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2018 (7) TMI 1878 - AT - Income TaxTPA - Comparable selection - functinal similarity - Held that - Assessee has rendered Software Development Services to its AE thus companies functionally dissimilar with that of assessee need to be deselected from final list. Adherence to filters such as export earnings less than 25% employee cost less than 25% RPT more than 25% Onsite revenue more than 60%. Some companies also lacks comparability based on scale of operations. Disallowing the claim of deduction u/s 10A - Disallowance of expenditure - allocation of expenditure between 10A units and non 10A unit - Held that - disallowance has been made on an adhoc basis without pointing out any particular item of expenditure which is relatable to the non PSE division. It is also emerging from the record that the action of the Assessing Officer is based on similar addition made in assessment year 2008- 09. Before us nothing has been brought out to show the finality of the addition made in preceding assessment year 2008-09. However additions made on mere conjectures and surmises are unsustainable. Be that as it may considering the entirety of circumstances we deem it fit and proper to restore the matter back to the file of Assessing Officer who shall reconsider the aforesaid addition afresh as per law
Issues Involved:
1. Upward adjustment to the total income of the assessee on account of international transactions relating to software development services. 2. Upward adjustment made to the international transactions relating to global call center services. 3. Disallowance of expenditure of Rs. 33,95,873/- while computing income from the domestic undertaking. Detailed Analysis: 1. Upward Adjustment to the Total Income of the Assessee on Account of International Transactions Relating to Software Development Services: The assessee, engaged in software development services, faced an upward adjustment of Rs. 1,98,33,679/- by the TPO, which was upheld by the DRP. The TPO used the Transactional Net Margin Method (TNMM) and selected 23 comparables, rejecting 10 out of 11 comparables proposed by the assessee. The assessee contested the inclusion of 15 out of these 23 comparables based on various grounds such as functional dissimilarity, failing initial filters, and incorrect margin computation. The Tribunal agreed with the assessee on the exclusion of the following companies: - Acropetal Technologies Ltd.: Failed employee cost and onsite development filters; engaged in product sales. - Avani Cincom Technologies Ltd.: Engaged in product development, functionally dissimilar. - Bodhtree Consulting Ltd.: Engaged in ITES, functionally dissimilar; no segmental data. - Celestial Labs Ltd.: Engaged in IT Bioinformatics and product development, functionally dissimilar. - E-Infochips Ltd.: Engaged in hardware designing and product sales, functionally dissimilar. - E-Zest Solutions Ltd.: Engaged in KPO services, no segmental data. - Igate Global Solutions Ltd.: Engaged in ITES, functionally dissimilar; large scale of operations. - Infosys Technologies Ltd.: Large scale of operations, engaged in multiple services including product sales. - KALS Information Systems Ltd.: Engaged in product development, holds significant inventory. - Persistent Systems Ltd.: Engaged in multiple business segments, including product sales. - Quintegra Solutions Ltd.: Engaged in product engineering and R&D, owns intangibles. - Tata Elxsi Ltd.: Engaged in product design services, large scale of operations. - Thirdware Solutions Ltd.: Engaged in product sales and application management, no segmental data. - Wipro Ltd.: Engaged in multiple segments, including product sales, large scale of operations. - Softsol India Ltd.: Margin computation error corrected to 15%. The Tribunal directed the AO to exclude these companies and recompute the operating margin, which would fall within the permissible range of +/- 5%. 2. Upward Adjustment Made to the International Transactions Relating to Global Call Center Services: The TPO made an upward adjustment of Rs. 22,07,311/- for global call center services, selecting 21 comparables. The assessee contested the inclusion of 11 comparables based on functional dissimilarity and other grounds. The Tribunal agreed with the assessee on the exclusion of the following companies: - Accentia Technologies Ltd.: Engaged in medical transcription and product sales, functionally dissimilar. - Acropetal Technologies Ltd.: Engaged in high-end KPO services. - Coral Hubs Ltd.: Engaged in data digitization, low employee cost, outsourcing model. - Crossdomain Solutions Ltd.: Engaged in KPO services, large scale of operations. - Datamatics Financial Services Ltd.: Engaged in registrar & transfer agency services, no segmental data. - Eclerx Services Ltd.: Engaged in KPO services, high related party transactions. - Genesys International Corporation Ltd.: Engaged in geospatial services, owns intangibles. - HCL Comnet Systems & Services Ltd.: Different financial year-end, large scale of operations. - Infosys BPO Ltd.: Large scale of operations, multiple delivery centers. - Mold-Tek Technologies Ltd.: Underwent restructuring, engaged in structural engineering services. - Wipro Ltd.: Engaged in multiple segments, large scale of operations. The Tribunal directed the AO to exclude these companies and recompute the operating margin. 3. Disallowance of Expenditure of Rs. 33,95,873/- While Computing Income from the Domestic Undertaking: The AO disallowed 25% of the expenses claimed for the non-10A unit on an ad hoc basis, suspecting higher allocation to non-10A units. The Tribunal noted that the AO did not identify specific expenses as non-genuine and had made the disallowance without proper basis. Following the precedent from the previous year, the Tribunal set aside the issue to the AO for fresh adjudication, directing the AO to reconsider the expenses with proper examination and allow the assessee a reasonable opportunity to present its case. Conclusion: The appeal was partly allowed for statistical purposes, with directions for the AO to exclude certain comparables and recompute the operating margins for both software development services and global call center services, and to re-adjudicate the disallowance of expenses for the domestic undertaking.
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