  NIKE Holding B.V. Netherlands, which in turn is held by M/s. NIKE Inc., USA.

3. The first issue urged by the assessee relates to transfer pricing adjustment made in respect of sourcing commission. The assessee had claimed Rs.14.06 crores as payment of commission for sourcing of materials. The assessee paid commission of 7% on the value of products sourced. The assessee bench marked the same under CUP method and in this regard, it had selected 12 companies which had paid commission ranging from 5% to 12%. Accordingly, the assessee claimed that the payment of commission is at arm’s length. The TPO however, determined the ALP of commission payment as Nil and accordingly made transfer adjustment of entire claim of Rs.14.06 crores. Ld DRP also confirmed the same.

3.1 The Ld A.R submitted that an identical issue was examined by the coordinate bench in the assessee’s case in IT(TP)A No.3321/Bang/2018 relating to assessment year 2014-15 and the coordinate bench, vide its order dated 14.10.2020, has restored the issue to the file of the TPO for examining it afresh.

3.2 We heard Ld. D.R. on this issue and perused the record. We notice that an identical issue has been examined in the assessee’s own case by the coordinate bench in A.Y. 2014-15 and the matter has been restored to the file of the AO/TPO for examining it afresh. The relevant observations made by the coordinate bench in 2014-15 are extracted below. 

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