2016 (7) TMI 1359 - AT - Income Tax

TPO - selection of comparable - selection criteria - Held that - Type of work being done by the assessee captured would show that assessing was also doing analysis of results, testing and calibration etc.. It had to use market intelligence, maintain e-tools and provide reporting analytics. In our opinion the level of expertise being used by the assessee in its technology enabled services,thus companies functionally dissimilar with that of assessee need to be deselected from final list of comparability. In the result, we direct exclusion of Accentia Technologies Ltd, Acropetal Technologies Ltd, (seg) from the list of comparables, whereas we uphold the inclusion of ICRA Online Ltd, (seg) in the list of comparables. However, viz., Jeevan Scientific Technologies Ltd, (seg), we are remitting the issue of its fitness for comparison back to the AO/TPO for considering the turnover of the BPO segment of the said company. Ordered accordingly. Inclusion of foreign exchange gains/losses as operating in nature - Held that - It is clear from the order that DRP had directed the AO/TPO to consider foreign exchange gains/losses in respect of assessee as well as the comparables as operating in nature for the TP analysis. Since Revenue is not in appeal on the above directions of the DRP, we are of the opinion that the AO/TPO has no option but to follow the directions of the DRP.

Issues Involved:
1. Transfer Pricing Adjustments.
2. Exclusion of Comparable Companies.
3. Errors in Computing Operating Margin.
4. Inclusion of Foreign Exchange Gains/Losses as Operating in Nature.

Detailed Analysis:

1. Transfer Pricing Adjustments:
The primary issue in this appeal concerns the transfer pricing adjustments recommended by the Assessing Officer (AO) and confirmed by the Dispute Resolution Panel (DRP). The assessee, engaged in IT-enabled back-office services, had computed its Profit Level Indicator (PLI) using the Transactional Net Margin Method (TNMM). The Transfer Pricing Officer (TPO) accepted four of the assessee's comparables and added six more, resulting in a final list of ten comparables. The TPO recommended a final adjustment of ?690,32,747 under Section 92CA of the Income-tax Act, 1961.

2. Exclusion of Comparable Companies:
The assessee sought the exclusion of four companies from the list of comparables: Accentia Technologies Ltd, Acropetal Technologies (seg), ICRA Online Ltd (seg), and Jeevan Scientific Technology Ltd (seg).

Accentia Technologies Ltd:
The assessee argued that Accentia Technologies Ltd had undergone inorganic growth and engaged in high-end medical transcription services, which were not comparable to the low-end services provided by the assessee. The Tribunal agreed, noting that Accentia's services were of a high-end variety and involved significant coding and medical transcription activities, which were not comparable to the assessee's insurance-related services. The Tribunal directed the exclusion of Accentia Technologies Ltd from the list of comparables.

Acropetal Technologies Ltd (seg):
The assessee contended that Acropetal Technologies Ltd was involved in engineering design services, which were not comparable to the assessee's ITES services. The Tribunal concurred, stating that the engineering design services provided by Acropetal were not comparable to the back-office support services rendered by the assessee. The Tribunal directed the exclusion of Acropetal Technologies Ltd (seg) from the list of comparables.

ICRA Online Ltd (seg):
The assessee argued that ICRA Online Ltd was engaged in knowledge process outsourcing (KPO) services, which required a higher level of expertise compared to the assessee's low-end ITES services. The Tribunal, however, found that the level of expertise used by ICRA Online Ltd was reasonably comparable to that of the assessee. The Tribunal upheld the inclusion of ICRA Online Ltd (seg) in the list of comparables.

Jeevan Scientific Technology Ltd (seg):
The assessee pointed out that the turnover of the BPO segment of Jeevan Scientific Technology Ltd was less than ?1 crore, which should have led to its exclusion based on the TPO's own criteria. The Tribunal remitted the issue back to the AO/TPO for fresh consideration, directing that if the turnover of the BPO segment was indeed less than ?1 crore, the company should be excluded from the list of comparables.

3. Errors in Computing Operating Margin:
The assessee sought corrections in the computation of the operating margin of the comparables. The Tribunal directed the AO/TPO to rework the PLI of the comparables after including the foreign exchange gain/loss, as directed by the DRP.

4. Inclusion of Foreign Exchange Gains/Losses as Operating in Nature:
The DRP had directed the AO/TPO to consider foreign exchange gains/losses as operating in nature for the TP analysis. The Tribunal upheld this direction, noting that the Revenue had not appealed against it and, therefore, the AO/TPO had no option but to follow the DRP's directions.

Conclusion:
The appeal was partly allowed for statistical purposes, with specific directions for the exclusion of certain comparables and the inclusion of foreign exchange gains/losses as operating in nature. The AO/TPO was directed to rework the PLI of the comparables accordingly.

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