2015 (11) TMI 1793 - AT - Income Tax

TP Adjustment - Comparable selection - HELD THAT - Assessee is a company incorporated under the provisions of the Companies Act 1956 engaged in the business of software development consultancy services and IT enabled services thus companies functionally dissimilar with that of assessee need to be deselected from final list. Compute profit u/s 10A before setting off of the losses of another unit - HELD THAT - CIT(A) to compute profit u/s 10A of the Act before setting off of the losses of another unit. The CITA) following the jurisdictional High Court decision in the case of CIT Vs M/s Yokogawa India Ltd. 2011 (8) TMI 845 - Karnataka High Cour t As per section 72(2) unabsorbed business loss is to be fist set of and thereafter unabsorbed depreciation treated as current year s depreciation under section 32(2) is to be set off. As deduction under section 10A has to be excluded from the total income of the assessee the question of unabsorbed business loss being set off against such profit and gains of the undertaking would not arise. In that view of the matter the approach of the assessing authority was quite contrary to the aforesaid statutory provisions and the Appellate granting the benefit of section 10A to the assessee. Hence the main substantial question of law is answered in favour of the assesses

Issues Involved:

1. Exclusion of M/s Wipro BPO Solutions Pvt. Ltd. as a comparable based on turnover.
2. Exclusion of M/s Vishal Information Technologies Ltd. based on abnormal profit margins.
3. Exclusion of M/s Nucleus Netsoft & GIS Ltd. based on related party transactions.
4. Inclusion of M/s Microland Ltd. as a comparable.
5. Adjustment for underutilization of capacity.
6. Computation of deduction under Section 10A before setting off losses.
7. Inclusion of M/s Maple E-Solutions Ltd. based on tainted management.
8. Inclusion of M/s Hero Management Services Ltd. as a comparable.

Detailed Analysis:

1. Exclusion of M/s Wipro BPO Solutions Pvt. Ltd.:
The CIT(A) excluded M/s Wipro BPO Solutions Pvt. Ltd. from the list of comparables on the ground that its turnover exceeded Rs. 200 Crores. The Tribunal found that the CIT(A) did not address this specific comparable in the order. Consequently, this ground of appeal was dismissed.

2. Exclusion of M/s Vishal Information Technologies Ltd.:
The CIT(A) excluded M/s Vishal Information Technologies Ltd. due to its abnormal profit margin and functional dissimilarity. The Tribunal upheld this decision, noting that the company was engaged in call center services, making it functionally different. The Tribunal referenced the Delhi High Court's decision in M/s Rampgreen Solutions Pvt. Ltd. vs CIT, which distinguished between BPO and KPO services, affirming that a KPO service provider cannot be a comparable for a BPO service provider.

3. Exclusion of M/s Nucleus Netsoft & GIS Ltd.:
The CIT(A) excluded M/s Nucleus Netsoft & GIS Ltd. due to related party transactions and outsourcing a significant portion of its business. The Tribunal supported this exclusion, citing the decision in M/s IVY Comptech Pvt. Ltd., which held that companies with substantial outsourcing cannot be considered comparables.

4. Inclusion of M/s Microland Ltd.:
The CIT(A) included M/s Microland Ltd. in the list of comparables. The Tribunal noted that this inclusion was not contested in the appeal, thus dismissing the ground related to its exclusion.

5. Adjustment for Underutilization of Capacity:
The CIT(A) allowed adjustments for underutilization of capacity, noting that the assessee's IPLC link cost was only 44.34%, indicating underutilization. The Tribunal upheld this adjustment, referencing multiple decisions, including M/s Global Vanttedge Pvt. Ltd., which emphasized the necessity of such adjustments to ensure accurate benchmarking of international transactions.

6. Computation of Deduction under Section 10A:
The CIT(A) directed that the deduction under Section 10A should be computed before setting off losses, following the jurisdictional High Court's decision in CIT vs M/s Yokogawa India Ltd. The Tribunal upheld this direction, affirming that the income of the Section 10A unit must be excluded at source before arriving at the gross total income.

7. Inclusion of M/s Maple E-Solutions Ltd.:
The assessee contended that M/s Maple E-Solutions Ltd. should be excluded due to tainted management. The Tribunal agreed, directing the AO/TPO to delete this company from the list of comparables, citing decisions such as ITO vs CRM Services India Pvt. Ltd. and Stream International Services Pvt. Ltd. vs ADIT.

8. Inclusion of M/s Hero Management Services Ltd.:
The CIT(A) excluded M/s Hero Management Services Ltd. due to its negative operating margin. The Tribunal found this reasoning unsound, stating that companies incurring normal losses could still be included as comparables. The Tribunal directed the AO/TPO to include this company in the list of comparables.

Conclusion:
The Tribunal dismissed the revenue's appeal and partly allowed the assessee's cross-objection, affirming the CIT(A)'s decisions on various grounds while providing specific directions for inclusion and exclusion of certain comparables. The judgment emphasizes the importance of functional similarity and appropriate adjustments in transfer pricing cases.

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