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2018 (10) TMI 1796 - AT - Income TaxTP Adjustment - Comparable selection - HELD THAT - Assessee is a company engaged in the business of providing contract Software Development Services (SWD Services) to its holding company Huawei Tech Investment company Ltd. Hong Kong which in turn is a subsidiary of Huawei China. The transaction of rendering software development services to holding company was a transaction with an Associated Enterprise (AE) and was therefore an international transaction thus companies functionally dissimilar with that of assessee need to be deselected from final list. Working capital adjustment - There would remain no comparable uncontrolled transactions for the purpose of comparison. The transfer pricing exercise would therefore fail. Therefore in keeping with the OECD guidelines endeavor should be made to bring in comparable companies for the purpose of broad comparison. Therefore the working capital adjustment as claimed by the Assessee should be allowed. We hold and direct accordingly.
Issues Involved:
1. Exclusion of certain comparable companies for determining Arm's Length Price (ALP). 2. Denial of working capital adjustment to the arithmetic mean of the profit margin of comparable companies. Detailed Analysis: 1. Exclusion of Certain Comparable Companies: The Assessee appealed against the inclusion of four out of nine comparable companies selected by the Transfer Pricing Officer (TPO) and confirmed by the Commissioner of Income Tax (Appeals) [CIT(A)]. The Tribunal considered the Assessee's reliance on a previous decision (CGI Information Systems & Management Consultants (P.) Ltd. v. Asstt. CIT) for AY 2012-13, where similar companies were excluded. (a) Infosys Ltd.: Excluded based on the Hon'ble Delhi High Court's decision in CIT v. Agnity India Technologies (P.) Ltd., recognizing Infosys as a giant risk-taking company engaged in software product development and owning intangible assets, making it incomparable to the Assessee's software development services. (b) Larsen & Toubro Infotech Ltd.: Excluded due to being a software product company without available segmental information on software development (SWD) services, as supported by the Delhi Bench of ITAT in Saxo India (P.) Ltd. v. Asstt. CIT. (c) Persistent Systems Ltd.: Excluded for similar reasons as Larsen & Toubro Infotech Ltd., being a software product company without segmental information, as per ITAT Delhi Bench in Cash Edge India (P.) Ltd. v. ITO. (d) Genesys International Corporation Ltd.: Excluded due to its engagement in Geographical Information Services and not primarily in software development services. The Tribunal noted that the TPO's conclusion lacked basis, as the business profile indicated GIS-based services with significant intangible assets, per Rule 10B(2) of the Income Tax Rules. The Tribunal rejected the Department's argument that the Assessee's lower OP/OC ratio compared to CGI Information System (supra) should influence the exclusion decision, emphasizing that comparability is based on functions, assets, and risks, not profit margins. 2. Denial of Working Capital Adjustment: The Assessee contested the CIT(A)'s decision to disallow working capital adjustments, which the TPO had initially permitted. The Tribunal reviewed the relevant provisions and OECD Transfer Pricing Guidelines, which support adjustments for differences in working capital to reflect the time value of money in competitive environments. The Tribunal criticized the CIT(A)'s reasoning for denying adjustments, including the impracticality of daily working capital levels, lack of segmental information, and differences in cost of capital. The Tribunal highlighted that the OECD guidelines advocate using interest rates applicable to commercial enterprises in the same market and that reasonable adjustments should be made to ensure comparability. The Tribunal concluded that the CIT(A)'s objections were unfounded and directed that the working capital adjustment as computed by the TPO should be allowed, as no defects were identified in the Assessee's calculations. The Tribunal emphasized that failing to allow such adjustments would render the comparable uncontrolled transactions incomparable, undermining the transfer pricing analysis. Conclusion: The Tribunal allowed the Assessee's appeal, directing the exclusion of the four contested comparable companies and the allowance of the working capital adjustment as initially computed by the TPO.
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