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2017 (11) TMI 1724 - AT - Income TaxTPA - comparable selection - functinal comparability - Held that - The assessee is a company incorporated on 19.03.2004 and is wholly owned subsidiary of Omniglobe International LLC, USA, which is engaged in the provision of BPO/Data Processing Services to its AE. It also provides IT Enabled services relating to phone activation and local number portability to various clients for and on behalf of its parent company, thus companies functionally dissimilar with that of assessee need to deselected from final list. As three comparables Accentia Technologies Ltd., TCS E-Serve Ltd. and Infosys BPO Ltd. are excluded from the list of comparables, the average margin of the OP/OC of the comparables comes to 11.60% as against 8.63% margin declared by the assessee and the assessee falls within /-5%. The TPO is accordingly directed to verify the same and pass appropriate order. The grounds raised by the assessee are accordingly partly allowed.
Issues Involved:
1. Adjustment of arm's length price for international transactions. 2. Selection and rejection of comparable companies for benchmarking analysis. 3. Risk adjustment for the assessee being a low-risk-bearing captive service provider. 4. Levy of interest under Sections 234B and 234C of the Income-tax Act. Issue 1: Adjustment of Arm's Length Price for International Transactions The assessee, a wholly-owned subsidiary of Omniglobe International LLC, USA, engaged in BPO/Data Processing Services, filed a return declaring Nil income. The Assessing Officer referred the matter to the TPO for determining the arm's length price of international transactions. The TPO made an upward adjustment of ?7,33,40,509/- to the arm's length price. The DRP directed the TPO to retain certain comparables and exclude others, resulting in an adjusted arm's length price of ?39,26,22,701/- and an upward adjustment of ?5,28,13,656/-. However, the adjustment was restricted to ?90,63,995/- as per the DRP's direction. Issue 2: Selection and Rejection of Comparable Companies for Benchmarking Analysis The assessee challenged the selection of certain comparables. The Tribunal considered the exclusion of three companies: Accentia Technologies Ltd., TCS E-Serve Ltd., and Infosys BPO Ltd., on the grounds of functional dissimilarity and lack of segmental data. - Accentia Technologies Ltd.: The Tribunal found that this company operates in two segments—medical transcription and software development—with no segmental profitability available. It also owns significant intangible assets. The Tribunal directed the exclusion of this company due to functional dissimilarity and non-availability of segmental data. - TCS E-Serve Ltd.: The Tribunal noted that this company provides transaction processing and technical services without segmental data. It also exploits the TATA brand, leading to higher profits. The Tribunal directed its exclusion due to functional dissimilarity and significant intangibles. - Infosys BPO Ltd.: This company was excluded due to its functional dissimilarity, ownership of significant intangibles, and brand value. The Tribunal found that the Infosys brand leads to higher profits, making it incomparable to the assessee. Issue 3: Risk Adjustment for Low-Risk-Bearing Captive Service Provider The assessee argued for a risk adjustment due to its low-risk-bearing nature compared to independent ITES service providers. The Tribunal found merit in this argument but directed the TPO to verify the details and pass an appropriate order. Issue 4: Levy of Interest under Sections 234B and 234C The assessee contested the levy of interest under Sections 234B and 234C. However, the Tribunal did not provide a detailed analysis on this issue, implying its dismissal. Conclusion: The Tribunal directed the exclusion of Accentia Technologies Ltd., TCS E-Serve Ltd., and Infosys BPO Ltd. from the list of comparables. It instructed the TPO to verify the average margin of the remaining comparables and pass an appropriate order. The appeal was partly allowed, with specific directions to the TPO for recalculating the arm's length price based on the revised list of comparables.
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