2015 (6) TMI 527 - AT - Income Tax

Transfer pricing adjustment - Information Technology enabled services (ITES) segment - selection of comparable - Held that - Coral Hub Ltd. is not a suitable comparable were ITES segment of the assessee company. outsourcing charges of this company constitute 90% of the total operative cost, therefore, the same is functionally different from the present assessee. In the present case, neither the TPO nor the DRP has brought out any fact or evidence to establish that the present assessee is also earning income from outsourcing charges, hence, we are inclined to hold that the present assessee undertook ITES segmental activities, during the period under consideration, at its own without any outsourcing. Therefore, we are of the considered opinion that the outsourcing charges, which constitutes more than 90% of the total operating cost of the Coral Hub Ltd., is a very important factor and the same having greater bearing on the profitability of the comparable. In this situation, the Coral Hub Ltd. cannot be considered as a suitable comparable for benchmarking of International transactions of the assessee in ITES segmental activities, because the factum of heavy outsourcing activity carried out by this company looses the tag of suitable comparability. Eclerx Services Ltd. deserve to be deleted from the final set of comparables. Apparently, this company provides tailored process outsourcing and management services in addition to multitude of the data aggregation, and mining and maintenance services from vigilant reading of annual report available at Page 659 to 738 of the assessee paper book Volume-II, it can be easily seen that it is not closed to the assessee ITES segmental services transaction which are impressed by the manual process ITES services. It is not a suitable comparable to the assessee company for AY 2008-09 due to high pitched financial result and the same deserve to be deleted from the final set of comparables. Cosmic Global Ltd. is functionally dissimilar to the present assessee and Cosmic Global Ltd. is not a suitable comparable to the present assessee for benchmarking and determining the arm s length price (ALP) of present assessee ITES segmental International transactions for AY 2008- 09. Accordingly, we hold that Cosmic Global Ltd. was wrongly included in the final set of comparables which deserves to be deleted.

Issues Involved:
1. Adjustment in Arm's Length Price (ALP) for IT Enabled Services (ITES).
2. Rejection of economic analysis by the appellant.
3. Use of FY 2007-08 data for determining ALP.
4. Selection of comparables by the Transfer Pricing Officer (TPO).
5. Adjustments for differences in working capital and risk profile.
6. Penalty proceedings under Section 271(1)(c) of the Income Tax Act.

Issue-wise Detailed Analysis:

1. Adjustment in Arm's Length Price (ALP) for IT Enabled Services (ITES):
The assessee challenged the addition of Rs. 2,34,97,662 to its total income on account of adjustment in the ALP for ITES transactions with its associated enterprise. The TPO and AO determined the ALP using FY 2007-08 data, which was not entirely available to the assessee at the time of documentation. The dispute centered on the comparables selected by the TPO, which included Coral Hub Ltd., Eclerx Services Ltd., and Cosmic Global Ltd.

2. Rejection of Economic Analysis by the Appellant:
The TPO and AO did not accept the economic analysis undertaken by the assessee, which was conducted in accordance with the provisions of the Act and Rules. Instead, they conducted a fresh economic analysis to determine the ALP, concluding that the appellant's international transactions were not at arm's length.

3. Use of FY 2007-08 Data for Determining ALP:
The TPO and AO used only FY 2007-08 data to determine the arm's length margin/price, which was not fully available to the assessee at the time of complying with transfer pricing documentation requirements. This approach was contested by the assessee.

4. Selection of Comparables by the Transfer Pricing Officer (TPO):
The main contention of the assessee was the inappropriate selection of comparables by the TPO. The assessee argued that Coral Hub Ltd., Eclerx Services Ltd., and Cosmic Global Ltd. were not suitable comparables for benchmarking its ITES transactions. The Tribunal examined each comparable in detail:

Coral Hub Ltd.:
The Tribunal noted that Coral Hub Ltd. had significant outsourcing activities, constituting 86% of its total operating expenses, and only 4.4% employee cost, making it functionally different from the assessee. The Tribunal relied on previous decisions, including the ITAT Mumbai Bench in ACIT vs. Maersk Global Service Centre (India) Pvt. Ltd., to exclude Coral Hub Ltd. from the list of comparables.

Eclerx Services Ltd.:
Eclerx Services Ltd. was engaged in providing high-end services involving special knowledge, which differed significantly from the assessee's ITES segment. The Tribunal observed that mergers/demergers in Eclerx Services Ltd. led to exceptional financial results, making it unfit for comparison. The Tribunal followed the decision in United Health Group Information Services Pvt. Ltd. vs. ACIT to exclude Eclerx Services Ltd. from the list of comparables.

Cosmic Global Ltd.:
Cosmic Global Ltd.'s major revenue source was translation charges, with only a minuscule share from medical transcription and consultancy services, making it functionally dissimilar to the assessee. The Tribunal, relying on the decision in United Health Group Information Services Pvt. Ltd. vs. ACIT, excluded Cosmic Global Ltd. from the list of comparables.

5. Adjustments for Differences in Working Capital and Risk Profile:
The assessee argued that suitable adjustments were not made to account for differences in working capital and risk profile vis-`a-vis the comparables. This issue was linked to the broader contention regarding the selection of appropriate comparables.

6. Penalty Proceedings under Section 271(1)(c) of the Income Tax Act:
The assessee also contested the initiation of penalty proceedings under Section 271(1)(c) of the Act. However, this issue was not elaborately argued during the proceedings.

Conclusion:
The Tribunal concluded that Coral Hub Ltd., Eclerx Services Ltd., and Cosmic Global Ltd. were not suitable comparables for the assessee's ITES segment. The Tribunal directed the deletion of these comparables from the final set and ordered a fresh computation of the ALP for the ITES segmental international transactions for AY 2008-09. The appeal of the assessee was allowed for statistical purposes.

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