CBDT notifies secondary adjustment rule in transfer pricing

Source: Financial Express, June 19, 2017

New Delhi: The Income Tax Department has come out with rules for operationalising the provisions of secondary adjustment in books of accounts to reflect actual allocation of profits between a company and its arm. The Finance Act 2017 has inserted Section 92CE in the I-T Act to give effect to the secondary adjustment norms, which are based on OECD’s transfer pricing guidelines for multinational enterprises and tax administrations. It is also provided that where the excess money available with the associated enterprise on primary adjustment is not repatriated to India within the prescribed time, it shall be deemed to be an advance made by the assessee to such associated enterprise.

The tax department has now notified the time-limit for repatriation of excess money and the rate of interest to be applied for computing the income in case of failure to repatriate the excess money within the prescribed time-limit. “The time-limit of 90 days for repatriation of excess money shall begin only when the primary adjustments exceeding Rs 1 crore made in respect of Assessment Year 2017-18 or later, attains finality. “Where the transfer pricing order is appealed against by the taxpayer, the time-limit for repatriation shall commence only after the appeal is finalised by the appellate authority,” the tax department said in a statement.

Separate annual rates of interest have been provided for international transactions denominated in Indian currency and in foreign currency. Price Waterhouse & Co Leader Transfer Pricing Kunj Vaidya said the notification clarifies that secondary adjustments will apply to primary adjustments which are greater than Rs 1 crore and relate to/made in respect of fiscal 2016-17 and onwards. “This comes as a much needed relief from the potential retrospectivity impact that this provision had earlier set forth,” Vaidya said.

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