2015 (12) TMI 1548 - AT - Income Tax

Transfer pricing adjustment - comparable selection - Held that - Comparable companies, performing the same specified support services as that of the assessee company cannot be found, and hence only companies which have broad comparative functional profile of undertaking support services in other fields, have to be taken as comparables. This is for the reason that the assessee is specialized in providing emergency assistance and support services to the members/clients of AE. Educational Consultant India Limited, ICRA Management & Consulting Services Ltd., Indian Tourism Development Corporation Ltd., excluded from the list of comparable companies Global Procurement Consultant Limited rightly be taken as the comparable by the TPO HCCA Business Services Pvt. Ltd. company is to be included as a comparable. - Decided partly in favour of assessee

Issues Involved:
1. Rejection of certain comparable companies by the Transfer Pricing Officer (TPO) and Dispute Resolution Panel (DRP).
2. Inclusion of certain comparable companies by the TPO and DRP.
3. Non-allowance of economic adjustment due to differences in risk profiles.
4. Levying of interest under Section 234B and Section 234C of the Income Tax Act.

Detailed Analysis:

1. Rejection of Comparable Companies:
Educational Consultants India Limited:
This company is a 100% Government of India-owned entity. The Tribunal cited the case of M/s. ThyssenKrupp Industries India Pvt. Ltd., where it was held that government-owned companies should not be included as comparables due to the lack of profit motive and preferential treatment by the government. Consequently, the Tribunal directed the TPO to exclude this company from the list of comparables.

ICRA Management & Consulting Services Ltd.:
The assessee argued that this company should be included as it provides management consultancy services similar to Access India Advisors Ltd., which was accepted as a comparable. However, the DRP noted that ICRA's related party transactions exceeded 25% of total revenues and that it did not own intangible assets, unlike the assessee. The Tribunal upheld the DRP's decision to exclude ICRA Management & Consulting Services Ltd. due to these significant differences.

India Tourism Development Corporation Ltd.:
Similar to Educational Consultants India Limited, this company is also 100% government-owned. Following the same rationale as in the case of Educational Consultants, the Tribunal directed the TPO to exclude this company from the list of comparables.

2. Inclusion of Comparable Companies:
Global Procurement Consultant Limited:
The assessee contested the inclusion of this company, arguing it was government-owned and functionally dissimilar. However, the Tribunal found that it was co-promoted by the Export Import Bank of India along with private sector companies and provided specialized procurement support services. The Tribunal concluded that the company's functional profile was broadly comparable to the assessee's, thus justifying its inclusion.

HCCA Business Services Pvt. Ltd.:
The assessee argued that this company provided low-end BPO services and was not functionally comparable. However, the Tribunal found that HCCA provided professional support services, such as payroll processing, HR operations, and accounting services. Given the broad functional similarity, the Tribunal upheld its inclusion as a comparable.

3. Non-Allowance of Economic Adjustment:
The assessee argued for an economic adjustment to account for differences in risk profiles between the comparables and itself. The TPO/DRP rejected this request, citing the absence of robust and reliable data. The Tribunal did not find sufficient grounds to overturn this decision.

4. Levying of Interest under Section 234B and Section 234C:
The assessee contested the levying of interest under Sections 234B and 234C of the Income Tax Act. However, this issue was not elaborately argued or addressed in the Tribunal's findings.

Conclusion:
The Tribunal directed the TPO to exclude Educational Consultants India Limited and India Tourism Development Corporation Ltd. from the list of comparables due to their government ownership. It upheld the exclusion of ICRA Management & Consulting Services Ltd. due to significant functional differences and related party transactions. The Tribunal also upheld the inclusion of Global Procurement Consultant Limited and HCCA Business Services Pvt. Ltd. as comparables due to their broadly similar functional profiles. The appeal was partly allowed, with the Tribunal directing the TPO to adopt a revised list of comparables.

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