2011 (3) TMI 530 - AT - Income Tax

Rectification of mistakes - assessee had initially included 15 comparable including this company i.e. 3 DPLM Software Ltd. having OP/TC rate of 44.34 per cent - Even if the percentage of RPT to total revenue is not 97 per cent but is more than 25 per cent even then this comparable cannot be considered as uncontrolled comparable and the same has to be excluded from the list of comparables finally selected by the TPO - assessee that remaining grounds of the assessee may not be adjudicated upon at this stage and may be left open because the assessee is sure that it will succeed on this issue alone that the RPT in the case of 3 DPLM Software Ltd. is very high and hence that comparable has to be excluded and if that is done then no transfer pricing adjustment is required and therefore the remaining issues are of academic interest only - assessee fails on that count then the assessee can raise these issues again before the Assessing Officer and the Assessing Officer should pass necessary order as per law in that situation - Appeal is allowed for statistical purpose

Summary

Issues:
Transfer pricing adjustment based on the inclusion of a comparable with high related party transactions.

Analysis:
The judgment involves an appeal against an order passed by the Assessing Officer under sections 154/143(3) read with section 144C of the Income-tax Act, 1961 for the assessment year 2005-06. The main issue raised in Ground No. 4.2 of the appeal pertains to the inclusion of a company, 3 DPLM Software, as a comparable for transfer pricing analysis. The appellant argued that this company should be excluded due to its significant related party transactions (RPT) of 97% of total revenue and a wages/sales ratio not comparable to the appellant's. The appellant relied on a Tribunal decision in a similar case to support their claim for exclusion.

The Tribunal considered both parties' submissions and found that the inclusion of 3 DPLM Software significantly impacted the average mean of the comparables selected by the Transfer Pricing Officer (TPO). Excluding this company would bring the average mean within plus minus 5% of the appellant's profit margin, eliminating the need for a transfer pricing adjustment. The Tribunal noted that if the RPT of 3 DPLM Software was indeed 97%, it would render the company as a controlled comparable, as per the Tribunal's precedent in a previous case. Therefore, the Tribunal directed the matter back to the Assessing Officer for a fresh decision after verifying the factual aspect of the appellant's claim regarding the RPT of 3 DPLM Software. The Tribunal emphasized that if the RPT exceeded 25% of total revenue, the company should be excluded from the list of comparables.

The Tribunal allowed the appeal for statistical purposes based on the exclusion of 3 DPLM Software. The appellant's counsel requested not to adjudicate on the remaining grounds at that stage, as success on the high RPT issue would negate the need for further analysis. The Tribunal agreed that if the appellant succeeded in excluding 3 DPLM Software, the other issues raised by the appellant would become academic. However, the Tribunal left open the option for the appellant to raise these issues again before the Assessing Officer if needed.

In conclusion, the Tribunal's judgment focused on the transfer pricing implications of including a comparable with high related party transactions. The decision highlights the importance of accurately assessing comparables in transfer pricing analysis to ensure a fair and appropriate adjustment, emphasizing the need for factual verification and adherence to legal precedents in such cases.