Advance Pricing Agreement (APA)
To bring about certainty and uniformity with regard to determination of arm’s length price of the international transaction, the Finance Act, 2012 had inserted sections 92CC and 92CD in the Income Tax Act 1961 introducing the provisions of Advance Pricing Agreement (APA). The Ministry of Finance has notified an “Advance Pricing Agreement Scheme” (Rules 1OF to 10T of Income Tax Rules, 1962) vide notification No.36/2012 [F.No.133/ 5/2012- SO (TPL)] SO (TPL) 2005 (E), dated 30-8-2012.
An APA is an agreement between the Central Board of Direct Taxes and any person, which determines, in advance, the arm’s length price or specifies the manner of the determination of arm’s length price (or both), in relation to an international transaction. Hence, once APA has been entered into with respect to an international transaction, the arm’s length price with respect to that international transaction, for the period specified in the APA, will be determined only in accordance with the APA. The APA process is voluntary and will supplement appeal and other disputes resolution measures provided under the Double Taxation Avoidance Agreement (DTAA) for resolving transfer pricing disputes.
The Transfer Pricing provisions were introduced in India in 2001 which provided for determination of arm’s length price in cases of international transactions between associated enterprises. In order to provide tax certainty and unanimity in approach in international transactions between associated enterprises, the Finance Act, 2012 has inserted sections 92CC and 92CD in the Income Tax Act 1961 (in short `the Act’) introducing the provisions of Advance Pricing Agreement (APA). The APA process is voluntary and will supplement appeal and other Double Taxation Avoidance Agreement (DTAA or in short ‘Treaty’) mechanism for resolving transfer pricing dispute. The legislation stipulates that Central Board of Direct Taxes (in short ‘the Board’) can enter into an agreement with any person, with the approval of Central Government, determining the arm’s length price (ALP) or specifying the manner for determination of the ALP in relation to an international transaction to be entered into by that person. The Board has prescribed an “Advance Pricing Agreement Scheme” (Rules 1OF to 10T of Income Tax Rules, 1962) in this regard vide notification No. 36/2012 dated 30.08.2012.
WHAT IS AN APA?
An APA is an agreement between the Board and the person(taxpayer), which determines, in advance, the ALP or specifies the manner of the determination of ALP (or both), in relation to an international transaction. Hence, once an APA has been entered into with respect to an international transaction, the ALP with respect to that international transaction, for the period specified in the APA, will be determined only in accordance with the APA. The APA once entered into shall be binding on the person as well as the Commissioner of income tax (and his subordinate income tax authorities) having jurisdiction over such person and such transaction. The term of APA can be a maximum of 5 years. There is no minimum period. However, looking into the time, money and efforts that are expected to be spent before entering into APA, it is likely that the application for APA would normally be for a term which is not less than at least three years. Sections 92CC (6) and 92CC (7) contain circumstances under which the APA will not be binding or can be declared void ab-initio. Rule 10Q and 1OR contain circumstances under which the APA could be revised or cancelled.
TYPES OF APAs
The APA scheme envisages three types of APAs: unilateral, bilateral and multilateral. The choice is on the applicant to choose a particular type of APA at the time of making the application.
Unilateral APA is an agreement between the Board and the applicant and does not involve any agreement with the treaty partner. It, therefore, does not guarantee the ALP or Transfer Pricing Method (TPM), determined under an APA, being accepted by the other country.
In bilateral APA, the applicant is required to make an application with the competent authority of India and simultaneously the applicant or its AE should apply to the competent authority of the other country. The two competent authorities are required to reach an arrangement through Mutual Agreement Procedure (MAP) negotiation. This arrangement is required to be accepted by the applicant before a bilateral APA can be entered into.
In multilateral APA,the applicant is required to make an application with the competent authority of India and simultaneously the applicant or its AE should apply to the competent authority of the other countries which are relevant for such a Agreement. Indian competent authority has to reach an arrangement through MAP with competent authorities of more than one country, before that agreement could be offered to the applicant.The arrangement is required to be accepted by the applicant before a multilateral APA can be entered into.
Request for bilateral or multilateral APA can be accepted by Indian competent authority where:
(i) a tax treaty exists between India and other country(ies) containing an article on “Mutual Agreement Procedure”;
in case of international transactions leading to economic double taxation arising out of TP adjustments, the said tax treaty contains provisions similar to paragraph 2 in the article 9 as provided in OECD model convention on “Associated Enterprises”, and the corresponding APA program exists in the other country.
In unilateral APA, the applicant does not wish to involve competent authority of any other country, and the agreement is only between him and the Board. Since, there is no prior agreement with the competent authority of any other country; there may be a possibility of double taxation in unilateral APA.
ADVANTAGES OF AN APA
The APA is designed to:
(a) provide tax certainty with regard to determination of ALP of the international transaction with respect to which the APA has been entered into (also called “covered transaction”);
(b)reduce the risk of potential double taxation through bilateral or multilateral APA (A taxpayer is thus encouraged to apply for bilateral or multilateral APAs);
(c)reduce compliance cost by eliminating the risk of transfer pricing audit and resolving long drawn and time consuming litigation;
(c)reduce the burden of record keeping, as the taxpayer knows in advance the required documentation to be maintained to substantiate the agreed terms and conditions of the agreement.
There are two different set-ups for processing of APA and to help the Board to enter into an APA. First set-up comprises of the competent authority of India [which is Joint Secretary (FT&TR-I) in the Ministry of Finance],and his representative (i.e; one Director and two Under Secretaries).
The second set-up is the APA team which is defined in Rule 10F. At present the APA team, constituted by the Board, consists of one Commissioner, 4 Additional Commissioners and 4 Deputy Commissioners. The Board may include more officers in future in this team. The APA team reports to DGIT (International Taxation). DGIT may include experts in economics, statistics, law or any other field in the team who would be drawn from the Government Departments. Board may constitute more APA teams in future depending on the work load.
The APA scheme involves the following process:
1. Pre-filing consultation;
2. Furnishing of an APA application;
3. Acceptance/rejection of an APA application;
4. Action by the taxpayer, the assessing officer and the transfer pricing officer while the APA is processed or negotiated;
5. Amendment to an APA application;
6. Assignment of an APA application to APA team; Examination and analysis of an APA application; Conversion of a unilateral APA into bilateral APA Entering into a unilateral APA;
7. Negotiation by the competent authority in bilateral/ multilateral APA and entering into an APA
8. Action by the taxpayer and the assessing officer on entering into an APA;
9. Annual compliance report;
10. Compliance audit of the agreement; Cancellation and revision of APA.
Before a formal APA application can be made, the tax payer is required to request for a pre-filing consultation by making an application to Director General of Income Tax (International Taxation). The application shall be assigned by DGIT(IT) to one of the APA teams (presently there is only one APA team). The APA team shall carry out the pre-filing consultation with the applicant. In case of bilateral/multilateral APA, competent authority or his representative will be associated during pre-filing consultation. The purpose of pre-filing consultation is to enable the applicant and the APA team to assess the possibility of entering into an APA. Issues to be discussed in the pre-filing consultation amongst other things would include.-
• determination of the nature and scope of the agreement,
• identification of transfer pricing issues like the FAR analysis,
• the proposed Transfer Pricing Method (TPM) and determination of ALP,
• determination of the international transactions proposed to be covered
• details of other international transactions not proposed to be covered,
• the broad terms of the agreement which will include manner of adjustment or variation, etc.
The discussion in pre-filing consultation shall not bind any party. If applicant wants to maintain anonymity, the same is also allowed and to that extent the details (which identifies the applicant) in the application form may be omitted. However, in case a taxpayer makes a request for pre-filing on an anonymous basis, the identity of authorized representative must be disclosed in the request along with sufficient information about the business operation and international transaction in order to make any discussion meaningful. The understanding reached on various issues in the pre-filing consultations would be reduced in writing and a copy of the same will be given to the applicant.
The request for pre-filing consultation is required to be in Form No 3CEC. The form is self-explanatory. However, the following guidance is provided with respect to some of the items:
• Serial no 2 requires global structure of the applicant group. It will be useful if this global structure is presented in the form of flow chart/diagram. This may be omitted, if the request is on anonymous basis. However, in that case this detail must subsequently be submitted with formal APA application in Form 3CED, in case that application is filed.
• Serial no 3 requires names of all the associated enterprises with which international transactions have either been undertaken or proposed to be undertaken. The applicant is required to provide the names of AEs and the nature of international transaction undertaken in last three years or proposed to be undertaken. The name of the associated enterprise may be omitted if the request is on anonymous basis. However, in that case this detail must subsequently be submitted with formal APA application in Form 3CED, in case that application is filed.
• Serial no 6 requires functional and risk profile of the applicant and the associated enterprise. It will be useful if detailed FAR analysis is provided for the applicant and the associated enterprise with respect to the international transaction sought to be covered in the APA application.
• Serial no 17 requires names and designation of the representatives. It would be useful if representative files proper authorization from the applicant (except in case of anonymous application).
• Special attention is invited to note 5 of Form 3CEC which is relevant for bilateral/multilateral APA. The information requested in this note (whether India has DTAA with the other country and whether such country has APA program) must be furnished along with Form 3CEC.
FURNISHING OF AN APA APPLICATION:
If in pre-filing consultation, the suitability of entering into an APA is determined then after pre-filing consultation, the applicant may choose to file the application for entering into APA in Form No 3CED. Before filing the application, the applicant is also required to pay fee which is to be computed as under:
Amount of international transaction entered into or proposed to be undertaken, in respect of which agreement is proposed during the proposed period of agreement.
Amount not exceeding Rs. 100 crores 10 lacs
Amount not exceeding Rs. 200 crores 15 lacs
Amount exceeding Rs. 200 crores 20 lacs
It is clarified that the fee is to be computed on the basis of likely value of international transaction for which the APA application is filed. The fee shall be payable by means of electronic transfer directly to the government account as under:
“Indian Government APA A/c”
current A/c number 50140531563 payable at Allahabad Bank, Parliament Street, New Delhi,
IFSC Code: ALLA0210163
The proof of payment towards the fee may be enclosed along with the APA application in Form No.3 CED. Fee paid is non¬refundable except when the application is not allowed to be proceeded with under Rule 10K.
In case of unilateral APA, the application is required to be furnished in triplicate to the Director General of Income Tax (International Taxation) and in case of bilateral/multilateral APA, the application is required to be furnished in triplicate to the competent authority of India, i.e. Joint Secretary (FT&TR-I) in the Ministry of Finance. In case of bilateral/multilateral APA, the applicant or the AE, as the case may be, must initiate the procedure for entering into APA with the other country as well and furnish evidence to the Competent Authority of India regarding the same.
The application must be filed within the time as provided in Rule 101(3). If the international transaction is of a continuing nature, from dealings that have already occurred, the application must be filed before the first day of the previous year relevant to the first assessment year which the application seeks to cover. For example, if the APA application seeks to cover five years starting from A.Yr 2014-15 to A. Yr 2018-19, the application must be filed before Pt April, 2013. However, if the international transaction is the one which the applicant has not yet undertaken, the application may be filed before undertaking such transaction. For example, if the applicant is going to purchase some raw material from its foreign associate for the first time starting from 1 December 2012 and the application is made before 1 December 2012, the applicant has a choice to include A. Yr 2013-2014 as the first assessment year in the APA application. In that case, the first condition that for A. Yr 2013-2014 the application should be filed before Pt April, 2012 shall not apply.
Since pre-filing consultation is compulsory before filing an APA application, it is advisable for the applicant to initiate pre-filing consultation sufficiently in advance to be able to meet the time requirement of Rule 10I(3) explained above.
The APA application is required to be in Form No 3CED. The form is self-explanatory. However, the following guidance is provided with respect to some of the items:
• Serial no 1(g) requires names and designation of the authorized representatives who would be appearing before the authorities. It would be useful if representative files proper authorization from the applicant.
• Serial no 13 requires multinational structure, organizational arrangement, operation set-up, including major transaction flows. It will be useful if this information is presented in the form of flow chart/ diagram.
• Serial no 17 requires detailed functional analysis of the applicant and all relevant entities with respect to the covered transactions. It would be useful if detailed FAR analysis is provided for the applicant and all relevant entities with respect to the covered transactions.
• After filing the application, a soft copy of the application may also be provided in the first meeting with the competent authority and the APA team.
ACCEPTANCE/REJECTION OF AN APA APPLICATION:
Preliminary processing of the APA application shall be carried out in accordance with Rule 10K. In case the application is defective or if any relevant document is not attached (and the defect is not removed within the time allowed), or the application is not in accordance with understanding reached in pre-filing consultation as per Rule 10H, the application may be rejected after providing an opportunity of being heard to the applicant. Fee will be refunded in case the application is rejected. However, the application shall not be rejected in any other circumstance.
Rule 10K (2) provides for rejection of the application, if it is not in accordance with the understanding reached in pre-filing consultation. An example of such an understanding could be that the bilateral/multilateral APA will be possible only when :
(i) a tax treaty exists between India and other country(ies) containing an article on “Mutual Agreement Procedure”;
in case of international transactions leading to economic double taxation arising out of TP adjustments, the said tax treaty contains provisions similar to paragraph 2 in the article 9 as provided in OECD model convention on “Associated Enterprises” and the corresponding APA program exists in the other country
ACTION BY THE TAXPAYER, THE ASSESSING OFFICER AND THE TRANSFER PRICING OFFICER WHILE THE APA IS PROCESSED OR NEGOTIATED:
Since processing and negotiation of an APA application takes time, it is possible that assessment process by the assessing officer with respect to the year under APA, or the transfer pricing audit by the transfer pricing officer with respect to the year under APA, might be required to be initiated or completed. Such proceedings by the assessing officer and the transfer pricing officer shall continue without taking cognizance of the fact that APA process with respect to that year has already been started. It is clarified that merely filing of an APA application will not have any impact on the action that the assessing officers or the transfer pricing officers are required to take under the Act. Further, the taxpayer is required to maintain all the documents and submit all the reports necessary under the Income-tax Act till the lodgment of modified return on finalization of the APA.
AMENDMENT TO AN APA APPLICATION:
The applicant may request in writing for an amendment to its application at any time before the finalization of the terms of the agreement. This may be allowed by the DGIT (International Taxation) [for unilateral APA] or the competent authority of India and the competent authority of the other country [for bilateral/ multilateral APA], if such an amendment does not have the effect of altering the nature of the original application. The applicant is also required to pay the additional fee, if any, due to the amendment. The request for conversion of unilateral APA application to bilateral or multilateral APA application will not be taken to have the effect of altering the nature of the original application.
ASSIGNMENT OF AN APA APPLICATION TO APA TEAM:
If an application is allowed to be proceeded with under Rule 10K, it shall be dealt with as under:
• In case of a unilateral application, the DGIT (International Taxation) shall assign it to one of the APA teams (there is only one team at this moment).The APA team shall examine and analyse the APA application and undertake negotiation with the applicant. The APA team shall make an endeavor to arrive at a negotiated settlement with the applicant. In case such a mutual agreement on relevant issues have been arrived at, the mutually agreed draft agreement shall be put up to the DGIT (International Taxation). DGIT shall, on being satisfied, send it to the Board for its consideration.
• In case of a bilateral and multilateral APA, the competent authority of India shall send the application to DGIT (International Taxation) for necessary enquiry, analysis and for preparation of draft report (draft Indian position paper). The DGIT shall assign it to one of the APA teams (at present there is only one team).The APA team shall then carry out detailed enquiry and analysis and prepare a draft Indian position paper in consultation with the Director General of Income Tax (International Taxation), the competent authority of India or its representatives and the applicant. The draft Indian position paper shall be forwarded by the DGIT (International Taxation) to the competent authority of India.
EXAMINATION AND ANALYSIS OF AN APA APPLICATION:
Since proper functional analysis, determination of transfer pricing methodology, examination of critical assumptions and specifying the manner in which the arm’s length price is to be determined are key to the success of the APA programme, power has been given to the APA team and the competent authority to hold meetings, call for additional documents/information, visit applicant’s business premises and make enquiries under Rule 10L(2). The applicant is expected to give full cooperation for this purpose. The APA team is required to do detailed functional analysis and examine the APA application in a reasonable and fair manner taking into consideration all the evidences and information produced by the applicant or collected by it.
CONVERSION OF A UNILATERAL APA INTO A BILATERAL APA:
A unilateral APA can be converted into a bilateral APA before the mutually agreed draft agreement is forwarded by the DGIT (Intl. Taxation) to the Board. While converting a unilateral APA application to a bilateral APA application, the applicant or its AE needs to make a similar request with the competent authority of the other country. The bilateral request of the applicant shall be forwarded by the DGIT to the competent authority in India. The competent authority of India shall decide whether the bilateral request is allowable based on the existence of appropriate provision on lines of OECD Model Article 9(2) in the tax treaty between India and the other country and also on the existence of an APA program in that other country. If the request is allowed, then the application would be processed as a bilateral APA application.
ENTERING INTO A UNILATERAL APA
On receipt of mutually agreed draft agreement, the Board may, with the approval of the Central Government, enter into an APA with the assessee. On behalf of the assessee, the APA shall be signed by the person who is competent to sign its Income-tax Return. Terms of APA will be in accordance with Rule 10M. Once APA has been entered into, DGIT(IT) shall send a copy of the APA to the commissioner of income tax having jurisdiction over the applicant. It may be noted that once a unilateral APA has been entered into, there will not be any MAP benefit available to the assessee with respect to the covered transactions.
NEGOTIATION BY THE COMPETENT AUTHORITY IN BILATERAL / MULTILATERAL APA AND ENTERING INTO AN APA
After receiving the draft Indian position paper the competent authority of India will then carry out negotiation with the other competent authority (ies) in accordance with the provision of Rule 44GA. During this process the competent authority of India will be free to deviate from the draft Indian position paper in order to arrive at negotiated settlement. The competent authority may require the applicant to file additional information and may conduct such enquiry as appropriate. The applicant will not be a part of the negotiation between the two competent authorities but he may be consulted for this purpose by the Indian Competent Authority. On successful completion of negotiations, the competent authority in India shall formalize a MAP arrangement with the competent authority in the other country (ies) and intimate the same to the applicant. The applicant is required to convey acceptance or otherwise of the arrangement within 30 days of such communication. Where the taxpayer accepts the MAP arrangement, the competent authority in India and the applicant shall prepare a mutually agreed draft agreement and the APA agreement shall be entered into by the Board with the assessee after its approval by the Central Government. On behalf of the assessee, the APA shall be signed by the person who is competent to sign its Income-tax Return. Terms of APA will be in accordance with Rule 10M. Once an APA has been entered into, the competent authority of India shall send a copy of it to the Commissioner of Income tax having jurisdiction over the assessee.
In case of failure to reach a MAP arrangement, the applicant shall be informed of the failure to reach an arrangement with the competent authority of the other country(ies). However, the applicant shall have an option to convert the request for bilateral APA to unilateral APA (without payment of additional fee) and inform the competent authority of India in writing. In such cases, the competent authority in India will forward all the information and documents (except the documents provided by the competent authority of the other country subject to confidentiality clause of the concerned DTAA) to the DGIT (International Taxation) who shall in turn examine the request of unilateral APA as per prescribed procedure.
ACTION BY THE TAXPAYER AND THE ASSESSING OFFICER ON ENTERING INTO AN APA (SECTION 92CD OF THE ACT):
Where in respect of an assessment year covered in the APA, a return of income has been filed prior to the date of entering into an APA, then within three months of entering into APA, the assessee is required to file a modified return in accordance with and limited to the APA.The modified return shall be deemed to be a return under section 139 and all the provisions of the Act shall apply accordingly. If the assessment or reassessment for the year/s covered under APA is pending, the assessing officer is required to complete that assessment or reassessment in accordance with the APA taking into consideration the modified return so furnished. Where the assessment or the reassessment has already been completed the assessing officer shall reassess or recompute the total income of the relevant assessment year having regard to and in accordance with the APA.
It may be kept in mind that a particular assessment year may involve many international transactions and not all international transactions may be covered international transactions under the APA. The assessment of international transactions which are not covered international transactions under APA will not be affected by entering into of an APA.
In case where a reference to TPO is pending with respect to any covered transaction of APA, the assessing officer shall inform the TPO about the filing of modified return in respect of that transaction. This communication shall be sent immediately after filling of the modified return by the assessee with respect to such covered transaction. On receipt of such communication, the Transfer Pricing Officer shall not proceed further for auditing the covered transaction. Similarly, if the covered transaction is pending before the Dispute Resolution Panel (DRP), the assessing officer shall inform the DRP immediately after filing of modified return by the assessee. On receipt of communication from the assessing officer, the DRP shall not give any direction with respect to the covered transaction. In this regard the attention is invited to Rule 10P(6) which states that the regular audit of the covered transactions shall not be undertaken by the TPO if an agreement has been entered into under Rule 10L except where the agreement has been cancelled under Rule 10R.
The procedures consequent to the filing of the modified return in relation to the covered transaction for the assessment years, included in the term of the APA,would include:
(i) Withdrawal of any appeal pending before the CIT(Appeal) by the assessee with respect to the covered transaction(s);
(ii) Withdrawal of appeal filed before the ITAT/ HC/ SC by the department as well as the assessee with respect to the covered transaction(s);
(iii) Withdrawal of objections filed before the DRP by the assessee with respect to the covered transaction(s) , as the assessing officer would not be required to make any adjustment for the covered transaction except in accordance with APA.
ANNUAL COMPLIANCE REPORT
The assessee is required to file annual compliance report in quadruplicate in Form 3CEF to DGIT(International Taxation) for each year covered in the agreement. Rule 100 governs the filing of annual compliance report by the assessee. It is required to be filed within 30 days of the due date of filing the income tax return for the assessment relevant to the previous year or within 90 days of entering into an agreement, whichever is later.The filing of Annual Compliance report is in addition to the modified return that is required to be filed.
COMPLIANCE AUDIT OF THE AGREEMENT
The compliance audit shall be carried out by the jurisdictional TPO in accordance with Rule 10P. The compliance audit will be carried out only to ensure compliance with the terms of the APA, including satisfaction of the critical assumptions and consistency of the application of the TPM. The TPO has to submit the report to the DGIT in case of unilateral APA and to the competent authority in India in case of bilateral or multilateral APA
CANCELLATION AND REVISION OF APA
The cancellation and revision of APA may be carried out in accordance with Rule 10Q and 1OR respectively. In case of revised agreement, the procedure as regard to original agreement shall be repeated. That is the taxpayer will be required to file the modified return for the period after the revision of the APA within three months and the assessing officer will reassess or recompute the total income of the relevant assessment year having regard to and in accordance with the revised agreement.
This is illustrated with an example. Let us assume that APA is signed with respect to A. Yrs 2014-2015 to 2018-2019. The Agreement is signed on 31 December 2014 by which time the return of income for A. Yr 2014-2015 has already been filed in accordance with section 139 of the Act. The assessee is required to file the modified return for A. Yr 2014-2015 by 31 March 2015. Subsequently, the APA is revised for A. Yrs 2016-2017 to 2018-2019. The revised APA is signed on 31 December 2016, by which time the return of A. Yr 2016-2017 has already been filed in accordance with the provision of section 139 and in compliance of the terms of the pre-revised APA. Now the assessee is required to file the modified return with respect to the A.Yr 2016-2017, by 31 March 2017, to give effect to the terms of the revised APA.
WITHDRAWAL OF AN APA APPLICATION
The applicant can withdraw APA application by filing a request in form 3CEE at any time before the finalization of the term of the agreement. The fee paid shall not be refunded on withdrawal of application. (i.e before sending of the draft agreement by the DGIT to the Board in case of unilateral APA request and before sending of the MAP arrangement by the competent authority to the Board in case of bilateral or multilateral APA request)
APPLICANT DISCLOSURE OBLIGATION
Any facts, information and statement submitted by an applicant in connection with APA request along with application or during processing of application must be true, correct and accurate. If APA team or competent authority requires additional information for processing and negotiation of agreement, the applicant is required to provide such information within the time requested.
• While the APA request is pending, the applicant has an obligation to update all the material facts and information filed along with application on a timely basis.
• Failure to provide all the requisite information for process involved in the APA, or on requests by APA team or the competent authority, can cause significant delay and may result in non-finalization of APA.
(1) The term “critical assumptions” is defined in Rule 10F(f). It means the factors and assumptions that are so critical and significant that neither party entering into an agreement will continue to be bound by the agreement if any of those factors or assumptions is changed. APA will define critical assumptions in the agreement. These critical assumptions will depend on the facts of each case.
(2) Decisions about an ALP or the suitability of a particular transfer pricing methodology would be made on the basis of the facts existing at the time. If particular circumstances are held as central to the decision, any changes in them would materially affect the ALP or the suitability of the transfer pricing methodology or the way it would need to be applied. These circumstances would need to be addressed by the taxpayer and be included in the APA request in Form No.3CED as ‘critical assumptions’. Critical assumptions should be noted even where they are not within the applicant’s control.
(3) The terms and conditions of the APA will specify the critical assumptions. Critical assumptions may include operational, legal, tax, financial, accounting and economic conditions or assumptions.
(4) The TPO would at time of compliance audit also determine whether critical assumptions as mentioned in the agreement are met.
(5) In case of breach of critical assumptions the assessee or the TPO should notify, at the earliest, about such a breach to the DGIT (Int. Tax) in case of unilateral APA or to the Competent Authority in case of Bilateral/Multilateral APA along with supporting documents. In these circumstances, the assessee may request for future course of action as to whether the APA has to be revised or cancelled.
(6) The Board or the DGIT(Int. Tax) or the competent authority may also on its own, having noticed any breach of critical assumptions , seek to revise the APA or cancel the APA after due information and consultation with the taxpayer
(7) In case of breach of critical assumptions if the APA cannot be revised to the acceptance of all the parties (including the competent authority of other country/ countries) to the APA then the APA would be liable to be cancelled.
LEGAL EFFECT OF THE APA
(1) An APA is binding on the assessee who entered into an APA in relation to the covered transactions and on the Commissioner of Income-tax and other income-tax authorities subordinate to him in respect of that assessee and that transaction. If the assessee complies with the terms and conditions of the APA, the tax administration will not contest the ALP or the application of the TPM to the covered transactions in the APA in the case of the assessee for the years to which the APA specifically relates.
(2) The APA shall not be binding on the assessee or the Commissioner, if
• There is a change in law or facts having bearing on the agreement so entered [section 92CC(6) of the Act];
• The agreement has been obtained by the assessee by fraud or misrepresentation of facts-the agreement void ab-initio [section 92CC(7) of the Act];
• There is any change in any of the critical assumptions or there is failure on the part of the assessee to meet conditions subject to which the agreement has been entered into-the agreement can be revised or cancelled[Rule 10M(4)];
• The agreement is cancelled under Rule 10R.
RENEWING AN APA
(a) A new application has to be filed by the taxpayer after the expiry of the APA term with the DGIT (Intl. Taxation) and the competent authority in India as the case may be.
(b) The renewal request will follow the same forms and procedures as in initial APA request except that pre-filing consultation is not required.
(c) The renewal application would be treated as a fresh application and procedure and fee would apply accordingly.
(d) The renewal request may be filed well in advance before the expiration of the terms of the existing APA.