2018 (4) TMI 1574 - AT - Income Tax

Transfer pricing - arm s length price adjustment u/s 92CA - assessee is compensated on a cost place markup basis for the services rendered to its associated enterprise - selection of comparable companies - assessee is challenging the exclusion of certain companies - Held that - appeal of the assessee is allowed in part for statistical purpose.

Summary

Issues Involved:
1. Transfer Pricing Adjustments in IT and ITES Segments.
2. Inclusion/Exclusion of Comparables.
3. Allocation of Director's Remuneration between STP and Non-STP Units.
4. Penalty Initiation and Interest.

Detailed Analysis:

1. Transfer Pricing Adjustments in IT and ITES Segments:
The assessee, a wholly-owned subsidiary providing software development and IT-enabled services, challenged the addition of ?17,84,42,262 towards arm's length price (ALP) adjustment under Section 92CA of the Income Tax Act. The Transfer Pricing Officer (TPO) proposed adjustments of ?14,10,06,876 for the IT segment and ?7,10,53,705 for the ITES segment. The Dispute Resolution Panel (DRP) directed the Assessing Officer (AO) to make an addition of ?17,84,42,262 towards TP adjustment and ?3,46,434 for wrong allocation of director's salary.

2. Inclusion/Exclusion of Comparables:
The key contention was the selection of comparables for benchmarking the international transactions. The assessee disputed the inclusion of five companies (Infosys Ltd., Wipro Technology Services Ltd., Acropetal Technologies Ltd., E-Infochips Ltd., E-Zest Solutions Ltd.) and sought the inclusion of seven others (CG VAK Software & Exports Ltd., Goldstone Technologies Ltd., Thinksoft Global Services Ltd., Cat Technologies Ltd., LGS Global Ltd., R. Systems International Ltd., Blue Star Infotech Ltd.).

Infosys Ltd.:
The Tribunal excluded Infosys Ltd. based on functional dissimilarity, significant intangibles, and high turnover, following the precedent set in the assessee's own case for AY 2009-10.

Wipro Technology Services Ltd.:
Excluded due to its entire revenue being covered by a master service agreement with Citi Group, making it functionally dissimilar.

Acropetal Technologies Ltd.:
Directed the AO to verify the employee cost percentage to total cost and exclude if it fails the filter.

E-Infochips Ltd.:
Excluded due to functional dissimilarity and lack of segmental data, aligning with the decision in Ness Technologies (India) (P.) Ltd.

E-Zest Solutions Ltd.:
Excluded as it was engaged in high-end technical services and product engineering, not comparable to the assessee's software development services.

CG VAK Software & Exports Ltd., R. Systems International Ltd., Goldstone Technologies Ltd., Thinksoft Global Services Ltd., Cat Technologies Ltd., LGS Global Ltd.:
Directed the AO to include these companies if they pass the relevant filters (employee cost, RPT, etc.), following precedents and functional analysis.

3. Allocation of Director's Remuneration between STP and Non-STP Units:
The Tribunal set aside the DRP's direction and restored the issue to the AO for fresh examination, following precedents in the assessee's own cases for earlier years.

4. Penalty Initiation and Interest:
The ground related to penalty initiation was deemed premature, and the interest issue was consequential in nature.

Conclusion:
The appeal was partly allowed for statistical purposes, with directions for fresh examination and verification by the AO on specific issues. The Tribunal's decision emphasized functional comparability, adherence to precedents, and detailed analysis of financials and business models.