2016 (1) TMI 1117 - AT - Income Tax

Transfer pricing adjustment - selection of comparables - Held that - The conceptualization of the services is primarily done by Ameriprise US which collects data and sends the same in raw form to the assessee or the other relevant data is procured by the assessee directly from the sources referred by the Ameriprise US. The assessee compiles such raw data in desired format/sequence and undertakes processes, such as, merging of data, sequencing, etc. This is an in-house function performed by the assessee for further actions to be taken by Ameriprise US. Thus the assessee is involved in providing back office support services to Ameriprise US without any direct involvement in the conduct of business of Ameriprise US. Accentia Technologies Ltd., i-Gate Global Solutions Sdn. Bhd. directed to be excluded from the final list of comparables due to this extra-ordinary financial event. Infosys BPO - we find from the Annual report of this company, that there was acquisition by this company of McCamish Systems LLC. Acquisition of McCamish Systems LLC during the year, being an extraordinary financial event, renders it incomparable. Following the reasons taken note of above, we order for the elimination of this company from the final set of comparables. TCS E-Serve International Ltd. and TCS e-Serve Ltd.the entity level figures render this company as unfit for comparison. Therefore, we order for the removal of this company from the final set of comparables. eClerx Services Limited excluded from the final set of comparables. R. Systems (Seg.) - We note that in the immediately preceding year, this Company was considered by Coordinate Bench of Tribunal. It was directed that if the contention of the assessee is correct, that the relevant data for the concerned financial year can be deduced from the information available from their annual reports, then, there can be no objection to the inclusion of these companies in the list of comparables with the adjusted data for the relevant financial year itself. Respectfully following the reasoning of Coordinate Bench in immediately preceding year, we set aside the impugned order and remit the matter to the file of TPO/AO for examining this aspect of the matter. CG-VAK Software and Exports Ltd. (Seg.) - at a company cannot be excluded from the list of comparables on the ground of its low turnover. In principle, we direct the inclusion of the relevant segment of this company in the list of comparables. The TPO is directed to include the operating profit/operating costs of the ITES segment of this company in the list of comparables, after due verification of the necessary figures for determination of the operating profit margin etc. Inter-company Receivables - Held that - No question of charging any interest as a separate transfer pricing adjustment.

Issues Involved:

1. Addition to total income in respect of international transactions.
2. Non-acceptance of economic analysis for determining Arm's Length Price (ALP).
3. Use of multiple year data and data pertaining to financial year 2009-10.
4. Rejection of certain comparable companies.
5. Inclusion of certain companies in the final set of comparables.
6. Computational errors in the margin of comparable companies.
7. Errors in computation of working capital adjustment.
8. Treatment of operating and non-operating items.
9. Selection of companies earning super normal profits.
10. Adjustments for differences in risk profile.
11. Benchmarking inter-company receivables as a separate international transaction.
12. Initiation of penalty proceedings.
13. Levying interest under sections 234B and 234D.

Detailed Analysis:

1. Addition to Total Income:
The Tribunal addressed the addition of INR 82,093,645 to the total income of the assessee concerning international transactions related to IT-enabled back-office services and imputed interest on inter-company receivables. The Tribunal found that the TPO/DRP had erred in making this addition without proper justification.

2. Non-Acceptance of Economic Analysis:
The Tribunal noted that the TPO/DRP did not accept the economic analysis undertaken by the assessee for determining the ALP of the impugned transactions. The Tribunal emphasized that the TPO/DRP failed to return a finding about the existence of any circumstances specified in clauses (a) to (d) of sub-section (3) of section 92C of the Act.

3. Use of Multiple Year Data:
The Tribunal found that the TPO/DRP erred in not accepting the use of multiple year data as adopted by the assessee in its TP documentation. The Tribunal held that the TPO should have considered the data available to the assessee at the time of complying with the TP documentation requirements.

4. Rejection of Comparable Companies:
The Tribunal addressed the rejection of certain comparable companies selected by the assessee. It was noted that the TPO/DRP applied inappropriate comparability criteria such as turnover less than INR 5 crore, diminishing revenue, export turnover less than 75 percent, and different accounting years. The Tribunal found these criteria to be unjustified.

5. Inclusion of Certain Companies:
The Tribunal examined the inclusion of companies like Accentia Technologies Ltd., iGate Global Solutions Ltd., Infosys BPO Ltd., TCS E-Serve International Ltd., TCS E-Serve Ltd., and eClerx Services Ltd. The Tribunal excluded these companies due to reasons such as extraordinary financial events, functional dissimilarity, and insufficient segmental details.

6. Computational Errors:
The Tribunal noted computational errors in the margin of comparable companies used in determining the arm's length margin. The Tribunal directed the TPO/AO to rectify these errors.

7. Working Capital Adjustment:
The Tribunal found errors in the computation of working capital adjustment used in determining the arm's length margin. The Tribunal directed the TPO/AO to recompute the working capital adjustment correctly.

8. Treatment of Operating and Non-Operating Items:
The Tribunal addressed the issue of treatment of operating and non-operating items while computing the margins of the assessee and comparable companies. The Tribunal held that foreign exchange gain/loss arising out of revenue transactions should be considered as an item of operating revenue/cost.

9. Selection of Companies Earning Super Normal Profits:
The Tribunal found that the TPO/DRP erred in selecting companies earning super normal profits as comparable to the assessee. The Tribunal directed the exclusion of such companies from the final set of comparables.

10. Adjustments for Differences in Risk Profile:
The Tribunal noted that the TPO/DRP failed to make suitable adjustments to account for differences in the risk profile of the assessee vis-`a-vis the comparable companies. The Tribunal directed the TPO/AO to consider these adjustments.

11. Inter-Company Receivables:
The Tribunal addressed the issue of treating inter-company receivables as a separate international transaction and benchmarking the same by applying the CUP method. The Tribunal held that there was no need to charge interest as a separate transfer pricing adjustment since the payments were realized within the stipulated time as per the agreement.

12. Penalty Proceedings:
The Tribunal found that the AO erred in initiating penalty proceedings under section 271(1)(c) of the Act. The Tribunal directed the AO to reconsider the initiation of penalty proceedings.

13. Levying Interest:
The Tribunal addressed the issue of levying interest under sections 234B and 234D of the Act. The Tribunal held that the issue is consequential in nature and shall be decided by the AO accordingly.

Conclusion:
The Tribunal allowed the appeal of the assessee for statistical purposes, directing the TPO/AO to re-examine the issues in conformity with the observations made in the judgment. The Tribunal emphasized the need for a reasonable opportunity of hearing for the assessee in the fresh proceedings.

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