Tax authorities worldwide are investigating transfer pricing arrangements with increased vigour. In India too one witnesses the multifold increase in transfer pricing disputes and adjustments to the tune of INR 46,465 crore . One such issue, which has been the subject matter of dispute and very little guidance, is discussed in this article, i.e. on capacity utilization adjustments.
Indian transfer pricing regulations are largely aligned to international norms and methodologies, even while it has certain peculiarities. The central theme of the provisions is the arm’s length principle, which postulates charging of an arm’s length price for all transactions between associated enterprises.
The arm’s length price is to be determined using one of the methods prescribed under the Income-tax Act, 1961 (‘the Act’), while having regard to the nature or class of transaction or function performed. The Transactional Net Margin Method (‘TNMM’) is a prescribed method for determining the arm’s length price in some cases. TNMM enjoins the adjustment owing to capacity under-utilization differences. Since sizes of entities and level of activities differ, so does the available comparables for the purpose of transfer pricing adjustments. The rationale to eliminate capacity under-utilization when engaging TNMM is that the arm’s length price will be a proper comparable as the differences in the levels of absorption of indirect fixed costs would affect the net profit margin and not the gross margin / gross mark-up on cost.
The OECD Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations, July 2010, prescribe the making of adjustments to eliminate differences in capacity utilization or idle capacity adjustments. Also, Rule 10B(1)(e)(iii) of the Income-tax Rules, 1962 (‘the Rules’) stipulates that an adjustment to the net profit margin can be made for “capacity under-utilization”.
Capacity under-utilization by enterprises is a factor affecting net profit margin because lower capacity utilization results in higher per unit costs, which, in turn, results in lower profits at a transactional or unit level. There is no debate on the need for adjustments, however the issue is as to the reasonable accuracy in the mechanism for such adjustments; so long as a reasonable adjustment mechanism can be employed, objections to the adjustment won’t hold. In this context, it is useful to recall the observations of the Hon’ble Delhi High Court in Sony Ericsson Mobile Communication India Pvt. Ltd. [March 2015]: “It must be stated that transfer pricing is not an exact science but a method of legitimate quantification which requires exercise of judgment on the part of the administration and the taxpayer. It is method and formula based and therefore is rational and scientific”. At present there is no authoritative guidance relating to capacity utilization adjustments but the decision of the Delhi Bench of the Income Tax Appellate Tribunal’s (‘the Tribunal’) in the case of Claas India Private Limited [ITA No. 1783/Del/2011], has put forth useful observations and guidelines on capacity utilization adjustment.
The Tribunal noted that the taxpayer had claimed idle capacity adjustment by reducing its own operating costs. The taxpayer, engaged in the manufacture, sale and export of farm equipments, claimed to have worked at a capacity of 29%. The Transfer Pricing Officer (‘TPO’) concluded 54% as being the average capacity utilization of the comparables chosen by him. Accordingly the TPO applied the factor of 29/54 (29% being the taxpayer’s capacity utilization and 54% being the average capacity utilization of the comparables chosen by the TPO) for reducing the operating costs actually incurred by the taxpayer. The judgment of the Tribunal states that in case there are some differences between the comparables and the taxpayer, then the effect of such differences should be ironed out by making suitable economic adjustment to the operating profit margin of comparables. The Tribunal held that the correct course of action provided under the law is to adjust the operating costs of the comparable and their resultant operating profit.
Since neither the Act nor the Rules provide the mechanism for computing capacity utilization adjustment, but in this judgment the Tribunal has laid down the following important principles:
• It is essential to ascertain the percentage of capacity utilization by the taxpayer and the comparables when applying the TNMM.
• The difference in the percentage of capacity utilization of the taxpayer vis-à-vis comparables should be given effect to in the operating profit of comparables by adjusting their respective operating costs.
The Tribunal explained that operating costs can be either fixed, variable or semi-variable:
• Semi-variable costs need to be split into fixed and variable part.
• The variable costs and the variable portion of the semi-variable costs remain unaffected due to any under or overutilization of capacity.
• The fixed operating costs and the fixed part of the semi-variable costs are scaled up or down by considering the percentage of capacity utilization by the taxpayer and such comparable.
To illustrate, the Tribunal employed the following example:
Comparable Company Name ABC Limited
Fixed Cost INR 100
Capacity Utilization 50%
The Tribunal explained that the taxpayer having capacity utilization of 25% incurs full fixed costs with 25% of the utilization of its capacity, vis-a-vis ABC Limited which incurred full fixed costs at 50% of its capacity utilization. At unit level, this reflects that the taxpayer has incurred relatively more fixed costs, whilst ABC Limited has incurred lower costs.
To improve the quality of comparability, there arises a need to eliminate the effect of this difference in capacity utilization. This can be done by proportionately scaling up the fixed costs incurred by ABC Limited so as to make it fully comparable with the taxpayer. Hence the need for increasing the fixed costs of ABC Limited to INR 200 [INR 100 x (50/25)] as against the actually incurred fixed costs by it at INR 100. When computing the operating profit of ABC Limited by substituting the fixed cost at INR 200 instead of the actual fixed cost of INR 100, it would mean that the fixed costs incurred by the taxpayer and ABC Limited are at the same capacity utilization.
The Tribunal as regard to capacity utilization re-emphasized the need for maintaining credible and accurate information for transfer pricing purposes. The decision is welcome addressing the concerns of industry and professionals alike and provides valuable guidance to both the Revenue and taxpayers when making capacity utilization adjustments whilst using TNMM methodology.
DISCLAIMER: This article has been authored by Ranjeet Mahtani, who is an Associate Partner and Darshi Shah, who is an Associate Manager at Economic Laws Practice (ELP), Advocates & Solicitors. The information provided in the article is intended for informational purposes only and does not constitute legal opinion or advice. Readers are requested to seek formal legal advice prior to acting upon any of the information provided herein.