2015 (11) TMI 1563 - AT - Income Tax

Transfer pricing adjustment - determination of ALP - selection of comparable - A.R. contended that the TPO/ DRP has arbitrarily rejected the functionally comparable companies namely Steewards Lloyed India Ltd. for TP. - Held that - TPO has rejected the companies on the sole ground that these companies fall in service filter and has service income to sales income ratio of less than 75% whereas a bare perusal of the audited financial statement of the company for the year ending 31.03.2004 lying at page 48 of appeal set goes to prove that this company has service income to sale is more than 75% i.e. 93.82%; hence arbitrarily rejected by the TPO/ DRP. So M/s. Steewards Lloyed India Ltd. qualifies for adoption as comparable for transfer pricing. Denial of adjustment of complete utilization as well as risk adjustment while working on average matching of comparables - Held that - Bare perusal of the findings returned by TPO/DRP reproduced above denying the benefit of capital utilization adjustment and risk adjustment goes to prove that the objection raised by the tax payer having been mechanically disposed off without returning the specific findings as to how and under what circumstances the data brought on record is not reliable or robust. TPO/DRP has neither declared the data brought on record by the taxpayer as unreliable nor they have injected fresh data to assess the capital utilization adjustment and risk adjustment as claimed by the taxpayer. A perusal of the discussion made by DRP regarding disallowance of utilization adjustment and risk adjustment in para 8.2.6 further goes to prove that merely academic reasons have been given to disallow the same. Case law relied upon by the DRP is not applicable to the facts and circumstances of the case when examined in the light of data brought on record by the taxpayer to decide the issue in controversy. So findings of DRP/TPO on this issue are liable to be reversed. Consequently Ground No.2 read with Ground No.1.6 are determined in favour of the appellant for statistical purposes and the file is ordered to be restored to the TPO to decide the matter afresh by passing speaking order after providing opportunity of being heard to the parties.

Summary

Issues Involved:
1. Transfer Pricing Adjustment
2. Exclusion and Inclusion of Comparables
3. Capital Utilization Adjustment and Risk Adjustment

Detailed Analysis:

1. Transfer Pricing Adjustment:
The appellant, M/s. Bechtel India Pvt. Ltd., challenged the transfer pricing adjustment made by the TPO and confirmed by the DRP. Initially, the TPO made an adjustment of Rs. 6,93,21,169/- which was later revised to Rs. 22,99,41,641/- after the Tribunal directed a fresh determination of the arm's length price (ALP). The A.O. proposed to assess the taxpayer at an income of Rs. 25,38,74,760/-. After objections from the taxpayer, the DRP directed the A.O. to complete the assessment as per its directions, resulting in a final assessed income of Rs. 8,61,79,070/-. The taxpayer's primary contention was against the transfer pricing adjustment, which included the provision of technical consultancy services and receivables.

2. Exclusion and Inclusion of Comparables:
The core dispute was the selection of comparables for determining the ALP. The taxpayer initially selected 9 comparables, out of which the TPO rejected 8 and selected 7 new comparables. The final set of comparables used by the TPO had an average margin of 32.47% compared to the taxpayer's -6.77%, leading to a significant addition. The taxpayer argued that the TPO did not consider its TP study and the detailed submissions provided. Specific objections were raised against the inclusion of IL & FS Transportation Networks Ltd. and RITES Ltd. as comparables due to their functional dissimilarity with the taxpayer's business. The Tribunal found merit in these objections, noting that IL & FS Transportation Networks Ltd. was involved in surface transport infrastructure projects, and RITES Ltd. was engaged in engineering consultancy, traffic studies, and export of locomotives, which were significantly different from the taxpayer's engineering design and drawing services. The Tribunal ordered the exclusion of these companies from the list of comparables.

3. Capital Utilization Adjustment and Risk Adjustment:
The taxpayer also sought adjustments for capital utilization and risk. The DRP denied these adjustments, stating that the data provided by the taxpayer was not reliable or robust enough to warrant such adjustments. The Tribunal found that the DRP and TPO had mechanically disposed of the objections without providing specific findings on the reliability of the data. The Tribunal emphasized that Rule 10B(3) read with Rule 10B(1)(e) requires appropriate adjustments to eliminate material differences between the international transaction and the comparable transaction. The Tribunal reversed the findings of the DRP/TPO on this issue and restored the file to the TPO for a fresh decision, directing them to pass a speaking order after providing an opportunity for the taxpayer to be heard.

Conclusion:
The appeal filed by the taxpayer was allowed for statistical purposes. The Tribunal ordered the exclusion of functionally dissimilar comparables and directed the TPO to reconsider the capital utilization and risk adjustments, providing a detailed and reasoned order after hearing the taxpayer. The decision underscores the importance of functional comparability and the need for robust and reliable data in transfer pricing assessments.