2016 (8) TMI 1439 - AT - Income Tax

TP Adjustment - computation of net margin of the assessee - revised operating margin of the assessee, after excluding the foreign exchange losses, works out to be 15.09% - HELD THAT - We observe that various decisions of this Bench as well as other benches of the Tribunal have treated the foreign exchange losses as operating in nature. Hence such items of expenditure or gain are to be considered as operational in nature in case of comparables. Selection of uncomparable companies - Accentia Technologies Ltd. is to be deselected due to extraordinary events of acquisition. Also the said company has inorganic growth, functionally dissimilar, presence of intellectual property rights and extra-ordinary events as relying on M/S. HYUNDAI MOTORS INDIA ENGINEERING P. LTD. AND VICA-VERSA 2015 (11) TMI 1648 - ITAT HYDERABAD E-clerx Services Ltd. company to be rejected by the coordinate bench of this Tribunal in assessee s own case for AY 2009-10 for functional dissimilarity, diverse portfolio and lack of segmental data. Also it has abnormal profits and extraordinary events and unreliable data. TCS e- Serve International Ltd. - no segmental information available for the said company and it has extra-ordinary events during the year and presence of brand value is also there. Turnover of the assessee company for this assessment year is around ₹ 50 crores as against the turnover of TCS e-Serve Limited of ₹ 1405.10 crores. Therefore, following the turnover filter as well as taking note of the fact that it owns and possesses brand value and intangibles as compared to the assessee which does not own such assets, we direct that this company be excluded from the list of final comparables Deduction u/s 10A computation - DRP reducing the entire communication expenses of ₹ 52,44,300/- from the export turnover for the purpose of computing deduction where as the actual leased line internet charges incurred by the assessee was ₹ 15,81,279/- - HELD THAT - We remit this issue to the file of the AO/TPO to verify and decide the issue in accordance with law after providing reasonable opportunity of hearing to the assessee. These grounds are allowed for statistical purposes. Charging interest u/s 234A - assessee submitted that the AO ought to have appreciated that the return of income was filed by the assessee within the due date and interest u/s 234A is not applicable - HELD THAT - We remit this issue back to the file of the AO/TPO to verify the record whether the assessee has filed the return of income within the due date or nor and decide issue accordingly. Non granting credit for tax deducted at source as claimed in the return of income - HELD THAT - AO is directed to verify the claim of the assessee in accordance with law

Issues Involved:
1. Transfer Pricing Adjustments
2. Error in Computation of Net Margin
3. Selection of Comparable Companies
4. Rejection of Comparable Companies
5. Use of Filters in Comparative Analysis
6. Rejection of Multiple Year Data
7. Computation of Working Capital Adjustment
8. Adjustment for Risk Differences
9. Corporate Tax Issues
10. Interest under Section 234A
11. Credit for Tax Deducted at Source

Issue-wise Detailed Analysis:

1. Transfer Pricing Adjustments:
The assessee challenged the final assessment order confirming a transfer pricing adjustment of ?2,69,05,451 towards the provision of Information Technology Enabled Services (ITES) to its Associated Enterprise. The AO/DRP rejected the transfer pricing documentation maintained by the assessee and undertook a fresh economic analysis, resulting in the adjustment.

2. Error in Computation of Net Margin:
The assessee argued that the foreign exchange loss amounting to ?57,91,063 should be treated as non-operating while computing the net margin under the Transactional Net Margin Method (TNMM). The Tribunal observed that various decisions have treated foreign exchange losses as operating in nature and thus, included it in the operational expenses.

3. Selection of Comparable Companies:
The assessee contested the inclusion of certain companies as comparables by the TPO:
- Accentia Technologies Ltd.: The Tribunal directed the exclusion of this company due to extraordinary events of acquisition and functional dissimilarity.
- E-clerx Services Ltd.: The Tribunal excluded this company for functional dissimilarity, diverse portfolio, and lack of segmental data.
- TCS e-Serve International Ltd.: The Tribunal excluded this company due to the presence of brand value, intangibles, and huge turnover.

4. Rejection of Comparable Companies:
The assessee also challenged the rejection of certain comparable companies by the TPO but did not press this issue during the hearing, leading to its dismissal.

5. Use of Filters in Comparative Analysis:
The assessee contested the use of additional filters by the AO/DRP in the comparative analysis. However, this issue was not pressed during the hearing and thus dismissed.

6. Rejection of Multiple Year Data:
The AO/DRP's rejection of the use of multiple year data and relying only on data for FY 2009-10 was challenged but not pressed during the hearing, leading to its dismissal.

7. Computation of Working Capital Adjustment:
The AO/DRP's adoption of an incorrect SSI Prime Lending Rate at 10.25% instead of 12.25% for computing the working capital adjustment was challenged but not pressed during the hearing, leading to its dismissal.

8. Adjustment for Risk Differences:
The assessee argued that the AO/DRP disregarded the risk profile of the assessee vis-a-vis comparable companies and did not allow a risk adjustment as per Rule 10B(1)(e). This issue was not pressed during the hearing and thus dismissed.

9. Corporate Tax Issues:
The assessee contended that the AO/DRP erred in reducing the entire communication expenses of ?52,44,300 from the export turnover for computing deduction under section 10A, whereas the actual leased line-internet charges were ?15,81,279. The Tribunal remitted this issue back to the AO/TPO for verification and decision in accordance with the law.

10. Interest under Section 234A:
The assessee argued that interest under section 234A was incorrectly charged as the return of income was filed within the due date. The Tribunal remitted this issue back to the AO/TPO to verify the filing date and decide accordingly.

11. Credit for Tax Deducted at Source:
The assessee claimed that the AO did not grant credit for tax deducted at source of ?11,000 as claimed in the return of income. The AO was directed to verify and grant the credit as per the law.

Conclusion:
The Tribunal partly allowed the assessee's appeal for statistical purposes, directing the AO/TPO to verify and decide on specific issues in accordance with the law, while excluding certain companies from the list of comparables based on functional dissimilarity and extraordinary events.

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