Trade Receivables: Transfer Pricing Perspective
CA Gaurav Garg
Chairman, NIRC of ICAI [2023-24] I Transfer Pricing I NR Taxation I Income Tax I Chartered Accountant I Speaker
India's total exports in 2023-24 amounted to USD 778.2 billion. Assuming 35% of these exports were to group companies or associated enterprises, the value would be approximately USD 272.37 billion (around ?22,87,908 crores). Furthermore, if one-third of these exports remain outstanding at year-end, the outstanding trade receivables balance would be approximately ?762,636 crores. This balance would appear as the closing amount recoverable from associated enterprises in the balance sheets of taxpayers subject to transfer pricing regulations and balance must have been squared off during the year. In this article, I have evaluated these trade receivables between associated enterprises from transfer pricing perspective.
Key Transfer Pricing Questions
The following questions arise from a transfer pricing perspective:
Q1: Do Trade Receivables Constitute an International Transaction?
The Finance Act 2012 introduced an explanation to Section 92B of the Income Tax Act, 1961, specifically including "receivables" within the ambit of international transactions. The explanation clarified that:
Explanation.—For the removal of doubts, it is hereby clarified that—
"1.?????? the expression "international transaction"?shall include—
(c) capital financing, including any type of long-term or short-term borrowing, lending or guarantee, purchase or sale of marketable securities or any type of advance, payments or deferred payment or receivable or any other debt arising during the course of business;"
Following this amendment, Transfer Pricing Officers (TPOs) in India generally adopted the stance that trade receivables from associated enterprises outstanding for more than 30 to 60 days constituted international transactions. Consequently, they proposed the addition of imputed interest in most cases where trade receivables exceeded the specified day thresholds.
However, in PCIT v. Kusum Healthcare Pvt. Ltd [ITA 765/2016], the Delhi High Court held that not all trade receivables automatically qualify as international transactions. The Court emphasized that:
"10. … The inclusion in the Explanation to Section 92B of the Act of the expression ‘receivables’ does not mean that de hors the context every item of ‘receivables’ appearing in the accounts of an entity, which may have dealings with foreign AEs (associated enterprises) would automatically be characterised as an international transaction. There may be a delay in collection of monies for supplies made, even beyond the agreed limit, due to a variety of factors which will have to be investigated on a case to case basis. Importantly, the impact this would have on the working capital of the Assessee will have to be studied. In other words, there has to be a proper inquiry by the TPO (transfer pricing officer) by analysing the statistics over a period of time to discern a pattern which would indicate that vis-à-vis the receivables for the supplies made to an AE, the arrangement reflects an international transaction intended to benefit the AE in some way.
?11. The Court finds that the entire focus of the AO (assessing officer) was on just one AY (assessment year) and the figure of receivables in relation to that AY can hardly reflect a pattern that would justify a TPO concluding that the figure of receivables beyond 180 days constitutes an international transaction by itself…”
The key principles derived from the above judgement includes:
In Nokia Solutions and Networks India Pvt. Ltd. v. ACIT [ITA No.1447/Del/2022], the Delhi Income Tax Appellate Tribunal (ITAT) reinforced these principles, noting that:
(1) Factors responsible for the delay have to be investigated on case to case basis
(2) Proper inquiry/examination has to be conducted by the TPO by analyzing the statistics over a period of time to discern a pattern which would indicate that viz-a-viz the receivables, an arrangement which reflects international transactions intended to benefit the Associated Enterprises.
(3) Whether the assessee has already factored the impact of outstanding receivables on the working capital adjustment.
Similarly, in Avenue Asia Advisors Ltd. v. DCIT [ITA 350/2016], the Delhi High Court followed the principle established in PCIT v. Kusum Healthcare Pvt. Ltd., providing further legal support for taxpayers in transfer pricing audits or assessments, where documented reasons exist for payment delays. One can find favor for this judgment in other orders of High Courts and rulings by ITATs as well.
领英推荐
In cases where independent enterprises are allowed some standard credit period (e.g., 30-60 days) by the taxpayer, courts and tribunals generally do not classify receivables from associated enterprises as international transactions until that threshold period has passed. Where no internal comparables exist, industry norms can guide the determination of a reasonable credit period with regard to trade receivables from associated enterprises.
Q2: What Should Be the Arm’s Length Rate of Interest?
In CIT v. Cotton Naturals (I) Pvt. Ltd. [ITA No.233/2014], the Delhi High Court ruled that:
“39… We have no hesitation in holding that the interest rate should be the market determined interest rate applicable to the currency concerned in which the loan has to be repaid. Interest rates should not be computed on the basis of interest payable on the currency or legal tender of the place or the country of residence of either party…”
Subsequently, most ITAT rulings have accepted the London Interbank Offered Rate (LIBOR) plus 200 to 250 basis points as the benchmark interest rate for US Dollar dominated trade receivables. It is to be noted that the Secured Overnight Financing Rate (SOFR) replaced the LIBOR as the benchmark interest rate for dollar-denominated loans and derivatives in June 2023. Thus, depending upon the currency in which invoice is raised on the associated enterprises, a respective benchmark rate can be adopted. Further, 'basis points' over and above benchmark rate is indeed based on facts and risk profile of transaction. However, in Clinasia Labs Private Limited v. ITO [ITA TP No. 202/Hyd/2021], the Hyderabad ITAT upheld the short-term SBI interest rate as the appropriate benchmark:
31. We have consistently held that the interest on delayed outstanding trade receivables is an international transaction and after holding so, we have benchmarked the international transactions at 6% SBI rate.
Wherein, internal comparables are available i.e. taxpayer is charging interest from independent third parties on outstanding receivable, in those cases, internal interest rate should be considered as the arm’s length interest rate.
Q3: Does Working Capital Adjustment Account for Outstanding Receivable Balances?
For understanding working capital adjustment, please refer my earlier article on the same Working Capital Adjustment in Transfer Pricing: An Overview
Working capital adjustments typically consider year-end trade receivable balances. In PCIT v. Kusum Healthcare Pvt. Ltd., the Delhi High Court ruled that:
11. …… With the Assessee having already factored in the impact of the receivables on the working capital and thereby on its pricing/profitability vis-à-vis that of its comparables, any further adjustment only on the basis of the outstanding receivables would have distorted the picture and re-characterised the transaction. This was clearly impermissible in law as explained by this Court in CIT v. EKL Appliances Ltd. (2012) 345 ITR 241 (Delhi).
However, trade receivables that are squared off during the year are not included in the working capital adjustment. Therefore, interest needs to be imputed only on those receivables that qualify as international transactions and are squared off during the financial year. This position has been upheld in several ITAT rulings, including M/s InMobi Technology Services Pvt. Ltd. [IT(TP)A Nos. 303 & 839/Bang/2022]:
3.4) However, we do not deny that during the relevant Financial Year whatever receivable and payable that gets captured in the working capital of the assessee needs to be considered. We place reliance on the decision of Hon’ble Delhi Tribunal in case of Orange Business Services India Solutions Pvt. Ltd. vs. DCIT in ITA No. 6570/Del/2016 vide order dated 15.02.2018 which is referred in para 17.5 of the impugned order. For the invoices raised during the year, and received beyond the stipulated period of agreement which does not get captured in the working capital adjustment, are the ones on which the interest are to be imputed. This specific observations has been given by this Tribunal in paras 17.7 and 17.8 of the impugned order.
Conclusion
While trade receivables from associated enterprises may constitute international transactions, this determination is fact-specific and requires thorough analysis. Proper documentation, industry comparables, and the application of appropriate arm’s length interest rates can significantly mitigate potential risks during transfer pricing audits.
Disclaimer: This article is intended solely for informational and educational purposes. It does not constitute professional advice or a legal opinion. Readers are encouraged to seek specific advice from qualified professionals before making any decisions based on the content herein.
#transferpricing #gauravgarg #tradereceivables #sgpm #incometax #highcourt #itat