2018 (4) TMI 1772 - AT - Income Tax

TP Adjustment - Comparable selection - HELD THAT - Assessee was engaged in rendering marketing and sale support services to Genzyme International. During F.Y. 2008-09, the assessee conducted various activities as per the arrangement with the AEs like procurement of market information, collecting, analyzing and reporting relevant market information, participation in creation of market analyses and market strategies, providing advice with respect to economic, financial, political and business environment and business practices and promote the products produced by the AE based on the instruction to be received from the AE. For rendering above services, the assessee was remunerated on cost plus 5% basis, thus companies functionally dissimilar with that of assessee need to be deselected from final list. RPT filter exceeding 25% - assessee submitted that the RPT is only 14.03% - HELD THAT - We restore the issue to the file of the AO/TPO with a direction to verify the RPT filter and if the assessee fulfills the RPT filter criteria then to retain this company as comparable. The first issue raised by the assessee is accordingly allowed. Incorrect enhancement of cost base for computing the arm s length price - HELD THAT - An amount of ₹ 3.90 crores was considered by the assessee for computing transfer prices in financial year 2007-08 itself for computing the tax depreciation and tax computation. The marketing fee paid was amortized only at the rate of 25% on WDV starting financial year 2007-08. It is also the submission of the ld. AR that in subsequent assessment years, the TPO has not added the tax depreciation to the cost base of the assessee company. The matter requires a re-look at the level of the DRP considering the past assessment year as well as subsequent assessment year of the assessee company on this issue. We, therefore, restore this issue to the file of the DRP with a direction to adjudicate the issue afresh after giving due opportunity of being heard to the assessee. Needless to say, the DRP shall decide the issue as per fact and law. The second issue raised by the assessee in the grounds of appeal is allowed for statistical purposes.

Summary

Issues Involved:
1. Selection of comparables for Transfer Pricing.
2. Incorrect enhancement of cost base for computing the arm’s length price.
3. Levy of interest under various sections of the I.T. Act.
4. Initiation of penalty proceedings under section 271(1)(c).

Detailed Analysis:

1. Selection of Comparables for Transfer Pricing:
The primary issue revolves around the selection and rejection of comparable companies by the Transfer Pricing Officer (TPO) and the Dispute Resolution Panel (DRP).

Choksi Laboratories Ltd.:
The assessee argued that Choksi Laboratories Ltd. is a commercial testing house engaged in highly technical services, which are not comparable to the assessee’s marketing support services. The Tribunal agreed, citing previous decisions (e.g., Yum! Restaurants (India) Pvt. Ltd., Roche Products (India) Pvt. Ltd., Ciena India Pvt. Ltd.) and directed the exclusion of Choksi Laboratories Ltd. from the list of comparables.

WAPCOS Ltd.:
The assessee contended that WAPCOS Ltd., a Government of India undertaking providing engineering consultancy, is not comparable due to its specialized functions and government grants. The Tribunal agreed, referencing multiple decisions (e.g., Thyssen Krup Industries India Pvt. Ltd., Avaya India Pvt. Ltd.) and directed the exclusion of WAPCOS Ltd. from the list of comparables.

Basiz Fund Services Pvt. Ltd.:
The assessee argued that Basiz Fund Services Pvt. Ltd. engages in specialized financial services and owns significant intangibles, making it incomparable. The Tribunal agreed, citing decisions (e.g., Rolls Royce Marine India Pvt. Ltd., Global Logic India Pvt. Ltd., Capita India Pvt. Ltd.) and directed the exclusion of Basiz Fund Services Pvt. Ltd. from the list of comparables.

HCCA Business Services Pvt. Ltd.:
The assessee claimed that HCCA Business Services Pvt. Ltd. is primarily engaged in payroll processing services, which are not comparable to marketing support services. The Tribunal agreed, referencing the decision in M/s Aruba Networks India Pvt. Ltd., and directed the exclusion of HCCA Business Services Pvt. Ltd. from the list of comparables.

Cyber Media India Online Ltd.:
The assessee argued for the inclusion of Cyber Media India Online Ltd., which was rejected by the TPO for being engaged in event management. The Tribunal found merit in the assessee’s argument, noting the DRP’s inclusion of Keystone Integrated Marketing Services Pvt. Ltd., and directed the inclusion of Cyber Media India Online Ltd. in the list of comparables.

ICRA Management Consulting Services Ltd.:
The assessee argued for the inclusion of ICRA Management Consulting Services Ltd., which was rejected by the DRP due to the Related Party Transactions (RPT) filter exceeding 25%. The Tribunal restored the issue to the TPO for verification of the RPT filter, directing inclusion if the RPT is indeed 14.03%.

2. Incorrect Enhancement of Cost Base for Computing the Arm’s Length Price:
The DRP directed the inclusion of depreciation on intangibles in the cost base, which the assessee argued against, stating it was already considered in the previous year and not added in subsequent years. The Tribunal restored the issue to the DRP for fresh adjudication, considering past and subsequent assessment years.

3. Levy of Interest Under Various Sections of the I.T. Act:
The levy of interest under sections 234A, 234B, 234C, and 234D was not argued by the assessee and thus dismissed as mandatory and consequential.

4. Initiation of Penalty Proceedings Under Section 271(1)(c):
The initiation of penalty proceedings under section 271(1)(c) was also not argued by the assessee and thus dismissed.

Conclusion:
The appeal filed by the assessee was allowed for statistical purposes, with key directions to exclude certain companies from the list of comparables, include Cyber Media India Online Ltd., and verify the inclusion of ICRA Management Consulting Services Ltd. The issue of the cost base enhancement was remanded to the DRP for fresh adjudication.