The Ministry of Finance has notified an Advance Pricing Agreement Scheme (Rules 10F to 10T of Income Tax Rules, 1962) vide notification No. 36/2012 dated 30-8-2012.
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 Advance Pricing Agreement Scheme shall come into effect from the date of its publication in the Official Gazette, i.e. from 30.08.2012.
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An Advance Pricing Agreement is an agreement between the Central Board of Direct Taxes and any person, which determines, in advance, the arms length price or specifies the manner of the determination of arms length price (or both), in relation to an international transaction.
Hence, once Advance Pricing Agreement has been entered into with respect to an international transaction, the arms length price with respect to that international transaction, for the period specified in the Advance Pricing Agreement, will be determined only in accordance with the Advance Pricing Agreement.
The Advance Pricing Agreement process is voluntary and will supplement appeal and other Double Taxation Avoidance Agreement (DTAA) mechanism for resolving transfer pricing dispute. The term of Advance Pricing Agreement can be a maximum of five years.
The Advance Pricing Agreement scheme notifies three types of Advance Pricing Agreement: unilateral, bilateral and multilateral. The choice is on the applicant to choose a particular type of Advance Pricing Agreement at the time of making the application.
Unilateral Advance Pricing Agreement is an agreement between the Board and the applicant and this process does not involve any agreement with the treaty partner.
In bilateral and multilateral Advance Pricing Agreement request, the applicant is required to make an application with the Competent Authority of India as well as the Competent Authority of the other country.
As is the international practice, before formally applying for the Advance Pricing Agreement there will be a pre-filing consultation between the taxpayer and the Government to enable the applicant and the Advance Pricing Agreement team to assess the possibility of entering into an Advance Pricing Agreement.
The formal Advance Pricing Agreement application can be filed after the pre-filing consultation accompanied by the payment of fees as notified.
In case of unilateral Advance Pricing Agreement, the application is required to be furnished with the Director General of Income Tax (International Taxation), New Delhi
And in case of bilateral/multilateral Advance Pricing Agreement, the application is required to be furnished with the Competent Authority of India, i.e. Joint Secretary (FT&TR-I) in the Ministry of Finance.
In case of bilateral/multilateral Advance Pricing Agreement, the applicant must initiate the procedure for entering into Advance Pricing Agreement with the other country as well and furnish evidence to the Competent Authority of India regarding the same.
The APA scheme has many advantages.
It will provide
tax certainty with regard to determination of arms length price of the international transaction with respect to which the APA has been entered into,
reduce the risk of potential double taxation through bilateral or multilateral Advance Pricing Agreement,
reduce compliance cost by eliminating the risk of transfer pricing audit and resolving long drawn and time consuming litigation and other dispute resolution process,/P>
alleviate 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.
The aforesaid Notification relating to Advance Pricing Agreement Scheme gives details regarding the process and relevant forms. It also contains information regarding the annual compliance report and provisions regarding cancellation and revision of Advance Pricing Agreement.
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