Section 92CD

Section 92CD — the law in short

What the courts have decided on section 92CD, in one screen. Read this first; open an entry when you need the facts, the reasoning and the source.

• PCIT (IT)-2 Mumbai v Gemological Institute of America Inc High CourtHelps taxpayerNo later treatment found
  An APA between your Indian company and the CBDT fixes the royalty. The officer says the second proviso to s.92C(4) still stops the foreign parent, who did not sign the APA, from being taxed on the reduced figure. Does it?
  No, on this Bench's reasoning. Where an APA has been entered into between the Indian associated enterprise and the CBDT, that agreement governs the determination of the arm's length price for every year it covers, and the price falls to be determined solely on the basis of the APA. The second proviso to s.92C(4) is confined to the case where the Assessing Officer determines the arm's length price under s.92C(3); it does not reach a variation made pursuant to an APA.
• Deloitte Consulting India Pvt Ltd v Assessment Unit, NFAC High CourtHelps taxpayerNo later treatment found
  Your APA year has been reopened and the officer has himself re-examined whether you complied with the APA. Can he do that without a compliance audit by the Transfer Pricing Officer?
  No. Rule 10P places the compliance audit of an APA with the Transfer Pricing Officer having jurisdiction over the assessee, for each year covered by the agreement. The assessment unit had no jurisdiction to examine APA compliance on its own or to make a reassessment on that footing, and the addition of Rs 106,47,00,730 it made on that basis was beyond jurisdiction. The reopening failed independently on the s.151 sanction and because the notice was issued by the jurisdictional officer rather than the faceless assessing officer.
• PCIT-2 v EYGBS (India) Pvt Ltd High CourtHelps taxpayer
  Your client offered a transfer pricing adjustment itself because its APA required it. The officer says s.92C(4) bars the s.10AA exemption on that extra income. Is he right?
  No. Where the assessee computes the arm's length price itself pursuant to an APA entered into with the CBDT, none of the conditions in s.92C(3) is attracted, and s.92C(4) therefore never comes into operation at all. The bar in s.92C(4) is aimed at income by which the Assessing Officer enhances the declared total income, not at figures the assessee has itself declared in conformity with its APA. The Revenue's appeals were dismissed.
• Optum Global Solutions India Pvt Ltd v PCIT High CourtHelps taxpayerNo later treatment found
  You signed an APA and filed a modified return under s.92CD. The Commissioner has now issued a s.263 notice on the old assessment order. Can he?
  Not on this reasoning. Once a modified return is filed under the APA it has to be treated as a return filed under s.139, and the earlier return and earlier assessment order lose their efficacy for all practical purposes; a fresh assessment order is what has to be passed. Allowing the s.263 notice on the superseded order to run would make the APA and the modified return inconsequential, and nothing stops the Assessing Officer from taking the very same points while re-scrutinising the modified return. Both writ petitions were allowed and the show cause notices set aside.
• Sophos Technologies Pvt Ltd v DCIT ITATHelps taxpayerNo later treatment found
  Your APA produced extra income for a year whose advance tax dates passed long ago, and you paid s.234B and s.234C interest on it in the modified return. Can you get it back?
  Yes, before this Bench. The Tribunal directed the jurisdictional Assessing Officer to delete the additional s.234B and s.234C interest levied on the income added by the APA and to refund it, and allowed the appeal. It gave that direction in one sentence, as following the precedents placed before it; it did not set out reasoning of its own on the interest question.
• Dell International Services India Pvt Ltd v DCIT ITATHelps taxpayerNo later treatment found
  You offered extra income to give effect to a MAP resolution. The officer says the proviso denying a Chapter III deduction on enhanced income applies. Does it?
  No, on this Bench's view. The proviso applies only to a transfer pricing adjustment made by the Assessing Officer. It does not reach income enhanced under a mutual agreement procedure resolution, which is one of several distinct modes by which an arm's length price can come to be determined, and where the assessee actually invoices its associated enterprise and brings the foreign exchange in.
• Dar Al Handasah Consultants (Shair & Partners) India Pvt Ltd v DCIT ITATHelps taxpayerNo later treatment found
  I signed an APA with rollback and filed a modified return under s.92CD offering additional income. The officer says the proviso to s.92C(4) bars any Chapter III deduction on that extra income. Is he right?
  He is not. The proviso to s.92C(4) bars a s.10A deduction on income by which the total income is ENHANCED by a transfer pricing addition made by the authorities; income the assessee itself offers in a modified return under the APA is not such an addition. Section 92CD(2) then supplies the positive answer: save as otherwise provided in that section, all other provisions of the Act apply as if the modified return were a return under s.139, so any deduction otherwise available applies to the income offered in the modified return.
• CBDT Circular No. 10/2015 — APA rollback CBDT Circulars & InstructionsCuts both waysNo later treatment found
  I want the four rollback years with my APA. Can I pick only the years that help me, and what will knock rollback out before I start?
  You cannot pick and choose: the applicant has to either apply for all the four years or not apply at all, subject only to the transaction not existing in a year or the rollback conditions failing in a year. Rollback is not available for a year in which the return was filed under s.139(4), nor where the Tribunal has finally disposed of the appeal on the arm's length price of that transaction, and it can never reduce the total income or increase the loss declared in the return.
• s.92CC(4) — the five-year APA term and the year outside it CBDT Circulars & InstructionsCuts both ways
  My advance pricing agreement covers five years. What about the year just outside it - can the agreed margin be held against me, or held to my benefit, for that year?
  Section 92CC(4) caps the agreement at such period not exceeding five consecutive previous years as may be specified in it, and s.92CC(3) gives the agreement its force only "in respect of which the advance pricing agreement has been entered into". Sub-section (9A) extends that backwards, but only so far: an agreement may, subject to prescribed conditions, determine the arm's length price or the attributable income for any period not exceeding four previous years preceding the first of the years covered by sub-section (4), and rule 10F(ha) calls those the rollback years. A year outside the five plus four is outside the agreement, and the Pune Bench has held in Tetra Pak India that the window works against the department too: the TPO may not benchmark an uncovered year against the margin agreed in the APA.
• s.92CC(7) to (9) — APA declared void ab initio CBDT Circulars & InstructionsHelps department
  The Board says my advance pricing agreement was obtained by misrepresentation. What can it actually do, and what happens to the years the agreement covered?
  Section 92CC(7) allows the Board, with the approval of the Central Government, to declare an advance pricing agreement void ab initio by an order, on one ground and one ground only — that the agreement was obtained by the person by fraud or misrepresentation of facts. Section 92CC(8) then applies the Act to him as if the agreement had never been entered into, and takes the whole stretch between the date of the agreement and the date of the s.92CC(7) order out of every period of limitation in the Act, with a proviso lifting whatever is left to sixty days. Rule 10R(6) requires the order declaring the agreement void to be in writing and to give reasons, including reasons for not accepting the assessee's submissions.

Listed strongest first: Supreme Court, then High Court, then Tribunal, then CBDT. Nothing here has yet been read in full by a chartered accountant — open an entry to see where it came from.