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2016 (9) TMI 1447 - AT - Income TaxTPA - selection of comparables - Held that - Companies functionally dissimilar with assessee as pure software development service provider to be deselected from final list. Working capital adjustment - Held that - CIT(A) has held that the action of the TPO in restricting working capital adjustment to 1.98% is correct. We find that 1.92% which comes out based on final list of comparables is lesser than 1.98% adopted by the TPO. The ld counsel for the assessee requested that working capital adjustment should be given at actual based on final comparables. Reliance was placed on the ITAT decision in ARM Embedded Technologies Pvt. Ltd. Vs. DCIT 2015 (8) TMI 1437 - ITAT BANGALORE . Hence we direct the TPO to rework the working capital adjustment. TPO is directed to provide appropriate working capital adjustment for the sales and marketing segment. As relying on the decision in the case of CSR India Pvt. Ltd. Vs ITO in IT(TP) 2013 (1) TMI 773 - ITAT BANGALORE foreign exchange gain or loss should be considered as operating in nature for marketing support services. The Appellant s margin is within 5% range of the average margin of the comparables. Thus the international transactions of the Appellant should be considered to be at arm s length. With these directions we set aside the issues to the file of the TPO to rework the ALP.
Issues Involved:
1. Selection/Confirmation of Comparables by TPO and CIT(A) 2. Treatment of Foreign Exchange Gain or Loss 3. Computation of Working Capital Adjustment 4. Risk Adjustment in Computing Adjusted Margin 5. Computation of Operating Margin of Comparables and Assessee 6. TP Adjustment in Marketing Support Segment 7. Exclusion of Certain Companies from Comparables List 8. General and Conceptual Grounds Detailed Analysis: Issue 1: Selection/Confirmation of Comparables by TPO and CIT(A) The assessee contested the selection of ICRA Techno Analytics Ltd (seg.) and Kals Information Systems Ltd (seg.) as comparables by the TPO and CIT(A). The Tribunal noted that ICRA Techno Analytics Ltd. was involved in diverse activities including software development, consultancy, and web hosting, making it functionally incomparable with the assessee, which solely provided software development services. Similarly, Kals Information Systems Ltd. was engaged in both software services and product development, further disqualifying it as a comparable. Issue 2: Treatment of Foreign Exchange Gain or Loss The Tribunal referred to the decision in CSR India Pvt. Ltd. Vs ITO, ruling that foreign exchange gain or loss should be considered as operating in nature for computing the operating margin of both the comparables and the assessee. Issue 3: Computation of Working Capital Adjustment The TPO had restricted the working capital adjustment to 1.98%. However, the Tribunal directed that working capital adjustment should be computed based on the final list of comparables, referencing the ITAT decision in ARM Embedded Technologies Pvt. Ltd. Vs. DCIT, which supports computing the adjustment at actual based on final comparables. Issue 4: Risk Adjustment in Computing Adjusted Margin The Tribunal acknowledged that the assessee operates in a risk-mitigated environment and should be granted risk adjustment. It referred to the decision in M/s Intellinet Technologies India Pvt. Ltd. Vs. ITO, which supports granting risk adjustment to align with the risk profiles of comparables. Issue 5: Computation of Operating Margin of Comparables and Assessee The Tribunal found that the assessee’s margin was higher than the average margin of the comparables, implying that the international transaction related to software development services was at arm’s length. Issue 6: TP Adjustment in Marketing Support Segment The TPO’s comparables for the marketing support segment included companies like Asian Business Exhibition & Conferences Ltd., which was functionally different from the assessee. The Tribunal directed the exclusion of such companies and recalculated the arm’s length price, concluding that the assessee’s margin was within the acceptable range. Issue 7: Exclusion of Certain Companies from Comparables List The Tribunal excluded companies like Asian Business Exhibition & Conferences Ltd., HCCA Business Services Ltd., and Killick Agencies & Marketing Ltd. from the comparables list due to functional dissimilarities or failing the RTP filter. The final comparables retained were Cyber Media Research Ltd., ICC International Agencies Ltd., and Priya International Ltd. Issue 8: General and Conceptual Grounds Grounds 2, 3, and 4 of the Revenue’s appeal were decided in favor of the assessee, referencing the jurisdictional High Court’s decision in Tata Elxsi Ltd. The Tribunal upheld the CIT(A)’s directions and dismissed the Revenue’s appeal on these grounds. Conclusion: The Tribunal ruled in favor of the assessee on multiple grounds, directing the exclusion of certain comparables, the inclusion of foreign exchange gains/losses as operating in nature, and the proper computation of working capital and risk adjustments. The Revenue’s appeal was largely dismissed, with the Tribunal affirming the CIT(A)’s decisions based on established jurisprudence.
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