2016 (7) TMI 1406 - AT - Income Tax

Computation of deduction u/s. 10A - Exclude the reimbursement of expenses incurred in foreign currency both from the export turnover as well as from total turnover - Held that - We find that it was held in the Tata Elxsi Ltd. case 2011 (8) TMI 782 - KARNATAKA HIGH COURT that if an amount is reduced from the export turnover the same amount has to be reduced from the total turnover also because the total turnover is nothing but sum total of export turnover and domestic turnover. Respectfully following this judgment we decline to interfere with the order of the ld. CIT(A) on this issue. Accordingly ground No. 2 of the revenue is rejected. Comparability selection criteria - Held that - Certain companies should be excluded from the list of comparables merely on the basis of abnormal profits and losses is not sustainable. Although the same company may be excluded if such exclusion is proper because of other reasons such a functional dissimilarities etc. but we find that as per the order of the ld. CIT(A) the is no discussion about some of the comparable companies on the basis of other aspects such as functional dissimilarity etc. and in the absence of any finding of the ld. CIT(A) on these aspects we do not consider it proper to examine and decide these aspects in the absence of any finding on these aspects. In our considered opinion the matter should go back to the file of the ld. CIT(A) for his decision on these aspects. We hold accordingly and set aside the order of the ld. CIT(A) and restore back this issue to his file for fresh decision for exclusion of these companies which are objected to by the revenue in ground No. 3 in the light of various arguments of the assessee on the basis of functional dissimilarities etc. Cogent reasoning by CIT-A for rejecting the diminishing revenue filter used by the TPO and therefore on this issue we find no reason to interfere with the order of the ld. CIT(A). Even if the accounting year of the comparable is not financial year but the accounting year of the comparable company is closing within six months time frame then such company can be considered as comparable - Held that - If the assessee or TPO wants that such company should be considered as a comparable then the assessee/TPO should be able to provide the data of the same company for the same financial year by adding the data of two years and then making exclusion of preceding period data and subsequent period data and hence we feel it proper to set aside this matter back to the file of ld. CIT(A) for a fresh decision and if the assessee can furnish data of such comparable for the relevant financial year then such company may be considered as a comparable and not without that. Ld. CIT(A) should pass necessary order as per law after providing reasonable opportunity of being heard to both sides. Ground is allowed for statistical purposes. Companies functionally dissimilar with that of assessee need to be deselected from final list of comparability.

Issues Involved:
1. Exclusion of reimbursement of expenses from export turnover and total turnover for deduction u/s. 10A.
2. Inclusion/exclusion of certain companies as comparables for Transfer Pricing.
3. Application of employee cost filter by TPO.
4. Use of diminishing revenue filter by TPO.
5. Application of different year ending filter by TPO.
6. Functional dissimilarity of certain companies as comparables.
7. Use of related party transactions (RPT) filter.
8. Use of export sales and onsite revenue filters.
9. Rejection of companies not functionally comparable in various segments.

Detailed Analysis:

1. Exclusion of Reimbursement of Expenses:
The revenue's appeal contested the CIT(A)'s direction to exclude reimbursement of expenses incurred in foreign currency from both export turnover and total turnover for the purpose of computing deduction u/s. 10A. This issue was agreed by both parties to be covered by the judgment of the Karnataka High Court in the case of M/s. Tata Elxsi Ltd., which held that if an amount is reduced from the export turnover, the same must be reduced from the total turnover. The Tribunal followed this judgment and rejected the revenue's ground.

2. Inclusion/Exclusion of Certain Companies as Comparables:
The revenue challenged the exclusion of certain companies from the final set of comparables based on abnormal profits and losses. The CIT(A) had excluded these companies citing Tribunal decisions in Sony India Pvt. Ltd. and E-Gain Communication Pvt. Ltd. However, the Tribunal referred to the Delhi High Court judgment in M/s. Chryscapital Investment Advisors (Ind.) Pvt. Ltd., which stated that companies should not be excluded merely due to peculiar features like huge profits or turnover. The Tribunal remanded the issue back to the CIT(A) for fresh decision based on functional dissimilarities.

3. Application of Employee Cost Filter:
The revenue contested the CIT(A)'s direction to include M/s. Indus Networks Ltd. in the comparables list, which was excluded by the TPO using the employee cost filter. The assessee had no objection to this company being included as a comparable. The Tribunal decided in favor of the revenue, allowing this ground.

4. Use of Diminishing Revenue Filter:
The revenue challenged the CIT(A)'s rejection of the diminishing revenue filter used by the TPO. The CIT(A) argued that such filters depend on trends over time and are contrary to the TPO's stance of using only current year's data. The Tribunal found the CIT(A)'s reasoning cogent and upheld the CIT(A)'s order, rejecting the revenue's ground.

5. Application of Different Year Ending Filter:
The revenue disputed the CIT(A)'s rejection of the different year ending filter used by the TPO. The CIT(A) held that functionally similar companies with different financial year endings within a six-month frame should be considered comparable. The Tribunal remanded the issue back to the CIT(A) for fresh decision, allowing the assessee to provide data for the relevant financial year.

6. Functional Dissimilarity of Certain Companies:
The revenue contested the exclusion of companies like M/s. Avani Cincom Technologies Ltd., M/s. Celestial Biolabs Ltd., and M/s. Kals Information Systems Ltd. The Tribunal referred to its previous decision in 3DPLM Software Solutions Pvt. Ltd., which found these companies functionally dissimilar to the assessee. The Tribunal upheld the CIT(A)'s order, rejecting the revenue's grounds.

7. Use of Related Party Transactions (RPT) Filter:
The CIT(A) upheld the TPO's approach of using an RPT filter greater than 25% for exclusion of comparables instead of the 15% filter applied by the assessee. This issue was not separately adjudicated in the Tribunal's order.

8. Use of Export Sales and Onsite Revenue Filters:
The CIT(A) upheld the TPO's approach of using the export sales greater than 25% of revenues filter and the onsite revenue greater than 75% filter for exclusion of comparables. This issue was not separately adjudicated in the Tribunal's order.

9. Rejection of Companies Not Functionally Comparable:
The revenue contested the exclusion of M/s. Accentia Technologies Ltd. and M/s. Genesys International Corpn. Ltd. The Tribunal referred to previous decisions which held these companies not comparable due to extraordinary events like mergers and functional dissimilarities. The Tribunal upheld the CIT(A)'s order, rejecting the revenue's grounds.

Conclusion:
The appeal of the revenue was partly allowed for statistical purposes, remanding certain issues back to the CIT(A) for fresh decision. The cross objection of the assessee was dismissed.

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