Associated Enterprise: Scope of Section 92A (2) of Income Tax Act finally settled
Posted on March 24,2020

In a global economy, where multinational enterprises (MNEs) play a prominent role, the Governments strive to ensure profits of MNEs are not shifted out artificially of their jurisdiction. On the other hand, taxpayers aim to limit its risks of economic double taxation that may result from a dispute between two countries on the determination of the arm’s length remuneration/price for their cross-border transactions with associated enterprises. 

Indian Transfer Pricing provisions stipulating arm's length principle are applicable when two or more Associated Enterprises ('AEs') enter into an international transaction.

The term "associated enterprise" is defined in section 92A under the provisions of Income-tax Act 1961 ( "the Act"). When transfer pricing regulations were first introduced in India in 2001, an elaborate definition was adopted, which consisted of two parts - the first lays down the general principle while the second refers to certain specific situations that would create the relationship of associated enterprise. 

However, the wording of sub-section (2) of Section 92A has raised clamour as to whether the second part limits or expands the scope defined in the first part? 

Let us see how the section is worded.

Section 92A(1) reads as follows:

"For the purposes of this section and sections 92, 92B, 92C, 92D, 92E and 92F, 'associated enterprise', in relation to another enterprise, means an enterprise -

  (a

  

  which participates, directly or indirectly, or through one or more intermediaries, in the management or control or capital of the other enterprise; or 

  

  (b

  

  in respect of which one or more persons who participate, directly or indirectly, or through one or more intermediaries, in its management or control or capital, are the same persons who participate, directly or indirectly, or through one or more intermediaries, in the management or control or capital of the other enterprise." 

  

 For the sake of brevity, the relevant extract of Section 92A(2) is reproduced hereunder:

"(2) For the purposes of sub-section (1), two enterprises shall be deemed to be associated enterprises if, at any time during the previous year,-

  (a

  

  one enterprise holds, directly or indirectly, shares carrying not less than twenty-six per cent of the voting power in each of such enterprise; or

  

  (b

  

  …………………………….;

  

  (c

  

  ..………………………….;"

  

 There are in all thirteen situations enumerated in the sub-section.

The expression 'associated enterprises' refers to an enterprises "which participates, directly or indirectly, or through one or more intermediaries, in the management or control or capital of the other enterprise". 

 

In other words, the test is that if any of the three elements viz (i) management (ii) control or (iii) capital has a bearing on another enterprise, the other enterprise may constitute AE of the first-mentioned enterprise.

Succinctly stated, the language of sub-section is extensive, and even slight or negligible participation in any of the three elements mentioned above may make the other entity as an associated enterprise.

The legislature had not desired such an expansive scope. In this light, sub-section (2) must be read. This view gets further fortified by the fact that while the transfer pricing provisions were brought on the statute with effect from 1st April 2001, there was an amendment in Section 92A(2) in the very next year which specifically provided that “for the purpose of sub section (1)” , two enterprises shall be deemed to be associated enterprises if, at any time during the previous year satisfy the conditions laid down in Section 92A(2). It is thus pointed out that by way of this amendment, the scope of Section 92A(1) was specifically restricted. Further, the CBDT issued a circular No. 8 dated 27th August 2008), whereby it was explained two enterprises shall be deemed to be associated enterprises if, at any time during the previous year st 2002 which, in paragraph 50.3, states that “the existing provisions contained in section 92A of the Income Tax Act, provide as to when the two enterprises will be deemed to be associated enterprises” and then adds that “the Finance Act, 2002, has amended subsection (2) of section 92A to clarify that where any of the criterion specified in subsection (2) is fulfilled, two enterprises shall be deemed to be associated enterprises”.

It engenders the question of whether both the sub-sections are interconnected, as the spinal segments do, or they have the scope of independent operation?

The issue came first time before the Mumbai bench of Income Tax Appellate Tribunal in the case of Diageo India Pvt Ltd Vs DCIT [(2011) 47 SOT 252]. The Tribunal, in this case, held that section 92A(1)(a) and (b) is, what can be termed as, basic rule. In plain terms, the basic rule is that when one enterprise participates in the control or management or capital of the other enterprise (directly or indirectly or through one or more intermediaries) or when persons participating (directly or indirectly or through one or more intermediaries) in control or management or capital of two or more enterprises are the same, the enterprises are said to be associated enterprise. Section 92A(2) gives practical illustrations of participation in management, control, or capital. The Tribunal was of the view that sub-section (1) and (2) are independent of one another, and the satisfaction of one would be sufficient to make one enterprise AE of the other. The thrust of the rulings is that the relationship of AE should be examined based on sub-section (1). If the situation is covered by any of the thirteen clauses of sub-section (2) then the relationship would be affirmed. These two probes should be carried out independently.

The interpretation in Diageo decision (supra) created issues as to how to identify thresholds for participation in management, control or capital in subsection (1) and it led to uncertainty. It was said to be not following the intent of the amendment introduced in 2002.

Recently, the Diageo decision (supra) has been rendered per incurium as it ignored the amendment introduced in 2002 in the case of Kaybee Pvt Ltd v. ITO (ITA No 2165/Mum/15) by the Mumbai Bench of ITAT. In this case, the taxpayer vehemently argued that "in order to hold the two enterprises as AEs, the condition prescribed under sub-section (2) of section 92A are to be satisfied. Further, that "an enterprise can be an AE of the other as per the terms of section 92A(1) only when any of the conditions prescribed under clause (a) to (m) of sub-section (2) of section 92A are also satisfied. To support this, the taxpayer copiously referred to the Memorandum of Explanation of Finance Bill, 2002, which reads as below:

'The existing provisions contained in section 92A of the Income-tax Act to provide as to when two enterprises shall be deemed to be associated enterprises.

It is proposed to amend sub-section (2) of the said section to clarify that the mere fact of participation by one enterprise in the management or control or capital of the other enterprise, or the participation of one or more persons in the management or control or capital of both the enterprises shall not make them associated enterprises, unless the criteria specified in sub-section (2) are fulfilled.'

Hence, this interpretation has to be subject to the provisions of sub-section (2) of section 92A, meaning that the management, control or capital should be to the extent as laid down in this sub-section.

It was held that that Section 92A(1) cannot be applied on a standalone basis, and has to be essentially considered in conjunction of Section 92A(2) – only when it satisfies at least one of the conditions set out therein, it is clear that the relationship between the assessee company.

While arriving on this conclusion, the Tribunal also relied on the decision of Gujarat High Court in the case of PCIT v Veer Gems [(2017) 83 taxmann.com 271] against which the hon’ble Supreme Court dismissed SLP in PCIT v Veer Gems [(2018) 95 taxmann.com 16]. Thus, the issue is now conclusively settled that both the sub-sections are not independent of each other instead, the relationship mentioned in sub-section (1) shall be further refined as per sub-section (2).

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