2017 (4) TMI 1422 - AT - Income Tax

TPA - comparable selection - Held that - Companies functionally dissimilar with that of assessee need to be deselected from final list. Assessee has no objection for retention / inclusion of Cosmic Global Ltd., e4e Healthcare Business Services Pvt. Ltd. and Jindal Intellicom Ltd.. Accentia Technologies Ltd. - TPO is directed to ascertain the profile of the assessee by examining the service agreements which the assessee is having with its AE and to come out whether the service rendered by the assessee to its AE were in the nature of BPO, KPO or Software Services. Acropetal Technologies Ltd. and Infosys BPO - These 2 comparables cannot be subject matter of appeal before the Tribunal as inclusion of these 2 comparables was never challenged by the assesse before the DRP/TPO as well as before the Tribunal. The grounds raised by the assessee before us are not providing any objection for these 2 comparables. Therefore, the objection of the assessee in respect of exclusion of these 2 comparables is devoid of merit. ICRA Online Ltd. (seg) - the company is required to be rejected as it fails on RPT filter being 22.77%. We direct the TPO to verify the RPT of ICRA Online Ltd. (seg) and if the RPT was found to be 22.77% or more than 15% than TPO is directed to excluded it . Jeevan Scientific Technology Ltd., Mindtree Ltd., iGate Solutions Ltd. exclusion as if the turnover of the comparable is below 1/10th of the turnover sales of the assessee or more than 10 times sales of the assessee then said comparables are required to be excluded. Appeal of the assessee is allowed for statistical purposes

Issues Involved:

1. Validity of the order passed by the Asst. Commissioner of Income-tax.
2. Transfer pricing adjustment of ?4,03,93,455/-.
3. Reference to Transfer Pricing Officer (TPO) for determining arm's length price.
4. Legal validity of additions under Chapter X.
5. Demonstration of tax evasion motive.
6. Basis of computation in the final assessment order.
7. Enhancement to the TP adjustment by the DRP without notice.
8. Rejection of the transfer pricing analysis by the assessee.
9. Selection and rejection of comparables.
10. Computation of Arm's Length Price (ALP).
11. Levying interest under section 234B.

Issue-wise Detailed Analysis:

1. Validity of the Order Passed by the Asst. Commissioner of Income-tax:
The assessee challenged the order passed by the Asst. Commissioner of Income-tax, Bangalore, dated 31/12/2015, claiming it was bad in law and disregarded the principles of natural justice.

2. Transfer Pricing Adjustment of ?4,03,93,455/-:
The assessee contested the transfer pricing adjustment made by the TPO, which was upheld by the Dispute Resolution Panel (DRP). The TPO had determined the adjustment based on a comparison of the assessee's margins with those of selected comparables.

3. Reference to Transfer Pricing Officer for Determining Arm's Length Price:
The assessee objected to the reference made to the TPO for determining the arm's length price, arguing that the transfer pricing analysis undertaken by the assessee was unjustifiably rejected.

4. Legal Validity of Additions under Chapter X:
The assessee argued that there was no amendment to the definition of "income" under the head "Profits & Gains of Business or Profession" to include amounts computed under Chapter X, making the addition under Chapter X bad in law.

5. Demonstration of Tax Evasion Motive:
The assessee claimed that the order was passed without demonstrating that the appellant had a motive of tax evasion.

6. Basis of Computation in the Final Assessment Order:
The assessee contended that the TP adjustment was recomputed at ?4,03,93,455/- in the final assessment order without providing the basis of computation.

7. Enhancement to the TP Adjustment by the DRP without Notice:
The assessee argued that the DRP made an enhancement to the TP adjustment and total income without giving notice of enhancement.

8. Rejection of the Transfer Pricing Analysis by the Assessee:
The lower authorities were claimed to have erred in rejecting the transfer pricing analysis undertaken by the assessee on unjustifiable grounds and conducting a fresh transfer pricing analysis despite the absence of any defects in the original analysis.

9. Selection and Rejection of Comparables:
The assessee raised objections to the rejection of comparables selected in the TP study and the additional comparables proposed by the assessee. The assessee also contested the filters adopted for selecting comparables and the selection of inappropriate comparables.

10. Computation of Arm's Length Price (ALP):
The assessee objected to the treatment of provision for bad debt and bad debts written off as non-operating in nature while computing the margin of the comparables. The assessee also argued that the working capital adjustment was not appropriately computed, and proper adjustments for enterprise level and transactional level differences and risk differentials were not made.

11. Levying Interest under Section 234B:
The assessee contested the levy of interest under section 234B amounting to ?60,05,520/-, denying liability to pay interest.

Judgment Analysis:

General Grounds:
The Tribunal noted that the assessee is a private limited company and a subsidiary of Zyme Solutions Inc., USA, providing data processing services on a cost-plus markup basis. Despite the parent company incurring operating losses, the assessee consistently declared income based on cost plus margin.

Transfer Pricing Grounds:
The Tribunal observed that the assessee adopted the Transactional Net Margin Method (TNMM) and selected four comparables. However, the TPO, after a detailed analysis, included additional comparables and determined a higher TP adjustment. The Tribunal dealt with the objections raised by the assessee regarding the inclusion and exclusion of specific comparables.

Specific Comparables:
- Accentia Technologies Ltd.: The Tribunal remanded the matter to the TPO/DRP for a detailed comparison of the profile of the assessee with that of Accentia Technologies Ltd.
- Acropetal Technologies Ltd. and Infosys BPO: The Tribunal rejected the assessee's objections as these comparables were initially accepted by the assessee.
- ICRA Online Ltd. (seg): The Tribunal remanded the matter to the TPO to verify the Related Party Transactions (RPT) and functional comparability.
- Jeevan Scientific Technology Ltd., Mindtree Ltd., iGate Solutions Ltd.: The Tribunal directed the exclusion of these comparables based on the turnover filter, following the precedent set in Macfee Software India Pvt. Ltd.

Other Grounds:
The Tribunal did not specifically address the grounds related to the levy of interest under section 234B, as the primary focus was on transfer pricing issues.

Conclusion:
The appeal was allowed for statistical purposes, with specific directions for the TPO to re-examine certain comparables and verify details as per the Tribunal's instructions. The order was pronounced in the open court on 28th April 2017.

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