2017 (5) TMI 1563 - AT - Income Tax

Transfer pricing addition - comparable selection criteria - functional similarity - Held that - Assessee is a resident company engaged in the business of providing IT enabled services such as data processing, customization of electronic data, back-office operations and acting as a support centre to provide research, analysis and information to various McKinsey and other corporate entities across the globe,thus companies functionally dissimilar with that of assessee need to be deselected from final list. Whether gains losses arising out of foreign exchange fluctuation while computing operating margins of the comparable companies shall be considered as part of operating profit or losses? - Held that - As decided in assessee s own case foreign exchange gain or loss shall form the part of the operating margin of the assessee. Inter company receivable arising from the provisions of research and information services - whether constitute a separate international transactions under provisions of section 92B? - Held that - As discussed earlier, this issue is squarely covered against the assessee in its own case for assessment year 11 12 2017 (5) TMI 830 - ITAT DELHI Intercompany receivables arising from provision of services do constitute a separate international transaction under section 92B of the act.

Issues Involved:
1. Addition to total income in respect of international transactions.
2. Economic analysis and determination of arm's length price (ALP).
3. Comparability analysis and selection/rejection of comparable companies.
4. Use of multiple year data and financial year data.
5. Treatment of gains/losses from foreign exchange fluctuations.
6. Treatment of operating and non-operating items.
7. Adjustments for working capital and risk profile differences.
8. Classification of inter-company receivables as international transactions.
9. Initiation of penalty proceedings under section 271(1)(c).
10. Levy of interest under section 234D.

Detailed Analysis:

1. Addition to Total Income in Respect of International Transactions:
The appellant contested the addition of INR 126,607,828 to its total income for international transactions related to the provision of research and information services and notional interest on inter-company receivables. The Transfer Pricing Officer (TPO) had proposed this adjustment, which was confirmed by the Dispute Resolution Panel (DRP).

2. Economic Analysis and Determination of ALP:
The appellant argued that the TPO, AO, and DRP erred in not accepting the economic analysis undertaken by the appellant in accordance with the provisions of the Act and the Income-tax Rules. The TPO modified the economic analysis and determined the ALP, which led to the proposed adjustment.

3. Comparability Analysis and Selection/Rejection of Comparable Companies:
The appellant raised multiple grounds concerning the selection and rejection of comparable companies. Specifically, the appellant objected to the inclusion of Aditya Birla Capital Advisors Private Limited, Axis Private Equity Limited, and Credit Information Bureau (India) Limited, arguing that these companies were functionally dissimilar. The Tribunal directed the exclusion of these companies based on their functions and risk profiles, which were not comparable to the appellant's services.

4. Use of Multiple Year Data and Financial Year Data:
The appellant contended that the TPO, AO, and DRP erred in not accepting the use of multiple-year data and instead used data pertaining only to the financial year 2011-12, which was not available to the appellant at the time of complying with the Indian TP documentation requirements.

5. Treatment of Gains/Losses from Foreign Exchange Fluctuations:
The appellant argued that gains/losses arising from foreign exchange fluctuations should be considered as part of operating profit or losses while computing the operating margins of comparable companies. The Tribunal upheld this view, citing previous decisions that foreign exchange gains/losses related to trading transactions should be included in operating revenue/costs.

6. Treatment of Operating and Non-Operating Items:
The appellant raised issues regarding the treatment of operating and non-operating items while computing margins. The Tribunal noted computational errors in the margins of comparable companies and directed corrections accordingly.

7. Adjustments for Working Capital and Risk Profile Differences:
The appellant argued that suitable adjustments were not made to account for differences in working capital positions and risk profiles between the appellant and comparable companies. The Tribunal emphasized the need for such adjustments to ensure accurate comparability.

8. Classification of Inter-Company Receivables as International Transactions:
The appellant contested the classification of inter-company receivables arising from the provision of research and information services as a separate international transaction under section 92B of the Act. The Tribunal, following previous decisions, upheld this classification and directed that interest on late realization of invoices be charged.

9. Initiation of Penalty Proceedings under Section 271(1)(c):
The appellant argued against the initiation of penalty proceedings under section 271(1)(c) of the Act. The Tribunal deemed this ground premature and dismissed it.

10. Levy of Interest under Section 234D:
The appellant contested the levy of interest under section 234D of the Act. The Tribunal dismissed this ground as no specific arguments were advanced.

Conclusion:
The appeal was partly allowed, with the Tribunal directing the exclusion of certain comparable companies and upholding the inclusion of foreign exchange gains/losses in operating margins. The classification of inter-company receivables as international transactions was upheld, and the initiation of penalty proceedings and levy of interest were dismissed as premature or unsupported by specific arguments.

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