2016 (6) TMI 1180 - AT - Income Tax

TPA - comparables selection - Held that - Assessee being characterised as a routine service provider companies functionally different and having two different segments IT and ITeS and that it has earned supernormal profits due to this similar nature of services need to be excluded. Foreign exchange gain/loss arising out of revenue transaction is required to be considered as an item of operating revenue/cost. Not allowing suitable adjustments on account of differences in the risk profile of the comparable vis-a-vis that of the assessee - Held that - As observed from the transfer pricing study the assessee functions in a low-risk or almost risk mitigated environment viz-a-viz enterprise a real risk borne by the comparables. The assessee is thus operating under economic circumstances that warrant adjustments to the margins made by the comparables so as to make the comparison between the margins earned by the comparable companies and the assessee appropriate we therefore are of the considered opinion that the entitlement of the assessee in respect of adjustments on account of differences in the risk profile of the assessee with that of the comparable cannot be denied. Disallowance of benefit under section 10A - AO had reduced the lease line charges from export turnover, however rejected the similar treatment while computing total turnover - Held that - The issue has been considered at length in favour of assessee in assessee s own case for assessment year 2007-08, 2008-09 and 2009-10. After considering the rival submissions and pursuing the relevant material on record we find force in the contentions advanced by the ld.AR, requiring the exclusion of lease line charges from total turnover as well.

Issues Involved:
1. Adjustment to total income in respect of international transactions.
2. Acceptance of economic analysis and determination of Arm's Length Price (ALP).
3. Aggregation of transactions for benchmarking.
4. Use of multiple year data.
5. Selection and rejection of comparable companies.
6. Treatment of foreign exchange gain/loss.
7. Computational errors in margins.
8. Treatment of operating and non-operating items.
9. Risk profile adjustments.
10. Deduction under section 10A.
11. Interest under section 234B.
12. Initiation of penalty proceedings under section 271(1)(c).

Detailed Analysis:

1. Adjustment to Total Income in Respect of International Transactions:
The assessee contested an adjustment of INR 35,171,538 to its total income concerning international transactions related to software development and back-office support services. The Tribunal examined the Transfer Pricing Officer's (TPO) and Dispute Resolution Panel's (DRP) decisions and found that the selection of comparables was the main issue. The Tribunal directed the exclusion of certain companies from the final list of comparables due to functional dissimilarities and lack of segmental information.

2. Acceptance of Economic Analysis and Determination of ALP:
The Tribunal upheld the TPO's rejection of the assessee's economic analysis and ALP determination, stating that the TPO's approach was reasonable. The Tribunal agreed with the TPO's use of single-year data instead of multiple-year data unless the assessee could demonstrate specific factors affecting the transfer price.

3. Aggregation of Transactions for Benchmarking:
The Tribunal dismissed the assessee's grievance regarding the aggregation of back-office support services with finance and accounting (F&A) support services for benchmarking. The Tribunal found no issue with the TPO's approach and dismissed this ground unanswered.

4. Use of Multiple Year Data:
The Tribunal agreed with the TPO's rejection of multiple-year data, emphasizing that comparables must relate to the same year as the year under consideration. This ground of appeal was dismissed.

5. Selection and Rejection of Comparable Companies:
The Tribunal addressed the selection and rejection of comparable companies in detail. It directed the exclusion of companies like E-Infochips Bangalore Ltd., Infinite Data Systems Pvt. Ltd., Thirdware Solutions Ltd., and Tata Elxsi Ltd. due to functional dissimilarities and lack of segmental information. Similarly, it directed the inclusion of companies like CG-VAK Software and Exports Ltd., R Systems International Ltd., Calibra Point Business Solutions Ltd., and Helios & Matheson Information Technology Ltd., rejecting the TPO's turnover and different financial year filters.

6. Treatment of Foreign Exchange Gain/Loss:
The Tribunal held that foreign exchange gain/loss arising from revenue transactions should be considered as an item of operating revenue/cost. This was based on the Tribunal's decision in the assessee's own case for the previous assessment year.

7. Computational Errors in Margins:
The Tribunal directed the Assessing Officer (AO) to follow the DRP's directions and rectify computational errors in the margins of the assessee and comparable companies.

8. Treatment of Operating and Non-Operating Items:
The Tribunal addressed this issue in conjunction with the treatment of foreign exchange gain/loss, holding that such gains/losses should be treated as operating items.

9. Risk Profile Adjustments:
The Tribunal acknowledged the assessee's low-risk environment and directed suitable adjustments to the margins of comparables to account for differences in risk profiles.

10. Deduction Under Section 10A:
The Tribunal allowed the assessee's claim for deduction under section 10A, directing the AO to exclude lease line charges from both export turnover and total turnover, maintaining parity between the numerator and denominator.

11. Interest Under Section 234B:
The Tribunal noted that interest under section 234B is consequential in nature and did not provide a specific ruling on this ground.

12. Initiation of Penalty Proceedings Under Section 271(1)(c):
The Tribunal considered the initiation of penalty proceedings premature and did not address this ground.

Conclusion:
The appeal filed by the assessee was disposed of, with the Tribunal providing detailed directions on the selection and rejection of comparables, treatment of foreign exchange gains/losses, and adjustments for risk profiles, among other issues. The Tribunal upheld the assessee's claim for deduction under section 10A and directed rectification of computational errors by the AO.

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