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2016 (6) TMI 1253 - AT - Income TaxTPA - selection criteria for comparable - Held that - The international transactions entered into by the assessee was in respect of data processing rendered to its AE. The assessee has benchmarked the international transaction of data processing, using Cost Plus Method (CPM) as the most appropriate method (MAM) to arrive at Arm s Length Price (ALP). Thus companies functionally dissimilar with that of assessee need to be deselected from final list of comparable. Addition under section 14A read with Rule 8D - Held that - Tribunal in assessee s own case for assessment year 2008-09 has held A.O. has not recorded satisfaction as required by law, before invoking section 14A. It has not been pointed out by the A.O. as to how the computation of disallowance u/s 14A done by the assessee was not correct. No error or defect has been pointed out. Under these circumstances, we have to apply the proposition laid down by the jurisdictional High Court in the case of Maxopp Investments Ltd. 2011 (11) TMI 267 - Delhi High Court and delete the addition made by the A.O.
Issues Involved:
1. Adjustment of ?6,93,66,342/- to the income on account of difference in Arm's Length Price (ALP) for transactions with Associated Enterprises (AEs). 2. Non-consideration of the Dispute Resolution Panel (DRP) directions in the assessment order. 3. Selection of comparable companies by the Transfer Pricing Officer (TPO) and DRP. 4. Treatment of foreign exchange gain as a non-operating item. 5. Application of turnover filter for comparable companies. 6. Computation of ALP using total cost instead of operating cost. 7. Rejection of the most appropriate method applied by the assessee. 8. Addition of ?3,51,102/- under Section 14A of the Income Tax Act, 1961. Issue-wise Detailed Analysis: 1. Adjustment of ?6,93,66,342/- to the income on account of difference in Arm's Length Price (ALP) for transactions with Associated Enterprises (AEs): The assessee contested the adjustment made by the TPO, arguing that the selection of comparable companies was inappropriate. The TPO had included companies like Accentia Technologies Ltd., Cosmic Global Ltd., Crossdomain Solutions Pvt. Ltd., Infosys BPO, and e-Clerx Services Ltd., which the assessee claimed were not functionally comparable. The tribunal examined each company's functional profile and concluded that Accentia Technologies and Cosmic Global were not comparable due to their involvement in software products and high-end KPO services, respectively. Crossdomain Solutions was excluded for providing niche services and owning a brand, Infosys BPO was excluded due to high turnover, and e-Clerx Services was excluded for providing high-end services. The tribunal directed the TPO to exclude these companies from the list of comparables. 2. Non-consideration of the Dispute Resolution Panel (DRP) directions in the assessment order: The assessee argued that the assessment order was null and void as it did not give effect to the DRP's directions. The tribunal did not specifically address this issue but focused on the appropriateness of the comparables selected by the TPO and DRP. 3. Selection of comparable companies by the Transfer Pricing Officer (TPO) and DRP: The tribunal scrutinized the comparables selected by the TPO and DRP. It directed the inclusion of Aditya Birla Minacs Worldwide Ltd. as it was not objected to by the assessee. The tribunal excluded Accentia Technologies, Cosmic Global, Crossdomain Solutions, Infosys BPO, and e-Clerx Services based on functional dissimilarity. It also directed the TPO to include Allsec Technologies Ltd. and reconsider Suntec Web Services Pvt. Ltd. after due verification. 4. Treatment of foreign exchange gain as a non-operating item: This issue was not specifically addressed in the tribunal's order. 5. Application of turnover filter for comparable companies: The tribunal did not specifically address the turnover filter issue but excluded companies like Infosys BPO due to high turnover, following the precedent set by the Delhi High Court in the case of CIT vs. Agnity India Technologies Pvt. Ltd. 6. Computation of ALP using total cost instead of operating cost: This issue was not specifically addressed in the tribunal's order. 7. Rejection of the most appropriate method applied by the assessee: The tribunal noted that the assessee did not seriously dispute the Transactional Net Margin Method (TNMM) as the most appropriate method. The dispute primarily revolved around the selection of comparables. 8. Addition of ?3,51,102/- under Section 14A of the Income Tax Act, 1961: The assessee challenged the addition made under Section 14A, arguing that the AO did not record satisfaction before invoking Rule 8D and included investments that did not earn exempt income. The tribunal observed that the AO failed to record satisfaction and did not justify the rejection of the assessee's suo motu disallowance. Following the precedent set in the assessee's own case for the assessment year 2008-09, the tribunal deleted the addition made under Section 14A. Conclusion: The tribunal partly allowed the appeal filed by the assessee, directing the TPO to exclude certain companies from the list of comparables and include others after due verification. The addition made under Section 14A was deleted due to the AO's failure to record satisfaction and justify the rejection of the assessee's disallowance.
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