2015 (1) TMI 1335 - AT - Income Tax

TPA - determination of ALP - selection of comparable - Held that - Assessee is an IT solution company that provides software development service in the areas of ERP solutions design, implementation & maintenance and Internet technology solutions to its customers. The company has a hundred percent Export Oriented Undertaking (EOU) registered with the software Technology Parks of India STIP , thus companies functionally dissimilar with that of assessee need to be deselected from final list of comparable.

Summary

Issues Involved:
1. Internal TNMM vs. External TNMM.
2. Selection of Comparables.
3. Inclusion of Comparables Selected by Assessee.
4. Working Capital Adjustment.
5. Adjustment Not to Include Non-A.E. Transactions.

Detailed Analysis:

1. Internal TNMM Analysis:
The assessee argued that internal TNMM should be considered before external TNMM, citing various case laws. However, the Tribunal noted that the assessee had not raised this issue before the TPO or DRP and had not provided any segmental profits or requisite data for internal TNMM. Consequently, the Tribunal refused to entertain this additional ground, deciding against the assessee.

2. Selection of Comparables:
The assessee objected to the inclusion of eight companies as comparables, arguing they were functionally different. The Tribunal reviewed the objections and the decisions of various Coordinate Benches, concluding that the following companies should be excluded from the list of comparables:
- Avani Cincom Technologies Ltd.
- Bodhtree Consulting Ltd.
- E-Zest Solutions Ltd.
- Infosys Technologies Ltd.
- KALS Information Systems Ltd.
- Tata Elxsi Ltd.
- Thirdware Solutions Ltd.
- Wipro Ltd.

The Tribunal found that these companies were either functionally dissimilar or had other issues such as lack of segmental data.

3. Comparables Selected by Assessee:
The assessee requested the inclusion of four companies as comparables. The Tribunal noted that these companies had been considered and rejected by the TPO with detailed reasons. Therefore, the Tribunal agreed with the TPO's findings and rejected the assessee's request to include these companies in the comparability analysis.

4. Working Capital Adjustment:
The assessee contested the TPO's negative working capital adjustment. The Tribunal directed the TPO to re-work the adjustment after excluding certain comparables and considering the assessee's work profile and comparable companies' working results. The Tribunal emphasized that the TPO should consider the assessee's status as a captive service provider and its internal TNMM while re-evaluating the working capital risk.

5. Adjustment Not to Include Non-A.E. Transactions:
The assessee objected to the TPO's inclusion of the entire turnover, including non-A.E. transactions, in the TP adjustment. The DRP had mixed its findings on this issue with the reimbursement issue. The Tribunal directed the A.O. to exclude non-A.E. transactions from the TP adjustment and restrict it only to A.E. transactions. This direction was based on the DRP's observations and relevant case law.

Conclusion:
The appeal was partly allowed for statistical purposes, with specific directions for re-evaluation on certain issues. The Tribunal's decision provided a detailed analysis of each issue, ensuring that the adjustments were made accurately and in compliance with the legal principles.