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2017 (11) TMI 1636 - AT - Income TaxTPA - Excluding the comparables selected - Held that - Assessee was engaged in the business of designing and development of chip, integrated circuits and storage components and allied services for its holding company AMCC, USA. Companies Comparable for design engineering segment should be selected as comparable to assessee. Claim of risk adjustment - Held that - We direct the Assessing Officer to allow risk adjustment and re-work the margins of comparables, in turn, relying on the ratio laid down by the Delhi Bench of Tribunal in the case of Sony India Pvt. Ltd. (2008 (9) TMI 420 - ITAT DELHI-H) and compute the TP adjustment, if any, in the hands of assessee. Setting off of unabsorbed depreciation before allowing deduction under section 10A of the Act - Held that - We direct the Assessing Officer to allow the deduction under section 10A of the Act before setting off of unabsorbed depreciation against the profits of eligible units. Thus, the ground of objection No.2.4 is allowed in favour of assessee.
Issues Involved:
1. Exclusion of comparables selected by the TPO. 2. Rejection of certain comparable companies considered by the assessee. 3. Risk adjustment for differences between functional and risk profiles. 4. Computation of arm's length price without granting the benefit of 5% under section 92C(2) of the Income Tax Act. 5. Setting off unabsorbed depreciation before allowing deduction under section 10A of the Act. Detailed Analysis: 1. Exclusion of Comparables Selected by the TPO: The Revenue's appeal contested the exclusion of Coral Hub Ltd. by the CIT(A) from the final list of comparables. The CIT(A) excluded Coral Hub Ltd. due to its different financial year and functional dissimilarities. The Tribunal upheld the CIT(A)'s decision, referencing the Hon'ble Bombay High Court's ruling in CIT Vs. PTC Software (I) Pvt. Ltd., which mandates that data for comparability analysis should be from the same financial year as the international transactions. Additionally, Coral Hub Ltd.'s lower employee cost indicated outsourcing, making it non-comparable, as supported by the Hon'ble Delhi High Court in Rampgreen Solutions Pvt. Ltd. Vs. CIT. 2. Rejection of Certain Comparable Companies Considered by the Assessee: The assessee's cross-objection challenged the exclusion of Cades Digitech Pvt. Ltd. The CIT(A) had rejected this company due to the unavailability of its annual report for the relevant year. However, the Tribunal found merit in the assessee's claim that relevant financial data was available in the subsequent year's annual report. It directed the TPO to include Cades Digitech Pvt. Ltd. as a comparable, referencing similar inclusions in other cases like Bechtel India Pvt. Ltd. Vs. DCIT. 3. Risk Adjustment for Differences Between Functional and Risk Profiles: The assessee argued for risk adjustment, claiming it was a risk-mitigated entity compared to the risk-bearing comparables. The Tribunal directed the Assessing Officer to allow risk adjustment and re-compute the margins of comparables, following the precedent set by the Pune Bench in MSC Software Corporation India Pvt. Ltd. Vs. ACIT and the Delhi Bench in Sony India Pvt. Ltd. 4. Computation of Arm's Length Price Without Granting the Benefit of 5%: The Tribunal dismissed the assessee's objection regarding the computation of the arm's length price without granting the benefit of +/- 5% under section 92C(2) of the Act, as this issue was already settled against the assessee. 5. Setting Off Unabsorbed Depreciation Before Allowing Deduction Under Section 10A: The assessee contended that deduction under section 10A should be allowed before setting off unabsorbed depreciation. The Tribunal agreed, referencing the Hon'ble Supreme Court's decision in CIT & Anr. Vs. Yokogawa India Ltd., which clarified that deduction under section 10A should be computed independently before applying provisions for set off and carry forward of losses. The Tribunal directed the Assessing Officer to follow this principle, thereby allowing the assessee's objection. Conclusion: The Tribunal dismissed the Revenue's appeal and allowed the assessee's cross-objections, providing detailed directions on the inclusion of comparables, risk adjustments, and the computation of deductions under section 10A. The decision emphasized adherence to established legal precedents and accurate financial year data for comparability analysis.
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