10CA. (1) Where in respect of an international transaction or a specified domestic transaction, the application of the most appropriate method referred to in sub-section (1) of section 92C results in determination of more than one price, then the arm’s length price in respect of such international transaction or specified domestic transaction shall be computed in accordance with the provisions of this rule.
(2) A dataset shall be constructed by placing the prices referred to in sub-rule (1) in an ascending order and the arm’s length price shall be determined on the basis of the dataset so constructed:
Provided that in a case referred to in clause (i) of sub-rule (5) of rule 10B, where the comparable uncontrolled transaction has been identified on the basis of data relating to the current year and the enterprise undertaking the said uncontrolled transaction, [not being the enterprise undertaking the international transaction or the specified domestic transaction referred to in sub-rule (1)], has in either or both of the two financial years immediately preceding the current year undertaken the same or similar comparable uncontrolled transaction then,—
(i) | the most appropriate method used to determine the price of the comparable uncontrolled transaction or transactions undertaken in the aforesaid period and the price in respect of such uncontrolled transactions shall be determined; and | |
(ii) | the weighted average of the prices, computed in accordance with the manner provided in sub-rule (3), of the comparable uncontrolled transactions undertaken in the current year and in the aforesaid period preceding it shall be included in the dataset instead of the price referred to in sub-rule (1): | |
Provided further that in a case referred to in clause (ii) of sub-rule (5) of rule 10B, where the comparable uncontrolled transaction has been identified on the basis of the data relating to the financial year immediately preceding the current year and the enterprise undertaking the said uncontrolled transaction, [not being the enterprise undertaking the international transaction or the specified domestic transaction referred to in sub-rule (1)], has in the financial year immediately preceding the said financial year undertaken the same or similar comparable uncontrolled transaction then,— |
(i) | the price in respect of such uncontrolled transaction shall be determined by applying the most appropriate method in a similar manner as it was applied to determine the price of the comparable uncontrolled transaction undertaken in the financial year immediately preceding the current year; and | |
(ii) | the weighted average of the prices, computed in accordance with the manner provided in sub-rule (3), of the comparable uncontrolled transactions undertaken in the aforesaid period of two years shall be included in the dataset instead of the price referred to in sub-rule (1) : | |
Provided also that where the use of data relating to the current year in terms of the proviso to sub-rule (5) of rule 10B establishes that,— |
(i) | the enterprise has not undertaken same or similar uncontrolled transaction during the current year; or | |
(ii) | the uncontrolled transaction undertaken by an enterprise in the current year is not a comparable uncontrolled transaction, |
then, irrespective of the fact that such an enterprise had undertaken comparable uncontrolled transaction in the financial year immediately preceding the current year or the financial year immediately preceding such financial year, the price of comparable uncontrolled transaction or the weighted average of the prices of the uncontrolled transactions, as the case may be, undertaken by such enterprise shall not be included in the dataset. |
(3) Where an enterprise has undertaken comparable uncontrolled transactions in more than one financial year, then for the purposes of sub-rule (2) the weighted average of the prices of such transactions shall be computed in the following manner, namely:—
(i) | where the prices have been determined using the method referred to in clause (b) of sub-rule (1) of rule 10B, the weighted average of the prices shall be computed with weights being assigned to the quantum of sales which has been considered for arriving at the respective prices; | |
(ii) | where the prices have been determined using the method referred to in clause (c) of sub-rule (1) of rule 10B, the weighted average of the prices shall be computed with weights being assigned to the quantum of costs which has been considered for arriving at the respective prices; | |
(iii) | where the prices have been determined using the method referred to in clause (e) of sub- rule (1) of rule 10B, the weighted average of the prices shall be computed with weights being assigned to the quantum of costs incurred or sales effected or assets employed or to be employed, or as the case may be, any other base which has been considered for arriving at the respective prices. |
(4) Where the most appropriate method applied is a method other than the method referred to in clause (d) or clause (f) of sub-section (1) of section 92C and the dataset constructed in accordance with sub-rule (2) consists of six or more entries, an arm’s length range beginning from the thirty-fifth percentile of the dataset and ending on the sixty-fifth percentile of the dataset shall be constructed and the arm’s length price shall be computed in accordance with sub-rule (5) and sub-rule (6).
(5) If the price at which the international transaction or the specified domestic transaction has actually been undertaken is within the range referred to in sub-rule (4), then, the price at which such international transaction or the specified domestic transaction has actually been undertaken shall be deemed to be the arm’s length price.
(6) If the price at which the international transaction or the specified domestic transaction has actually been undertaken is outside the arm’s length range referred to in sub-rule (4), the arm’s length price shall be taken to be the median of the dataset.
(7) In a case where the provisions of sub-rule (4) are not applicable, the arm’s length price shall be the arithmetical mean of all the values included in the dataset:
Provided that, if the variation between the arm’s length price so determined and price at which the international transaction or specified domestic transaction has actually been undertaken does not exceed such percentage not exceeding three per cent of the latter, as may be notified by the Central Government in the Official Gazette in this behalf, the price at which the international transaction or specified domestic transaction has actually been undertaken shall be deemed to be the arm’s length price.
(8) For the purposes of this rule,—
(a) | “the thirty-fifth percentile” of a dataset, having values arranged in an ascending order, shall be the lowest value in the dataset such that at least thirty five per cent of the values included in the dataset are equal to or less than such value: | |
Provided that, if the number of values that are equal to or less than the aforesaid value is a whole number, then the thirty-fifth percentile shall be the arithmetic mean of such value and the value immediately succeeding it in the dataset; | ||
(b) | “the sixty-fifth percentile” of a dataset, having values arranged in an ascending order, shall be the lowest value in the dataset such that at least sixty five per cent of the values included in the dataset are equal to or less than such value: | |
Provided that, if the number of values that are equal to or less than the aforesaid value is a whole number, then the sixty-fifth percentile shall be the arithmetic mean of such value and the value immediately succeeding it in the dataset; | ||
(c) | “the median” of the dataset, having values arranged in an ascending order, shall be the lowest value in the dataset such that at least fifty per cent of the values included in the dataset are equal to or less than such value: |
Provided that, if the number of values that are equal to or less than the aforesaid value is a whole number, then the median shall be the arithmetic mean of such value and the value immediately succeeding it in the dataset.
Illustration 1.—The data for the current year of the comparable uncontrolled transactions or the entities undertaking such transactions is available at the time of furnishing return of income by the assessee and based on the same, seven enterprises have been identified to have undertaken the comparable uncontrolled transaction in the current year. All the identified comparable enterprises have also undertaken comparable uncontrolled transactions in a period of two years preceding the current year. The Profit level Indicator (PLI) used in applying the most appropriate method is operating profit as compared to operating cost (OP/OC). The weighted average shall be based upon the weight of OC as computed below :
Sl. No. | Name | Year 1 | Year 2 | Year 3 [Current Year] | Aggregation of OC and OP | Weighted Average |
1 | 2 | 3 | 4 | 5 | 6 | 7 |
1 | A | OC = 100
OP = 12 |
OC = 150
OP = 10 |
OC = 225
OP = 35 |
Total OC = 475
Total OP = 57 |
OP/OC = 12% |
2 | B | OC = 80
OP = 10 |
OC = 125
OP = 5 |
OC = 100
OP = 10 |
Total OC = 305
Total OP = 25 |
OP/OC = 8.2% |
3 | C | OC = 250
OP = 22 |
OC = 230
OP = 26 |
OC = 250
OP = 18 |
Total OC = 730
Total OP = 66 |
OP/OC = 9% |
4 | D | OC = 180
OP = (-)9 |
OC = 220
OP = 22 |
OC = 150
OP = 20 |
Total OC = 550
Total OP = 33 |
OP/OC = 6% |
5 | E | OC = 140
OP = 21 |
OC = 100
OP = (-)8 |
OC = 125
OP = (-)5 |
Total OC = 365
Total OP = 8 |
OP/OC = 2.2% |
6 | F | OC = 160
OP = 21 |
OC = 120
OP = 14 |
OC = 140
OP = 15 |
Total OC = 420
Total OP = 50 |
OP/OC = 11.9% |
7 | G | OC = 150
OP = 21 |
OC = 130
OP = 12 |
OC = 155
OP = 13 |
Total OC = 435
Total OP = 46 |
OP/OC = 10.57% |
From the above, the dataset will be constructed as follows :
SI. No. | 1 | 2 | 3 | 4 | 5 | 6 | 7 |
Values | 2.2% | 6% | 8.2% | 9% | 10.57% | 11.9% | 12% |
For construction of the arm’s length range the data place of thirty-fifth and sixty-fifth percentile shall be computed in the following manner, namely:
Total no. of data points in dataset *(35/100)
Total no. of data points in dataset *(65/100)
Thus, the data place of the thirty-fifth percentile = 7*0.35=2.45.
Since this is not a whole number, the next higher data place, i.e. the value at the third place would have at least thirty five per cent of the values below it. The thirty-fifth percentile is therefore value at the third place, i.e. 8.2%.
The data place of the sixty-fifth percentile is = 7*0.65=4.55.
Since this is not a whole number, the next higher data place, i.e. the value at the fifth place would have at least sixty five per cent of the values below it. The sixty-fifth percentile is therefore value at fifth place, i.e. 10.57%.
The arm’s length range will be beginning at 8.2% and ending at 10.57%.
Therefore, if the transaction price of the international transaction or the specified domestic transaction has OP/OC percentage which is equal to or more than 8.2% and less than or equal to 10.57%, it is within the range. The transaction price in such cases will be deemed to be the arm’s length price and no adjustment shall be required. However, if the transaction price is outside the arm’s length range, say 6.2%, then for the purpose of determining the arm’s length price the median of the dataset shall be first determined in the following manner:
The data place of median is calculated by first computing the total number of data point in the dataset * (50/100). In this case it is 7*0.5=3.5.
Since this is not a whole number, the next higher data place, i.e. the value at the fourth place would have at least fifty per cent of the values below it (median).
The median is the value at fourth place, i.e., 9%. Therefore, the arm’s length price shall be considered as 9% and adjustment shall accordingly be made.
Illustration 2.—The data of the current year is available in respect of enterprises A, C, E, F and G at the time of furnishing the return of income by the assessee and the data of the financial year preceding the current year has been used to identify comparable uncontrolled transactions undertaken by entrprises B and D. Further, if the enterprises have also undertaken comparable uncontrolled transactions in earlier years as detailed in the table, the weighted average and dataset shall be computed as below:
Sl. No. | Name | Year 1 | Year 2 | Year 3 [Current Year] | Aggregation of OC and OP | Weighted Average |
1 | 2 | 3 | 4 | 5 | 6 | 7 |
1 | A | OC = 100
OP = 12 |
OC = 150
OP = 10 |
OC = 225
OP = 35 |
Total OC = 475
Total OP = 57 |
OP/OC = 12% |
2 | B | OC = 80
OP = 10 |
OC = 125
OP = 5 |
Total OC = 205
Total OP = 15 |
OP/OC = 7.31% | |
3 | C | OC = 250
OP = 22 |
OC = 230
OP = 26 |
OC = 250
OP = 18 |
Total OC = 730
Total OP = 66 |
OP/OC = 9% |
4 | D | OC = 220
OP = 22 |
Total OC = 220
Total OP = 22 |
OP/OC = 10% | ||
5 | E | OC = 100
OP = (-)5 |
Total OC = 100
Total OP = (-)5 |
OP/OC = (-)5% | ||
6 | F | OC = 160
OP = 21 |
OC = 120
OP = 14 |
OC = 140
OP = 15 |
Total OC = 420
Total OP = 50 |
OP/OC = 11.9% |
7 | G | OC = 150
OP = 21 |
OC = 130
OP = 12 |
OC = 155
OP = 13 |
Total OC = 435
Total OP = 46 |
OP/OC = 10.57% |
From the above, the dataset will be constructed as follows :
SI. No. | 1 | 2 | 3 | 4 | 5 | 6 | 7 |
Values | (-)5% | 7.31% | 9% | 10% | 10.57% | 11.9% | 12% |
If during the course of assessment proceedings, the data of the current year is available and the use of such data indicates that B has failed to pass any qualitative or quantitative filter or for any other reason the transaction undertaken is not a comparable uncontrolled transaction, then, B shall not be considered for inclusion in the dataset. Further, if the data available at this stage indicates a new comparable uncontrolled transaction undertaken by enterprise H, then, it shall be included. The weighted average and dataset shall be recomputed as under :
Sl. No. | Name | Year 1 | Year 2 | Year 3 [Current Year] | Aggregation of OC and OP | Weighted Average |
1 | 2 | 3 | 4 | 5 | 6 | 7 |
1 | A | OC = 100
OP = 12 |
OC = 150
OP = 10 |
OC = 225
OP = 35 |
Total OC = 475
Total OP = 57 |
OP/OC = 12% |
2 | C | OC = 250
OP = 22 |
OC = 230
OP = 26 |
OC = 250
OP = 18 |
Total OC = 730
Total OP = 66 |
OP/OC = 9% |
3 | D | OC = 220
OP = 22 |
OC = 150
OP = 20 |
Total OC = 370
Total OP = 42 |
OP/OC = 11.35% | |
4 | E | OC = 100
OP = (-)5 |
Total OC = 100
Total OP = (-)5 |
OP/OC = (-)5% | ||
5 | F | OC = 160
OP = 21 |
OC = 120
OP = 14 |
OC = 140
OP = 15 |
Total OC = 420
Total OP = 50 |
OP/OC = 11.9% |
6 | G | OC = 150
OP = 21 |
OC = 130
OP = 12 |
OC = 155
OP = 13 |
Total OC = 435
Total OP = 46 |
OP/OC = 10.57% |
7 | H | OC = 150
OP = 12 |
OC = 80
OP = 10 |
Total OC = 230
Total OP = 22 |
OP/OC = 9.56% |
From the above, the dataset will be constructed as follows :
SI. No. | 1 | 2 | 3 | 4 | 5 | 6 | 7 |
Values | (-)5% | 9% | 9.56% | 10.57% | 11.35% | 11.9% | 12% |
Illustration 3.— In a given case the dataset of 20 prices arranged in ascending order is as under :
Sl. No. | Profits (in Rs. Thousand) |
1 | 2 |
1 | 42.00 |
2 | 43.00 |
3 | 44.00 |
4 | 44.50 |
5 | 45.00 |
6 | 45.25 |
7 | 47.00 |
8 | 48.00 |
9 | 48.15 |
10 | 48.35 |
11 | 48.45 |
12 | 48.48 |
13 | 48.50 |
14 | 49.00 |
15 | 49.10 |
16 | 49.35 |
17 | 49.50 |
18 | 49.75 |
19 | 50.00 |
20 | 50.15 |
Applying the formula given in the Illustration 1, the data place of the thirty-fifth and sixty-fifty percentile is determined as follows:
Thirty-fifth percentile place = 20* (35/100) = 7.
Sixty-fifth percentile place = 20* (65/100) = 13.
Since the thirty-fifth percentile place is a whole number, it shall be the average of the prices at the seventh and next higher, i.e.; eighth place. This is (47+48)/2 = Rs.47,500.
Similarly, the sixty-fifth percentile will be average of thirteenth and fourteenth place prices. This is (48.5+49)/2=Rs.48,750
The median of the range (the fiftieth percentile place) = 20*(50/100)=10
Since the fiftieth percentile place is a whole number, it shall be the average of the prices at the tenth and next higher, i.e.; eleventh place. This is (48.35+48.45)/2= Rs.48,400.
Thus, the arm’s length range in this case shall be from Rs.47,500 to Rs.48,750.
Consequently, any transaction price which is equal to or more than Rs.47,500 but less than or equal to Rs.48,750 shall be considered to be within the arm’s length range.
Reference: www.incometaxindia.gov.in