2018 (1) TMI 1547 - AT - Income Tax

TP Adjustment - Comparable selection - HELD THAT - The annual report of the company showed that during the year 2011-12 it was awarded the work of rendering consultancy services for design and engineering, project management procurement of medical equipments, drugs and pharmaceuticals for various prestigious and big projects, that it was participating exhibitions organised by various agencies. HSCC had shown abnormally high profit margin for the year ended on 31/03/2012 @ 39. 08%, that in the earlier years it had shown profit @17. 02%. A government enterprise cannot be rejected as a valid comparable just because it is a government undertaking. But, the basis of accepting/rejecting it is a valid comparable should be the functionality, especially when TNMM is applied. Cases relied upon by the representatives deal with the issue of comparisons of government undertakings with private business entities. But, they lay down the general principles and hold that FAR is the decisive factor for comparing the valid comparables. We hold that ASL is a valid comparable and HSCC is not a good comparable for benchmarking the IT. s, entered into by the assessee, for the year under consideration. If ASL is considered as a valid comparable, the assessee will fall within the safe zone of ( / -)5% of the arithmetic mean. So, we hold that there was no justification in making the upward adjustment for the IT. s of the assessee. We decide effective ground of appeal, in favour of the assessee.

Summary

Issues Involved:
1. Upward adjustment of ?5.77 crores to the total income of the assessee.
2. Validity of comparables selected for benchmarking international transactions.
3. Inclusion of Arcadia Shipping Ltd. (ASL) as a valid comparable.
4. Exclusion of HSCC India Ltd. (HSCC) as a valid comparable.

Detailed Analysis:

1. Upward Adjustment of ?5.77 crores:
The primary issue raised by the assessee was the upward adjustment of ?5.77 crores to its total income. The Transfer Pricing Officer (TPO) had proposed this adjustment after determining the Arm's Length Price (ALP) of international transactions entered into by the assessee with its Associated Enterprises (AE). The TPO's draft order proposed an adjustment of ?5.77 crores, which was subsequently upheld by the Assessing Officer (AO) following the directions of the Dispute Resolution Panel (DRP).

2. Validity of Comparables Selected for Benchmarking International Transactions:
The TPO had rejected the comparables selected by the assessee for benchmarking its international transactions. The assessee had used six comparables with an average Profit Level Indicator (PLI) of 6.71%. The TPO directed the assessee to provide updated margins for the comparables, which the assessee did. However, the TPO rejected all the comparables chosen by the assessee, arguing that the comparables were involved in providing security services and recruitment of unskilled laborers, which was not comparable to the assessee's business of providing ship management services.

3. Inclusion of Arcadia Shipping Ltd. (ASL) as a Valid Comparable:
The DRP held that ASL was a valid comparable for determining the ALP. The TPO had rejected ASL, arguing that the services rendered by ASL were not comparable to those rendered by the assessee. However, the DRP noted that ASL provided services similar to those of the assessee, albeit in different fields, and should therefore be considered a valid comparable. The tribunal upheld the DRP's decision, emphasizing that while there might be differences in the specific activities, the overall functions and services provided by both entities were similar.

4. Exclusion of HSCC India Ltd. (HSCC) as a Valid Comparable:
The TPO included HSCC as a valid comparable, which the assessee objected to, arguing that HSCC was a government undertaking with abnormal profits and was not engaged in similar services. The DRP upheld the inclusion of HSCC, noting that it had been considered a valid comparable in the previous assessment year. However, the tribunal found that HSCC's activities were not comparable to those of the assessee. HSCC was involved in high-end professional consultancy services in healthcare, which was significantly different from the ship management services provided by the assessee. The tribunal concluded that HSCC should not be considered a valid comparable due to the significant differences in functionality and the nature of services provided.

Conclusion:
The tribunal held that ASL was a valid comparable and HSCC was not. Consequently, the upward adjustment of ?5.77 crores proposed by the TPO was not justified. The appeal filed by the assessee was allowed, the AO's appeal was dismissed, and the cross-objection filed by the assessee was treated as infructuous. The tribunal also allowed the stay application filed by the assessee for statistical purposes. The order was pronounced in the open court on 3rd January 2018.