2016 (5) TMI 1446 - AT - Income Tax

TPA - comparables selection - functional dissimilarity - Held that -When a sufficient number of comparable companies are available for determination of arm s length price (ALP), then the tolerance limit of RPT at 15% is proper in the case of assessee. Accordingly, we direct the AO/TPO to exclude the following three companies from the list of comparables having more than 15% RPT - Aztec Software Ltd., Geometric Software Ltd. (Seg.) AND Megasoft Ltd. Assessee is purely a software development service provider to its parent company thus companies functionally dissimilar with that of assessee need to be deselected from final list.

Summary

Issues Involved:
1. Legality of Assessment and Reference to Transfer Pricing Officer (TPO)
2. Fresh Comparable Search by TPO
3. Comparability Analysis for Determination of Arm’s Length Price (ALP)
4. Erroneous Data Used by TPO
5. Non-Allowance of Appropriate Adjustments
6. Variation of 5% from Arithmetic Mean
7. Deduction under Section 10A of the Income-tax Act
8. Interest under Section 234B
9. Interest under Section 234D
10. Directions Issued by the Dispute Resolution Panel (DRP)
11. Initiation of Penalty Proceedings
12. Relief Sought by the Assessee

Detailed Analysis:

1. Legality of Assessment and Reference to TPO:
The assessee contended that the final order issued by the AO was bad in law and violated the principles of natural justice due to the lack of a show cause notice as per the proviso to section 92C(3) of the Act. Additionally, the AO failed to record an opinion that any conditions in section 92C(3) were satisfied before making a reference to the TPO.

2. Fresh Comparable Search by TPO:
The TPO's fresh benchmarking analysis using non-contemporaneous data and the introduction of additional comparable companies without giving the assessee an opportunity to respond were challenged. The TPO was also criticized for not demonstrating that the motive of the assessee was to shift profits outside India, which is a prerequisite for adjustments under Chapter X of the Act.

3. Comparability Analysis for Determination of ALP:
The TPO's comparability analysis was contested on several grounds:
- Benchmarking transactions of the captive software services with companies operating as full-fledged entrepreneurs.
- Rejection of comparable companies identified in the Transfer Pricing Study.
- Application of arbitrary filters without establishing functional comparability.
- Acceptance of companies without considering turnover and size.
- Deviating from the uncontrolled party transaction definition and applying a 25% related party criteria.
- Rejecting companies with different year endings and inconsistently applying filters.
- Rejecting companies based on software development revenue and export revenue criteria.
- Using 'secret data' not available in the public domain.
- Excluding foreign exchange gain or loss while calculating net margins.
- Incorrectly computing margins of certain comparable companies.

4. Erroneous Data Used by TPO:
The TPO was accused of using non-contemporaneous data not available in the public domain at the time of the assessee's transfer pricing study and not applying multiple-year data while computing the margin of comparable companies.

5. Non-Allowance of Appropriate Adjustments:
The TPO failed to allow appropriate adjustments under Rule 10B to account for differences in accounting practices, marketing expenditure, research and development expenditure, and risk profile between the assessee and comparable companies.

6. Variation of 5% from Arithmetic Mean:
The TPO did not grant the benefits of the proviso to section 92C(2) of the Act, which allows for a 5% variation from the arithmetic mean.

7. Deduction under Section 10A:
The AO proposed and the DRP confirmed the reduction of leased line charges from export turnover while computing the deduction under section 10A. The assessee argued that these charges should also be reduced from the total turnover.

8. Interest under Section 234B:
The AO levied interest under section 234B amounting to ?4,544,272, which the assessee contested.

9. Interest under Section 234D:
The AO levied interest under section 234D amounting to ?180, which the assessee contested.

10. Directions Issued by the DRP:
The DRP was accused of not taking cognizance of the objections filed by the assessee and confirming the draft order of the AO/TPO without proper consideration.

11. Initiation of Penalty Proceedings:
The assessee argued that there was no basis for the AO to propose the initiation of penalty proceedings under section 271(1)(c) of the Act.

12. Relief Sought by the Assessee:
The assessee prayed for directions to grant all relief arising from the above grounds and consequential reliefs, including the deletion of the transfer pricing adjustments made by the AO/TPO and upheld by the DRP.

Conclusion:
The Tribunal addressed each issue raised by the assessee, providing detailed reasoning and directions for the AO/TPO to follow. The Tribunal directed the exclusion of certain comparable companies, re-examination of others, and adjustment of the ALP calculation. Additionally, it provided relief regarding the deduction under section 10A and directed the AO to give consequential effects for the interest levied under sections 234B and 234D. The appeals were partly allowed.