Transfer pricing norms: More power to FinMin

Budget 2011-12 has proposed to give more teeth to the finance ministry in matters relating to pricing of goods and services in cross-border transactions between a parent company and its subsidiary.

The additional power with regards to ‘transfer pricing’ (as it is commonly known) is expected to help the government scrutinise transactions with companies in low-tax jurisdictions and protect its revenues.

It has proposed amendments to Section 92C of the Income Tax Act to allow a transfer pricing officer (TPO) assess international transactions which, in its existing form, may be considered outside his jurisdiction.

To determine the Arm’s Length Price (ALP), at which two unrelated parties would do a transaction, the TPO may also get additional powers to summon or call people to enquire or investigate into a matter. At present, these powers are available to officers assessing a transfer pricing case.

The Income Tax Act says that a TPO can determine ALP in case of an international transaction referred to him by the assessing officer. As per the Finance Bill, the jurisdiction of the TPO should be extended to transactions which are noticed by him subsequently in the course of proceedings. To enable the TPO carry out an on-the-spot enquiry and verification, he may be allowed to exercise power of survey.

“These measures will make transfer pricing audits more aggressive and focused by allowing the tax department to get in more international transactions under the tax net. This is in line with international practices,” said Shanto Ghosh, principal economist, Deloitte India.

The Budget has also proposed to change the fixed margin of five per cent for computing ALP. At present, if the variation between the actual price of the transaction and the ALP does not exceed five per cent of the actual price then no adjustment is made by the tax department and the actual price is treated as ALP.

The finance ministry has argued that a fixed margin of five per cent across all segments of business activity and range of international transactions has out-lived its utility. The government will not notify a new variation, which will come into effect from April 1, 2012.

The new range could be higher or lower based on suggestions from TPOs, said a finance ministry official.

In some relief to corporate assesses subject to transfer pricing, the finance ministry has proposed to extend the due date for filing of returns to 30 November from 30 September. This will help the tax department get comparable data on international transactions of companies.