Sap Labs India Private Limited vs Income Tax Officer, Circle 6, Bangalore

HELD: 1.1 While determining the arm’s length price, the tribunal has to follow the guidelines stipulated under Chapter X of the Income Tax Act, 1961, namely, Sections 92, 92A to 92CA, 92D, 92E and 92F of the Act and Rules 10A to 10E of the Rules. Any determination of the arm’s length price under Chapter X de hors the relevant provisions of the guidelines, can be considered as perverse and it may be considered as a substantial question of law as perversity itself can be said to be a substantial question of law. Therefore, there cannot be any absolute proposition of law that in all cases where the tribunal has determined the arm’s length price the same is final and cannot be the subject matter of scrutiny by the High Court in an appeal under Section 260A of the IT Act. When the determination of the arm’s length price is challenged before the High Court, it is always open for the High Court to consider and examine whether the arm’s length price has been determined while taking into consideration the relevant guidelines under the Act and the Rules. Even the High Court can also examine the question of comparability of two companies or selection of filters and examine whether the same is done judiciously and on the basis of the relevant material/evidence on record. The High Court can also examine whether the comparable transactions have been taken into consideration properly or not, i.e., to the extent non-comparable transactions are considered as comparable transactions or not. [Para 7][442C-G]

1.2. In each case, the High Court should examine whether the guidelines laid down in the Act and the Rules are followed while determining the arm’s length price. Therefore, the absolute proposition of law laid down by the Karnataka High Court in the case of Softbrands India (P) Ltd. that in the matter of transfer pricing, determination of the arm’s length price by the tribunal shall be final and cannot be subject matter of scrutiny and the High Court is precluded from examining the correctness of the determination of the arm’s length price by the tribunal in an appeal under Section 260A of the IT Act on the ground that it cannot be said to be raising a substantial question of law cannot be accepted. Within the parameters of Section 260A of the IT Act in an appeal challenging the determination of the arm’s length price, it is always open for the High Court to examine in each case whether while determining the arm’s length price, the guidelines laid down under the Act and the Rules, are followed or not and whether the determination of the arm’s length price and the findings recorded by the tribunal while determining the arm’s length price are perverse or not. [Para 8][442-H; 443-A-C]

1.3. The impugned judgments and orders passed by the High Court dismissing the Revenue’s appeals and even the appeals preferred by the assessees are quashed and set aside and the matters are required to be remitted back to the concerned High Courts to decide and dispose of the respective appeals afresh in light of the observations made and examine in each and every case whether the guidelines laid down under the Act and the Rules, referred are followed while determining the arm’s length price by the tribunal or not and to that extent whether the findings recorded by the tribunal while determining the arm’s length price are perverse or not. [Para 9][443-D-E] PCIT v. Softbrands India (P) Ltd. (2018) 406 ITR 513 (Karnataka) – disapproved.

Vijay Kumar Talwar v. CIT (2011) 1 SCC 673 : [2010]

14 SCR 499; Sir Chunilal V. Mehta and Sons Ltd. v. Century Spinning and Manufacturing Co. Ltd. AIR 1962 SC 1314 : [1962] Suppl. SCR 549; G. L. Sutania and Anr v. SEBI and Ors. (2007) 5 SCC 133 : [2007] 6 SCR 1152 – referred to.