11 January 2015

Most TP Audit Report by CAs unreliable with pathetic professional work

Most TP Audit Report by CAs unreliable with pathetic professional work

Wrigley India Pvt Ltd vs. ACIT (ITAT Delhi), I.T.A. Nos. 5648, 5649 and 5650/Del/12, Date of pronouncing the order : December 31, 2014.
It seems CAs are under attack from all parts of the world for good or not so good reasons. Recently CAG in its report Criticised CAs for alleged Mistakes in Tax Audit Report and signing of Tax Audit Reports  more than the prescribed limit.
ITAT Mumbai has also sounded warning on falling standards of CA profession in the case of Vijay V Meghani vs. DCIT. 
In One more  blow Finance Ministry has already Proposed to amend the definition of the word Accountant under the Direct Tax law and to include Cost Accountant,  Company Secretary etc. in the definition.  This will enable other professionals also  to Conduct Tax Audit and other Certification under the Income Tax which is till now the sole domain of Chartered Accountants.
In a new blow to CA Professionals ITAT Delhi has held in the case of Wrigley India Pvt Ltd vs. ACIT has drawn the following conclusion from Transfer pricing Study Reports prepared by CAs and studied by them over a period of time:-
  1. These TP reports as also certifications by the chartered accounts inspire no confidence.
  2. Nothing can justify  pathetic level of professional work done by chartered accountants.
  3. Chartered Accountants also responsible for frivolous litigation.
  4. No purpose served by TP Reports of  chartered accountant  when reports do not even point   glaring infirmities in taxpayers approach vis-a-vis the transfer regulation.
  5.  in an alarming number cases, these audit reports, rather than painting a true and fair picture of the relevant facts, tend to epitomize the art of constant hedging and manoeuvring by the professionals so as they stay within the confines of permissible professional conduct and are yet able to sidestep the inconvenient realities.


Relevant Para of the Judgment is as follows :-
Having held so, we must also point out that the transfer pricing reports with respect to the impugned determination of ALP leave a lot to be desired. Just because the action of the authorities below, in adopting cost plus method in the above manner, is legally unsustainable, the ALP determination by the assessee cannot be taken as correct. These TP reports as also certifications by the chartered accounts inspire no confidence and, quite to the contrary, raise doubts about efficacy of the built in checks and balances in transfer pricing regulations. It is somewhat fashionable to criticize the revenue authorities for their lack of objectivity or even inefficiency but what in the world can justify such a pathetic level of professional work relied upon by even the large corporate entities. If the tax judicial system is clogged by frivolous litigation today and if the tax finality still takes decades to reach, these saviours of taxpayers are as much to be blamed for this situation as anybody else. No purpose can be served in reporting by a chartered accountant when suchreports do not even point out glaring infirmities in taxpayer's approach vis-à-vis the transfer regulation, in a comparison of budgeted profits margin with actual profit margins realized by the comparables which is stated to be ascertainment of ALP on the basis of the TNMM. It appears that in an alarming number cases, these audit reports, rather than painting a true and fair picture of the relevant facts, tend to epitomize the art of constant hedging and manoeuvring by the professionals so as they stay within the confines of permissible professional conduct and are yet able to sidestep the inconvenient realities. Of course, it will be much worse a situation if they are actually so naïve as to be oblivious of simple provisions of law, of their onerous responsibilities or of the legitimate public expectations. It is not to belittle the brilliant work being done by many a professionals but it is just to point out the dilemma of those who explore the possibilities of relying upon such audit reports and certifications, and also the inertia of those who can do something to salvage this situation and, to thus avoid an inevitable systemic rejection of the ritualistic certifications. We are particularly pained today as the financial period before us is mostly even more than a decade old and yet since the TP reports and certifications before us are, in our considered view, are so much devoid of credibility that, instead of deciding the things one way or the other, we have no choice except to remit the matter to the file of the TPO for fresh ascertainment of ALP on the basis of residuary method, i.e. TNMM. (Para 24)
(Article is Compiled by CA Sandeep Kanoi)

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