2016 (7) TMI 1409 - AT - Income Tax

Computation of deduction u/s 10A - Exclude telecommunication expenses from the total turnover as well as export turnover - Held that - There should be uniformity in the ingredients of both the numerator and the denominator of the formula Section 10-A is a beneficial section. It is intended to provide incentives to promote exports. If the export turnover in the numerator is to be arrived at after excluding certain expenses the same should also be excluded in computing the export turnover as a component of total turnover in the denominator. SEE ACIT vs. Tata Elxsi 2011 (8) TMI 782 - KARNATAKA HIGH COURT TPA - comparable selection criteria - Held that - Companies functionally dissimilar and not comparable with that of the software development company as that of assessee need to be deselected from final list.

Issues Involved:
1. Directions of the Dispute Resolution Panel (DRP) opposed to law and facts.
2. Exclusion of foreign currency expenditure from export and total turnover for Section 10A deduction.
3. Reliance on the Karnataka High Court decision in M/s Tata Elxsi Ltd.
4. Adjustment based on advance received from Associated Enterprises (AEs) for working capital cost.
5. Adjustment of profit margin for advances received from AEs.
6. Justification of the Transfer Pricing Officer's (TPO) approach.
7. Exclusion of certain companies as comparables.
8. Application of the onsite filter in the Software Development segment.
9. Directions amounting to setting aside an issue.

Detailed Analysis:

1. Directions of the Dispute Resolution Panel (DRP):
The revenue argued that the directions of the DRP were opposed to law and facts of the case. However, this issue was general in nature and did not require specific adjudication.

2. Exclusion of Foreign Currency Expenditure:
The DRP directed the Assessing Officer (AO) to exclude foreign currency expenditure from both export turnover and total turnover for Section 10A deduction. The revenue contended that the statute allows exclusion only from export turnover. The Tribunal upheld the DRP's direction, citing the Karnataka High Court's decision in ACIT vs. Tata Elxsi (349 ITR 98), which mandates uniformity in the ingredients of both the numerator and denominator of the formula to avoid anomalies.

3. Reliance on M/s Tata Elxsi Ltd. Decision:
The revenue argued that the DRP's reliance on the Tata Elxsi decision was erroneous as the decision was not final. The Tribunal dismissed this contention, affirming the DRP's reliance on the jurisdictional High Court's decision.

4. Adjustment Based on Advance Received from AEs:
The revenue questioned whether the DRP could make adjustments based on advances received from AEs in the absence of debtors and inventory for calculating working capital cost. The Tribunal found that the DRP merely directed a re-computation of margins after working capital adjustment, with no specific finding on the quantum of adjustment, rendering the revenue's grounds non-survivable.

5. Adjustment of Profit Margin for Advances Received from AEs:
The DRP directed the TPO to adjust the profit margin for the entire amount of advances received from AEs, considering the time value of money. The Tribunal upheld this direction, dismissing the revenue's grounds.

6. Justification of TPO's Approach:
The revenue argued that the DRP erred by not upholding the TPO's approach. The Tribunal found no merit in this contention and dismissed the grounds.

7. Exclusion of Certain Companies as Comparables:
The DRP excluded several companies from the list of comparables, including ICRA Techno Analytics Ltd., Persistent Systems & Solutions Ltd., Sasken Communication Technologies Ltd., Persistent Systems Ltd., Infosys Ltd., KALS Information Systems Ltd., and R S Software Ltd. The Tribunal upheld the DRP's exclusions based on functional dissimilarity, lack of segmental information, and other specific reasons, citing various precedents from coordinate benches.

8. Application of Onsite Filter:
The revenue challenged the application of the onsite filter in the software development segment. The Tribunal upheld the DRP's application of the filter, finding no error in the DRP's approach.

9. Directions Amounting to Setting Aside an Issue:
The revenue argued that the DRP's directions amounted to setting aside an issue. The Tribunal found no merit in this contention and dismissed the grounds.

Conclusion:
The Tribunal dismissed the revenue's appeal, upholding the DRP's directions and findings on all contested issues. The judgment emphasized adherence to established legal principles and precedents, particularly in the context of Section 10A deductions and transfer pricing adjustments.

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