Inputs Needed -- Under Section 92A(2)

This query is : Resolved

Querist : Anonymous

Querist : Anonymous (Querist)

12 July 2010 We have been approached by an Indian company to provide advice on whether the Indian TP code is attracted for its proposed transactions with an unrelated overseas company. The facts of the case are as follows:

1.The Indian company is engaged in undertaking a host of business activities in the travel industry.
2.The Indian company plans to commence a new business activity for which it proposes to enter into an agreement with the overseas company whereby it will license the necessary know-how / brand name owned by the overseas company. The Indian company will also receive certain management consultancy services from the overseas company for the proposed business activity.
3.The Indian company would have an exclusive right to use the know-how / brand name and to avail the management consultancy services in India.
4.The proposed business activity will constitute about 5% of the total business of the Indian company.

Could this arrangement between the Indian company and the overseas company be covered under Section 92A(2)(g) that says:

the manufacture or processing of goods or articles or business carried out by one enterprise is wholly dependent on the use of know-how, patents, copyrights, trade-marks, licences, franchises or any other business or commercial rights of similar nature, or any data, documentation, drawing or specification relating to any patent, invention, model, design, secret formula or process, of which the other enterprise is the owner or in respect of which the other enterprise has exclusive rights

Should "business carried out by one enterprise being wholly dependent" be inferred to read entire business of the enterprise or could it also imply one business segment of the enterprise?

If someone has analysed this issue before, request you to kindly drop a mail to me and I will get in touch with you.

Thanks and best regards,
Rahul

Ankit Talsania

Ankit Talsania (Expert)
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14 July 2010 92A(2) is applicable to Associate Enterprise only. As you have mentioned that it is unrelated party than Transfer Pricing provisions in that case will not be made applicable.

However, provisions of S.195 and 9 are required to be taken into consideration in the given situation.

for more discussion you can send me an email on ankittalsania@gmail.com