2014 (10) TMI 862 - AT - Income Tax

Addition on a/c of adjustment of arm s length price - CIT(A) deleted the addition - selection of comparable - Held that - Considering the judicial precedent that the finding arrived at in the impugned order deserves to be upheld as to exclude Vishal Technologies as a comparable. The fact remains that Vishal has a different business model is a consistent fact on record qua the said comparable which finding has not been rejected by the Revenue. Working capital adjustment - Held that - The assessee consistently has sought right from the assessment stage the adjustments for working capital deployment in its comparables the working has been placed before the AO and again before the CIT(A). Whereas ld. AO on principle held it to be not allowable the CIT(A) considering the same has come to the finding under challenge by the Revenue. Apart from the general argument which on facts is found to be not correct no infirmity in the working accepted by the CIT(A) has been brought to our notice. In the aforementioned peculiar facts and circumstances being satisfied by the finding arrived at which has been reproduced in the earlier part of this order we dismiss the departmental ground.

Issues Involved:
1. Deletion of addition on account of adjustment of arm's length price.
2. Working capital adjustment.

Detailed Analysis:

1. Deletion of Addition on Account of Adjustment of Arm's Length Price

Relevant Facts:
The assessee, involved in IT enabled services, filed its return declaring an income of Rs. 24,710/-. The transaction net margin method (TNMM) was used with operating profit/total cost (OP/TC) as the profit level indicator (PLI). The assessee selected 22 comparables with an average PLI of 12%, which was rejected by the Transfer Pricing Officer (TPO) who accepted only 10 comparables, resulting in an average margin of 21.17% and an addition to the income.

Arguments and Findings:
- Nucleus Netsoft & GIS (India) Ltd.: The assessee argued that this company should not be considered as a comparable due to its involvement in software development and other activities not akin to the assessee's business. The CIT(A) upheld the inclusion of this company as a comparable, noting that the amalgamation process did not affect its independent existence during the relevant financial year.
- Vishal Information Technologies Ltd.: The assessee contended that this company outsources its work, making its business model different from the assessee's in-house operations. The CIT(A) agreed with the assessee, citing the ITAT decision in the case of Maersk Global Service Center (India) Pvt. Ltd., and excluded Vishal Information Technologies Ltd. from the list of comparables.

Conclusion:
The Tribunal upheld the CIT(A)'s decision to exclude Vishal Information Technologies Ltd. from the list of comparables due to its different business model, which involves outsourcing a significant portion of its work.

2. Working Capital Adjustment

Relevant Facts:
The assessee requested a working capital adjustment to bring the comparables to its level, which was rejected by the TPO. The CIT(A) allowed the adjustment, citing that the difference in working capital requirements affects the margins or prices, costs, or profits.

Arguments and Findings:
- Revenue's Argument: The CIT DR relied on the TPO's order, arguing that the assessee did not demonstrate the impact of working capital deployment on comparables.
- Assessee's Argument: The assessee argued that working capital adjustments are necessary for comparability analysis, supported by OECD Guidelines and judicial precedents. The assessee provided detailed workings demonstrating the impact of working capital differences on margins.

Conclusion:
The Tribunal upheld the CIT(A)'s decision to allow working capital adjustments, noting that the assessee consistently sought these adjustments and provided detailed workings to demonstrate their impact.

Additional Points from the Cross Objection (CO) by the Assessee:

1. Use of Financial Information of Comparables: The assessee's ground regarding the use of financial information of comparables was dismissed as it was contrary to statutory rules.
2. Risk Adjustment: The claim for risk adjustment was dismissed as the assessee did not provide any working to justify such adjustment.
3. STPI Unit Claim: The ground regarding the assessee being an STPI unit entitled to tax holiday was withdrawn by the assessee.

Final Decision:
The Tribunal dismissed both the Revenue's appeal and the assessee's cross-objection, upholding the CIT(A)'s decisions on the exclusion of Vishal Information Technologies Ltd. and the allowance of working capital adjustments.

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