Amendment in Safe Harbour Rules - A step towards sanity

Introduction

i. Due to the increasing complexity of transaction between enterprises of the same group and manipulation of prices by them in order to avoid the burden of taxation in relation to international transactions, the Transfer pricing regulations by the Finance Act 2001 were established.

ii. Transfer Pricing regulations are applicable in case of all international transaction and specified domestic transactions as mentioned under section 92B and 92BA of Income Tax Act, 1961 respectively.

iii. The aim is to ensure that income arising from transactions between Associated Enterprises(AE) (as defined under section 92A of Income Tax ACT,1961) shall be computed having regard to Arm’s length price(ALP).

iv. Section 92C of the Income Tax Act, 1961 provides for various methods according to which an enterprise carrying out international transactions ought to determine the ALP having regard to nature of transaction class of transaction or class of associated persons or functions performed by such persons and other relevant factors.

v. The introduction of section 92CB for the determination of ALP under section 92C and 92B will be subject to Safe Harbour Rules on account of rising number of transfer pricing audits and prolonged litigation.

The Concept of Safe Harbour under Income Tax Act, 1961

• The term Safe Harbour is defined under section 92CB of the Income Tax Act, 1961 as circumstances under which the authorities shall accept transfer pricing declared by the assessee. It can also be construed as a conduct which will be deemed not to violate the rules of the Act.
•  Safe Harbour Rules were inserted by a notification issued by Central Board of Direct Taxes (CBDT) on 18th September, 2013. This notification inserted Rule 10TA to 10TG in the Income Tax Act, 1961.
• Safe Harbour rules should not be construed as ALP, but in nature of presumptive income.
• It is applicable in case of international transactions as well as specified domestic transactions.
• In order to avail the benefit of Safe Harbour in relation to International Transactions, the provisions relating to the procedure laid down under rule and 10TE of Income Tax Rules, 1962 ought to be followed by the assessee.
• However Safe Harbour Rules shall not be applicable in relation to eligible international transactions entered into with associated enterprise and located in any country or territory notified under section 94A or in a no tax or low tax country.
• These rules are beneficial for certain taxpayers as they can follow a set of simple rules and calculate the transfer price which shall be accepted by the Income Tax Authorities.
•  These rules are not only beneficial to the tax payers but also to the tax authorities as it will cut down majority of compliance procedures.

The Safe Harbour Rules provide for certain Profit Margins in relation to operating expenses which a taxpayer is required to maintain for certain categories of international transactions that will be taken into consideration as ALP by the Income Tax Authorities. These are amended by a Notification No 46/2017 dated 07-06-2017 issued by the Ministry of Finance, Central Board of Direct Taxes (CBDT).

The revised amendments are applicable for three assessment years i.e. Assessment year 2017-18 to 2018-20. However, an additional benefit is extended to the eligible assessee under which for the assessment year 2017-2018 they can choose from the earlier rules or the amended rules whichever is more beneficial to them.

In order to understand the scope of amendments brought about in Safe Harbour Rules, it is necessary to analyze the below mentioned definitions:

Who is an eligible assessee?

The eligible assessee has been defined in Rule 10TB. The eligible assesses are as under:

• Is engaged in providing software development services or
• Information technology enabled services or knowledge process outsourcing services, with in significant risk, to a non-resident associated enterprises; or
• Has made any intra-group loan; or
• Has provided a corporate guarantee; or
• Is engaged in providing contract research and development services wholly or partly relating to software development, with in significant risk, to a foreign principal ; or
• Is engaged in providing contract research and development services wholly or partly relating to generic pharmaceuticals drugs, with in significant risk, to a foreign principal; or
• Is engaged in manufacture and export of core or non-core auto components and where ninety per cent or more of total turnover during relevant previous year is in nature of original equipment manufacturer sales.
• There are two conditions in relation to Section 10TB which need to be fulfilled in order to derive benefit of these Safe Harbor Rules.
• The assessee who must applies for Safe Harbour Rules must apply in the prescribed format as laid down in the Income Tax Act, 1961.
• Only an eligible assessee is entitled to avail the benefits of the Safe Harbour Rules.

Which are the eligible transactions?

As per Rule 10TC following class of international transactions between the eligible assessee (as mentioned above) and its associate enterprise were defined as “eligible international transaction” for the purpose of Safe Harbour Rules,

• Provision of software development services;
• Provision of information technology enabled services;
• Provision of Knowledge process outsourcing services;
• Advance of intra group loan;
• Provision of corporate guarantee,
• where the amount guaranteed –does not exceed one hundred crore rupees exceeds one hundred crore rupees, and the credit rating of the associated enterprises, done by an agency registered with the Securities and Exchange Board of India, is of adequate to highest safety ;
• provision of contract research and development services wholly or partly relating to software development;
• provision of contract research and development services wholly or partly relating to generic pharmaceuticals drugs;
• manufacture and export of core auto components;
• manufacture and export of non-core components; or
• receipt of low value adding intra grouping services from one or more members of its group.

The main highlights of the amendment are as follows:

Moderation of Safe Harbour Rates

Introduction of Threshold of INR200 crore for IT, ITES, KPO AND R&D on service providers for IT & Generic Pharmaceutical drugs:

The effect of this amendment for the current year has been neutralized as the assesses have an option to choose from the old rules or the new rules.

Introduction of Safe Harbour for low value intra group services:

The scope of the rule has been extended to cover within its ambit the receipt of low value adding intra group services subject to certain requirements like certification from an accountant regarding cost pooling methods, exclusion of share holder cost and duplicate cost from cost pool and reasonableness of allocation keys. These rules are in consonance with the guidelines laid down by Organization of Economic Co-operation and Development (OECD) under Base Erosion and Profit Shifting (BEPS) Action plans 8-10. However there are certain digressions in the definition of low value adding Intra Group Services. An extensive definition of low value adding intra group services has been added to the Income Tax Rule, 1962. There is a list of 10 services which has been excluded from the applicability of the definition including It, ITES, KPO services.

Safe Harbour Rates for KPO services:

The Safe Harbour Rates for KPO services have been revamped and made dependent upon the application of Employees cost to operating to operating cost ratio. The term Employees cost has been briefly defined under Safe Harbour Rules.

Introduction of Safe Harbour Rates for loans advanced in foreign currency:

The revised Safe Harbour Rules are based on the LIBOR rates as well as the credit rating of the AE granted by CRISIL (Credit Rating Information Services India Limited.).

a. The scope of the definitions of operating expense has been widened to include cost relating to ESOP provided by AE, reimbursement of expenses incurred by AE on behalf of the tax payer ,amount recovered by AE which relate to normal operations of the taxpayer subject to such reimbursements and recoveries being at cost.

b. In addition to the above mentioned amendments there are certain other changes like inclusion of definition of accountant, relevant previous year, clarifying the scope of Employee cost etc.

Operating Profit Margins (in relation to operating expense) are to be maintained by the eligible assessee from the eligible international transactions. Operating profit margins in relation to operating expense are defined under Rule 10TA of Income Tax Rules, 1962 as the ratio of operating profit, being the operating revenue in excess of operating expense, to the operating expense expressed in terms of percentage. These are tabulated as under:-

Applicability

The revised Safe Harbour Rules are only applicable for the Assessment year 2017-18 and two immediately following assessment years i.e. Assessment year 2018-19 and 2019-20. For the Assessment year 2017-18, the tax payers have an option to choose from old rules or new rules which ever are more beneficial.

Our take on the Amendment

We believe that the revised Safe Harbour Rules are focused at bringing in more certainty and reducing litigations in relation to Transfer Pricing. These Safe Harbour Rules are in consonance with guidelines issued by Organization for Economic Co-operation and Development under the Base Erosion and Profit Sharing (BEPS) Action plan 8 to 10. Base Erosion and Profit Sharing (BEPS) Action plan 8 to 10 relates to essential principles of transfer pricing namely how transfer pricing needs to be applied for various transactions or issues relating to intangibles and allocation of risks. However, the definition of low value adding intra group services given under Income tax rules, 1962 differs from that given under the BEPS plan. These new rules are applicable to transactions limited to 200cr which depicts the intention of government to ensure that the benefits of these rules are restricted to small and medium sized enterprises. The quantum of operating margins has been limited upto 24% which were as high as 30% under the previous regime. The benefit of these rules is extended to currency outbound loans and low value-adding intra-group services which is a major step towards expanding the ambit of these rules. Overall, it is welcome amendment and should motivate more entities to go for application of Safe Harbour rules.