2014 (5) TMI 1068 - AT - Income Tax

Depreciation on the UPS @ 60% as are applicable to the computers - Held that - After hearing the rival submissions we found that this issue is duly covered by the decision of the Hon ble Delhi High Court in the case of CIT vs. BSES Yamuna Powers Ltd. (2010 (8) TMI 58 - DELHI HIGH COURT ). Respectfully following the decision of the Hon ble Delhi High Court we delete the disallowance sustained by the CIT(A). - Decided in favour of assessee. Transfer pricing adjustment in the operating margin of CDR unit and sustaining part addition therein by the CIT(A) - selection of comparable - Held that - Out of the 5 companies for which the assessee has asked for relief before us and requested to exclude these companies also from the comparables we further exclude 3 companies out of the comparables and sustain the action of CIT(A) to treat R. Systems International Ltd. to be a comparable company. We noted that exclusion or non-exclusion of R. Systems International Ltd. will not have much impact on the cash PLI because in the case of this company the cash PLI comes to 26.1 per cent as computed by the assessee and filed before us while the average cash PLI in the case of the assessee comes to 32.67 per cent. The assessee has given average cash PLI of all the comparables at 24.97 per cent which is much below the cash PLI worked out in the case of the assessee at 32.67 per cent. The cash PLI earned by the assessee is much more than the average of the cash PLI in the case of the other comparables. Therefore in our opinion no addition on this account can be sustained in the case of the assessee. We accordingly set aside the order of CIT(A) and delete the addition sustained by CIT(A). - Decided in favour of assessee.

Issues Involved:
1. Denial of depreciation on UPS at the rate applicable to computers.
2. Calculation of operating margin of comparable companies for computing Arm's Length Price (ALP) for Transfer Price Adjustment.
3. Adjustment in operating margin of CDR unit for Transfer Price Adjustment.
4. Adjustment for differential rate of depreciation in calculating margins.
5. Consideration of functional differences between appellant's CDR unit and comparable companies.
6. Application of diminishing revenue/persistent loss filter and different financial year filter by TPO.
7. Exclusion of certain companies as comparables based on size and turnover.

Issue-wise Detailed Analysis:

1. Depreciation on UPS:
The Assessee claimed depreciation on UPS at the rate of 60% applicable to computers. The CIT(A) denied this claim. The Tribunal found this issue covered by the decision of the Hon'ble Delhi High Court in CIT vs. BSES Yamuna Powers Ltd. (ITA No. 1267/2010) and allowed the Assessee's claim, deleting the disallowance sustained by the CIT(A).

2. Calculation of Operating Margin for ALP:
The TPO suggested an addition of Rs. 1.68 crore on the international transaction of the CDR division, increasing the operating margin from 12.49% to 29.83%. The CIT(A) directed the AO to compute the TP adjustment by taking the operating margin of comparables at 22.92%. The Tribunal noted that the Assessee's CDR unit rendered services both to AEs abroad and to the Goa plant. The Tribunal adjusted the operating profit to 14.16% by considering notional revenue for services rendered to the Goa plant.

3. Adjustment in Operating Margin of CDR Unit:
The Assessee argued that the TPO's selection of comparables and calculation of revenue for the CDR unit was flawed. The Tribunal agreed with the Assessee's objections to certain comparables selected by the TPO, resulting in a revised operating margin of 14.16%. The Tribunal also considered the Assessee's contention regarding the adjustment for depreciation anomaly and cash PLI, ultimately finding the Assessee's cash PLI of 32.67% to be higher than the average of comparables at 24.97%.

4. Adjustment for Differential Rate of Depreciation:
The Tribunal acknowledged the Assessee's argument that different companies have different depreciation policies, affecting operating margins. The Tribunal referred to various case laws supporting the adjustment for depreciation differences and accepted the Assessee's computation of cash PLI.

5. Functional Differences Between CDR Unit and Comparables:
The Tribunal examined the functional differences between the Assessee's CDR unit and the comparables selected by the TPO. It excluded certain companies from the comparables list due to high turnover, abnormal profits, and functional differences, aligning with the Assessee's objections.

6. Application of Diminishing Revenue/Persistent Loss Filter and Different Financial Year Filter:
The CIT(A) held that the TPO was incorrect in applying these filters. The Tribunal did not provide a separate analysis for this issue, implicitly supporting the CIT(A)'s decision by focusing on the selection of appropriate comparables.

7. Exclusion of Certain Companies as Comparables Based on Size and Turnover:
The Tribunal excluded several companies from the comparables list due to high turnover and abnormal profits, including HCL Comnet Systems and Services Ltd., Infosys BPO Ltd., and Wipro Ltd. The Tribunal also excluded companies with tainted management and those operating under different business models, such as Maple eSolutions Ltd. and Triton Corporation Ltd.

Conclusion:
The Tribunal allowed the Assessee's appeal, granting relief on the issues of depreciation on UPS, adjustment of operating margin, and exclusion of certain comparables. The Tribunal dismissed the Revenue's appeal, upholding the CIT(A)'s decisions on the exclusion of certain companies and the application of filters. The final decision resulted in no addition to the Assessee's income on account of transfer pricing adjustments.

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