2018 (1) TMI 1566 - AT - Income Tax

TP Adjustment - Selection of comparable - whether Government companies can be taken as comparables or not ? - HELD THAT - As decided in own case 2017 (5) TMI 971 - ITAT MUMBAI Government companies cannot be taken as comparables. No addition since adjustment would fall within tolerance range of 5% - From the submissions made by learned AR we noticed that the adjudication of other grounds would be academic in nature since according to learned AR even if those grounds are decided in favour of the Revenue the same would not result in any addition. In view of the same without deliberating on those grounds we decide them in favour of the Revenue.

Summary

Issues:
- Transfer pricing adjustment made by the AO/TPO
- Exclusion of Government companies from benchmarking exercise
- Inclusion of specific companies as comparables
- Tolerance range of 5% for adjustments

Transfer Pricing Adjustment:
The appeal involved the Revenue challenging the deletion of an addition made by way of transfer pricing adjustment for the assessment year 2010-11. The Revenue contended that the CIT(A) erred in deleting the adjustment to ALP made by the AO/TPO. The grounds raised by the Revenue included objections related to the acceptance of certain comparable companies and the rejection of others. The Revenue argued against the decision to delete the addition, emphasizing the importance of considering operational parameters and turnover for comparability.

Exclusion of Government Companies:
One of the key issues was the exclusion of Government companies, namely M/s. Engineering India Limited, M/s. Rites Limited, and M/s. WAPCOS Limited, from the benchmarking exercise. The Revenue challenged the CIT(A)'s decision based on previous judgments and the Tribunal's stance in the assessee's own case for A.Y. 2008-09. The Tribunal upheld the view that Government companies should not be considered as comparables, citing various decisions and emphasizing the non-profit motive and social obligations influencing contracts with Public Sector undertakings.

Inclusion of Specific Companies as Comparables:
The appeal also addressed the inclusion of specific companies as comparables, such as M/s Accuspeed Engineering Design Services Limited and M/s Cades Digitech Private Limited. The arguments revolved around turnover, operational parameters, and negative net worth of certain companies, with the Revenue contesting the comparability of these entities with the assessee company. The CIT(A) decision on the acceptance or rejection of these comparables was a point of contention during the hearing.

Tolerance Range of 5% for Adjustments:
The issue of the tolerance range of 5% for adjustments was raised during the proceedings. The learned AR argued that even if other grounds of the Revenue were decided in their favor, it would not result in additional adjustments since they would fall within the tolerance range. The Tribunal considered this argument and decided in favor of the Revenue without detailed deliberation on those grounds. The cross objection filed by the assessee was dismissed during the hearing.

In conclusion, the appeal filed by the Revenue was partly allowed, and the cross objection filed by the assessee was dismissed. The Tribunal upheld the decision regarding the exclusion of Government companies from the benchmarking exercise, citing consistency with previous judgments and the Tribunal's stance in the assessee's own case. The detailed analysis of comparables, transfer pricing adjustments, and the tolerance range of 5% provided a comprehensive overview of the issues addressed in the judgment.