2016 (2) TMI 382 - AT - Income Tax

Transfer pricing adjustment - Capacity underutilization - Held that - Merely because the employee costs of the assessee are higher, it does, in our considered view, lead to the conclusion that there is an underutilization of capacity. It is also a matter of record, as noted by the assessee in the written submissions, that the underutilization is much more in the case of non AE transactions inasmuch as the employee costs to turnover ratio in AE segment is 76% whereas in non-AE segment it is 97% . There is no specific submission and quantification on the fact, if at all, of the underutilization of capacity. The factual elements embedded in the submissions are not at all established. There is no room for vague generalities and over simplifications, as the impact of underutilized capacity is to be, with reasonable precision, quantified and then only it can be adjusted. The exercise of quantifying the capacity underutilization has not been carried out at all. There is not even whisper of a discussion, on this aspect of the matter, in the orders of the authorities below or in the submissions of the assessee. In view of the above discussions, we are not inclined to uphold the assessee s grievance with respect to denial of adjustment for capacity underutilization. Inclusion of three comparables, namely (a) Crossdomain Solutions Ltd (b) Maple eSolutions, and (c) Vishal Information Tech Ltd. challenge by assessee - Held that - As evident from the working even if all the three comparables agitated by the assessee are excluded, the ALP adjustment worked out on the basis of the revised margin will be much more than the revenue realized from the non AE. Since, in terms of the DRP directions, the ALP of the international transactions is required to be restricted to the revenue realized from the non AE, i.e. ₹ 12,13,50,108, it is wholly academic whether the ALP on the basis of the comparables adopted by the assessee is ₹ 12,50,03,640, on the basis of comparables agreed to by the assessee, or is ₹ 13,46,20,929 as worked out by the TPO, on the basis of comparables adopted by him. In either of the situations, the ALP adjustment will be restricted to the difference between the transaction value (i.e. ₹ 10,39,29,814) and the revenue realized from the non AE (i.e. ₹ 12,13,50,108). The directions of the DRP having reached finality, so far as this approach adopted by the DRP is concerned, the assessee s present grievance on comparables is wholly academic and it does not call for any adjudication at this stage

Issues Involved:
1. Arm's Length Price (ALP) adjustment for international transactions.
2. Rejection of internal Transactional Net Margin Method (TNMM) by Transfer Pricing Officer (TPO).
3. Restriction of ALP adjustment to overall income earned by the Associated Enterprise (AE) from third parties.
4. Adjustment for higher employee costs due to underutilization of capacity.
5. Selection of comparables by TPO.

Issue-wise Detailed Analysis:

1. Arm's Length Price (ALP) Adjustment for International Transactions:
The appellant challenged the correctness of the ALP adjustment of Rs. 1,74,20,294 made by the Assessing Officer (AO) for the assessment year 2008-09. The appellant contended that the AO erred in making this adjustment to the value of international transactions with its AE.

2. Rejection of Internal Transactional Net Margin Method (TNMM) by TPO:
The appellant argued that the internal TNMM was incorrectly rejected by the TPO. The TPO's rejection was based on the view that the company undertook different functions and assumed different risks in AE and non-AE transactions. The Tribunal upheld the TPO's decision, stating that the internal TNMM was not the most appropriate method due to the availability and reliability of data. The Tribunal emphasized that the selection of the most appropriate method must consider the availability, coverage, and reliability of data necessary for its application.

3. Restriction of ALP Adjustment to Overall Income Earned by AE from Third Parties:
The appellant argued that the total ALP adjustment should be restricted to the overall income earned by the AE from third parties. The Tribunal noted that the AE sold the service to an independent enterprise at a price lower than the ALP determined by the TPO. The Tribunal found that the ALP adjustment should be restricted to the difference between the price at which the AE sold the service to the independent enterprise and the price at which the appellant sold the service to the AE. The Tribunal remitted the matter to the AO to re-examine this aspect in light of the decision in Global Vantedge, considering the functional profile of the AE and other related factors.

4. Adjustment for Higher Employee Costs Due to Underutilization of Capacity:
The appellant sought an adjustment for higher employee costs, arguing that the capacity was underutilized, resulting in higher employee costs as a percentage of revenues compared to comparable companies. The TPO rejected this adjustment, stating that the underutilization was only with respect to non-AE transactions. The Tribunal upheld the TPO's decision, noting that the appellant did not provide specific submissions or quantifications on the underutilization of capacity. The Tribunal emphasized that the impact of underutilized capacity must be quantified with reasonable precision before any adjustment can be made.

5. Selection of Comparables by TPO:
The appellant contested the selection of three comparables by the TPO: Crossdomain Solutions Ltd, Maple eSolutions, and Vishal Information Tech Ltd. The Tribunal found this grievance to be academic, as even if these comparables were excluded, the ALP adjustment would still be higher than the revenue realized from the non-AE. The Tribunal noted that the directions of the Dispute Resolution Panel (DRP) to restrict the ALP to the revenue realized from the non-AE had reached finality, making the appellant's grievance on comparables irrelevant at this stage.

Conclusion:
The Tribunal partly allowed the appeal for statistical purposes, remitting the matter to the AO for fresh adjudication on the issue of restricting the ALP adjustment to the overall income earned by the AE from third parties. The Tribunal upheld the TPO's rejection of the internal TNMM and the denial of adjustment for underutilization of capacity. The appellant's grievance regarding the selection of comparables was found to be academic and did not require adjudication.

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