Length Price
Meaning of relevant terms
6.1 The various methods of computation of arm’s length price are prescribed in rule 10B. For this purpose, certain terms are defined in rule 10A as under:
Rule 10A - Meaning of expressions used in computation of arm’s length price.
For the purposes of this rule and rules 10B to 10E,-
(a) ‘uncontrolled transaction’ means a transaction between enterprises other than associated enterprises, whether resident or non-resident;
(b) ‘property’ includes goods, articles or things, and intangible property;
(c) ‘service’ includes financial services;
(d) ‘transaction’ includes a number of closely linked transactions.
6.2 Rule 10B stipulates the methods of determination of arm’s length price. The relevant portion of the rule dealing with each of the methods prescribed is extracted here below and suitable explanations thereof are given along with illustrations encompassing several adjustments for enabling better understanding of the principles involved and the type of working called for.
Comparable Uncontrolled Price Method (CUP Method)
6.3 Rule 10B(1)(a) - Comparable uncontrolled price method, by which,-
(i) the price charged or paid for property transferred or services provided in a comparable uncontrolled transaction, or a number of such transactions, is identified;
(ii) such price is adjusted to account for differences, if any, between the international transaction and the comparable uncontrolled transactions or between the enterprises entering into such transactions, which could materially affect the price in the open market;
(iii) the adjusted price arrived at under sub-clause (ii) is taken to be an arm’s length price in respect of the property transferred or services provided in the international transaction.
6.4 The comparable uncontrolled price method is considered as one of the traditional methods of determining the arm’s length price. Two other traditional methods are the Resale Price Method and the Cost Plus Method.
6.5 Typical transactions in respect of which the comparable uncontrolled price method may be adopted are:
(a) Transfer of goods;
(b) Provision of services;
(c) Intangibles;
(d) Interest on loans.
6.6 The OECD in its Transfer Pricing Guidelines observes as under:
“The CUP method is a particularly reliable method where an independent enterprise sells the same product as is sold between two associated enterprises.”
“The CUP method compares the price charged for property or services transferred in a controlled transaction to the price charged for property or services transferred in a comparable uncontrolled transaction in comparable circumstances. If there is any difference between the two prices, this may indicate that the conditions of the commercial and financial relations of the associated enterprises are not arm's length, and that the price in the uncontrolled transaction may need to be substituted for the price in the controlled transaction.”
6.7 The steps involved in the application of this method are:
(i) Identify the price charged or paid in comparable uncontrolled transactions;
Methods of Computation of Arm’s Length Price (ii) The above price should be adjusted for transaction level the
differences on the basis of functions performed, assets used and risks taken (FAR) analysis and enterprise level differences if any;
(iii) The adjusted price is the arm’s length price;
6.8 The application of the comparable uncontrolled price method can be understood with the following example:
AE1 Ltd., is an Indian company. The shareholding pattern of AE1 Ltd., is as follows:
Shareholder’s name Status % holding
AE2 Ltd. Foreign Company 30
AE3 Ltd. Indian Company 30
Financial Institutions Indian Company 10
Public 30
AE1 Ltd., is a manufacturer of compact disc (CD) writers and its customers, inter alia, include AE2 Ltd, and M Ltd.
AE1 Ltd., during the year has supplied 10,000 nos. of the product to AE2 Ltd.
at a price of ` 2,000 per unit and 200 nos. of the same product to AE3 Ltd., at a price of ` 2,750 per unit. AE1 Ltd., has sold 100 units of the same product to M Ltd. at ` 3,000 per unit.
Analysis of the international transaction with comparable uncontrolled transaction Warranty No warranty Six months
warranty
Cost of warranty is ` 250 per unit
Factors to be considered while determining ALP:
(a) In the CUP method, one has to start from the price charged in the case of the comparable uncontrolled transaction.
(b) In this illustration one has to start with the price charged by AE1 Ltd., to M Ltd.
(c) The price charged to AE3 Ltd., cannot be considered as AE3 Ltd., is itself an associated enterprise of AE1 Ltd.
(d) The price charged to M Ltd., will have to be increased by the value of credit which is at the rate at 1.25% p.m. (i.e. 15% p.a.). If the similar credit were offered to M Ltd., the price charged to M Ltd. would have been higher, after factoring this cost.
(e) The price charged to M Ltd., will have to be reduced by the following;
(i) ` 550 representing the freight and insurance –This is for the reason that if the price to M Ltd., had been on FOB basis, it would have been less by ` 550.
(ii) ` 250 per unit representing the estimated cost of warranty execution for a period of six months on the basis of a technical analysis and past experience - This is for the reason that if the warranty was not given, the price to M Ltd.
would have been lower, without factoring this cost.
(iii) ` 10 representing the cost of each CD – This is for the reason that if similar gift had been offered to M Ltd., the effective price to M Ltd., would have been less.
(iv) ` 20 representing a quantity discount - This is for the reason that if similar discount had been offered to M Ltd., the effective price to M Ltd., would have been less.
Computation of arm’s length price under the comparable uncontrolled price method
The following points are to be noticed:
(i) All adjustments in the course of applying this method are to be made to the price charged in the uncontrolled transaction. The presence or absence of any specific features in the uncontrolled transaction as
Methods of Computation of Arm’s Length Price features are to be evaluated in monetory terms. This is a subjective process based on objective facts.
(ii) Only differences that would materially affect the price in the open market are required to be adjusted. Two points may be noted. Firstly, materiality would have to be judged in the light of various circumstances. If there are numerous adjustments, which are individually not material but collectively material, the necessary adjustments are required to be made. Secondly, the term ‘open market’, though not defined, would mean a transaction between a knowledgeable and a willing purchaser and a knowledgeable and willing seller where neither of them is influenced or compelled to act in a particular manner.