2015 (1) TMI 1155 - AT - Income Tax

Upward adjustment to the prices charged - international transactions namely rendering of IT enabled design engineering services to its associated enterprises - Held that - the assessee has placed reliance on the decision of ITAT, Pune in the case of Amdocs Business Services Private Limited 2012 (12) TMI 482 - ITAT PUNE wherein identical issue raised by the learned TPO that margins of comparable parties are to be adjusted and not of the tested party. The Tribunal in such a situation has upheld the validity of such an adjustment to the profits of the assessee. It was also claimed that the DRP has not adjudicated this issue. Nothing contrary has been brought to our knowledge on behalf of the Revenue. So, in the interest of justice, we restore this issue to the DRP with a direction to decide the same as per fact and law after providing an opportunity of being heard to the assessee. Selection of comparable - Held that - AO/TPO is directed to omit these three companies chosen, i.e. Rolta India, KLG and Powersoft by the TPO from the set of comparables for the year under consideration as Rolta India Ltd has huge turnover difference, Powersoft Global Solutions Ltd has financial year of the company differs by six months and KLG Systel Ltd is functionally not comparable, thus the matter is restored back to the TPO/AO who shall carry the search of comparables afresh in terms of criteria laid down in Rule 10B(2) of Income Tax Rules 1962 after giving an opportunity of being heard to the assessee. One of the comparables Caliber Point Business Solutions has related party transactions of 30% of Revenue and going by the threshold filter of 25% of the related party transactions the said comparable cannot be said to be uncontrolled comparable and ought to be excluded from the list of comparables. We direct the TPO/AO to exclude the said comparable from the list of comparables taken for the purpose of benchmarking for the said A.Y. 2008-09. - Decided in favor of assessee.

Summary

Issues Involved:
1. Upward adjustment of Rs. 38,41,754/- to the prices charged by the appellant in respect of international transactions.
2. Disallowance of revenue expenses of Rs. 2,20,03,000/- on Product Development as capital expenditure.
3. Comparability of external companies chosen by the TPO for benchmarking.
4. Exclusion of Caliber Point Business Solutions Ltd. from the set of comparables due to related party transactions.

Detailed Analysis:

1. Upward Adjustment of Rs. 38,41,754/-:
The assessee contested the upward adjustment of Rs. 38,41,754/- made by the Transfer Pricing Officer (TPO) to the prices charged for IT-enabled design engineering services provided to associated enterprises. The adjustment was due to the excess depreciation of Rs. 12.87 lakhs charged by the assessee following a change in its accounting policy. The TPO and the Dispute Resolution Panel (DRP) did not allow this adjustment, arguing that it should be made to the profit margins of comparables, not the assessee. The assessee cited Rule 10 B (1) (e) (iii) and previous ITAT rulings to support its stance. The tribunal restored the issue to the DRP for a decision as per the facts and law after providing an opportunity of being heard to the assessee.

2. Disallowance of Product Development Expenses:
The assessee challenged the disallowance of revenue expenses amounting to Rs. 2,20,03,000/- incurred on Product Development, which was treated as capital expenditure by the AO and DRP. The assessee argued that similar issues in previous years (A.Y. 2001-02, 2004-05, and 2005-06) were remitted back to the AO for verification. The tribunal, finding the facts similar, remitted the issue back to the AO to decide as per fact and law after providing an opportunity of being heard to the assessee.

3. Comparability of External Companies:
The TPO rejected the external comparables selected by the assessee and chose three new comparables: Rolta India Limited, KLG Systel Ltd., and Powersoft Global Solutions Ltd. The assessee argued that these companies did not satisfy the comparability criteria under Rule 10B (2) (b) due to differences in functions performed, risks assumed, and assets employed. The tribunal noted the significant differences in business models, scale of operations, and financial year data, and directed the AO/TPO to omit these companies from the set of comparables. The tribunal restored the matter back to the TPO/AO to search for comparables afresh as per Rule 10B (2) criteria.

4. Exclusion of Caliber Point Business Solutions Ltd.:
For A.Y. 2008-09, the assessee requested the exclusion of Caliber Point Business Solutions Ltd. from the set of comparables due to related party transactions amounting to 30% of its gross operating revenue. The tribunal, citing relevant case laws, agreed that companies with related party transactions exceeding 25% should be excluded. The tribunal directed the TPO/AO to exclude Caliber Point Business Solutions Ltd. from the list of comparables for A.Y. 2008-09.

Conclusion:
The appeals filed by the assessee were allowed as indicated, and the appeals filed by the Revenue were dismissed. The tribunal directed the relevant authorities to reassess the issues following the provided guidelines and after giving the assessee an opportunity to be heard. The judgment emphasized the importance of accurate comparability analysis and adherence to established transfer pricing regulations.