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2013 (9) TMI 444 - AT - Income TaxTransfer pricing adjustment - Method of computation of operating profit - Rejection of comparables - Held that - TPO has totally rejected the assessee s claim on this account, the CIT (A) has allowed a deduction of 1% by accepting the fact that the assessee might be facing certain utilisation problems in its new unit and unutilised capacity might have adversely affected the overall profit for the year. However, the CIT (A) has given no reason as to why he considers 1% margin to be appropriate and on what basis he has adopted such margin. When it is accepted that assessee s overall profit is adversely affected due to idle capacities and idle facilities then the entire issue requires to be considered properly and in an objective manner taking into account all the datas available in this regard. Therefore, considering the facts and the circumstances of this case, we remit this issue to the file of the Assessing Officer who shall consider the assessee s claim with regard to idle capacities after due consideration of all materials available on record and affording a reasonable opportunity of being heard to the assessee - Decided in favour of assessee.
Issues Involved:
1. Selection/Rejection of Comparables. 2. Adjustment on Account of Idle Capacity. 3. Admission of Additional Grounds by the Department. 4. Allowance of Depreciation on Computer Peripherals and Electrical Items. Detailed Analysis: 1. Selection/Rejection of Comparables: Vishal Information Technologies Ltd.: The assessee objected to the inclusion of Vishal Information Technologies Ltd. as a comparable, arguing that the data was not publicly available within the prescribed time and that the company was functionally dissimilar due to its low employee cost percentage. The Tribunal accepted the assessee's contention, noting that the company had outsourced major portions of its work, thus making it non-comparable. The Tribunal directed the Assessing Officer to exclude Vishal Information Technologies Ltd. from the list of comparables. Wipro BPO Solutions Ltd.: The assessee contended that Wipro BPO Solutions Ltd. should not be considered a comparable due to its substantial related party transactions and differences in depreciation. The Tribunal found merit in the assessee's argument regarding related party transactions and the impact of depreciation on comparability. The issue was remitted to the Assessing Officer/TPO to reconsider the selection of Wipro BPO Solutions Ltd. as a comparable, taking into account the assessee's objections and the ratio laid down in previous cases. MCS Ltd.: The CIT (A) had excluded MCS Ltd. based on its low profit margins, relying on a generalized industry study. The Tribunal found this exclusion unjustified, noting that the TPO had selected MCS Ltd. after a detailed analysis and the assessee had not objected to its inclusion. The Tribunal restored the matter to the Assessing Officer/TPO to re-examine the functionality of MCS Ltd. and decide its acceptability as a comparable. Alternative Submission on PBDIT: The assessee proposed that if adjustments were necessary, they should be based on the average PBDIT of Wipro BPO and MCS Ltd., which was higher than the assessee's PBDIT. The Tribunal directed the Assessing Officer to consider this aspect while deciding the acceptability of the comparables. 2. Adjustment on Account of Idle Capacity: The assessee claimed an adjustment for idle capacity, which was rejected by the TPO but partially allowed by the CIT (A). The Tribunal noted that the CIT (A) had allowed a 1% deduction without providing a clear basis. The issue was remitted to the Assessing Officer to reconsider the adjustment for idle capacity, taking into account all available data and providing the assessee a reasonable opportunity to be heard. 3. Admission of Additional Grounds by the Department: The department sought to introduce additional grounds related to transfer pricing adjustments. The Tribunal declined to admit these additional grounds, noting that they were factual issues requiring fresh facts and were raised belatedly without a valid reason. The Tribunal emphasized its discretion in allowing new grounds and found no justification for admitting the additional grounds raised by the department. 4. Allowance of Depreciation on Computer Peripherals and Electrical Items: The Assessing Officer had restricted depreciation on electrical fittings and computer peripherals, which was partially overturned by the CIT (A). The Tribunal upheld the CIT (A)'s decision, agreeing that items like air conditioners and computer peripherals such as printers, scanners, and modems should receive higher depreciation rates, while other items like racks and switches should not. The Tribunal found no infirmity in the CIT (A)'s order and confirmed it. Conclusion: - The assessee's appeal was partly allowed, with directions to re-examine certain comparables and idle capacity adjustments. - The department's appeal was dismissed, and additional grounds were not admitted. - The cross-objection by the assessee regarding depreciation was dismissed as infructuous. - The Tribunal's decision was pronounced in open court on 28-06-2013.
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