2018 (2) TMI 1975 - AT - Income Tax

TPA - comparable selection - HELD THAT - Referring to software development activity and applying CUP Method as the Most Appropriate Method ('MAM') companies functionaly dissimilar with that of assessee need to be deselected from final list. Selection of MAM - TPO in rejecting CUP Method adopted as the MAM by the assessee for its TP Study and adopting TNMM as the MAM for carrying out the comparability analysis - As relying on own case 2016 (6) TMI 1322 - ITAT BANGALORE we decide the issue against the assessee and confirm the order of the TPO in adopting TNMM as the MAM. Consequently, ground No.2 of the assessee's appeal is dismissed. Risk adjustment - Since the assessee has not given the computation of risk adjustment of the assessee vis- -vis the comparable companies, we hold that the assessee shall not be entitled to any risk adjustment and accordingly reverse the DRP's decision granting the assessee risk adjustment Charging of Interest u/s. 234B 234D - HELD THAT - The charging of interest is consequential and mandatory and the Assessing Officer has no discretion in the matter.

Issues Involved:
1. Selection of Most Appropriate Method (MAM) for Transfer Pricing.
2. Treatment of Foreign Exchange Gain/Loss.
3. Risk Adjustment.
4. Inclusion/Exclusion of Comparable Companies for Transfer Pricing Analysis.
5. Charging of Interest under Sections 234B and 234D.
6. Initiation of Penalty Proceedings under Section 271(1)(c).

Detailed Analysis:

1. Selection of Most Appropriate Method (MAM) for Transfer Pricing:
The assessee challenged the TPO's rejection of the Comparable Uncontrolled Price (CUP) method and the adoption of the Transactional Net Margin Method (TNMM) as the MAM. The Tribunal referred to its earlier decision in the assessee's own case for the previous year, where it was held that the CUP method was not reliable due to the lack of comparable data. Consequently, the Tribunal upheld the TPO's decision to adopt TNMM as the MAM, dismissing the assessee's ground on this issue.

2. Treatment of Foreign Exchange Gain/Loss:
The Revenue contended that the DRP erred in treating foreign exchange gain/loss as part of operating income. The Tribunal noted that the DRP had followed earlier Tribunal decisions, including the assessee's own case for a previous year, which held foreign exchange gain/loss as operational if linked to business operations. However, the Tribunal found that the factual details regarding whether the foreign exchange gain/loss was related to business operations were unclear. Therefore, the Tribunal remanded the issue back to the TPO for factual verification, allowing the Revenue's grounds partly for statistical purposes.

3. Risk Adjustment:
The Revenue challenged the DRP's direction to allow a 1% risk adjustment. The Tribunal observed that the assessee did not provide a scientific basis or computation for the risk adjustment. Consequently, the Tribunal reversed the DRP's decision and held that the assessee was not entitled to any risk adjustment, allowing the Revenue's ground on this issue.

4. Inclusion/Exclusion of Comparable Companies for Transfer Pricing Analysis:
The assessee sought the exclusion of certain companies from the TPO's list of comparables and the inclusion of others. The Tribunal remanded the issue of comparability of five companies (E-Infochips Limited, ICRA Techno Analytics Ltd., Infosys Technologies Ltd., Tata Elxsi Limited (Seg.), and Persistent Systems & Solutions Ltd.) to the DRP for examination and adjudication. The Tribunal upheld the inclusion of E-Zest Solutions Ltd. based on a recent Tribunal decision. The Tribunal also remanded the issue of comparability of seven companies (Akshay Software Technologies Ltd., Cat Technologies Ltd., LGS Global Limited, Silverline Technologies Ltd., Caliber Point Business Solutions Ltd., Helios & Matheson Information Technology Ltd., and R Systems International Ltd.) to the DRP for detailed examination. Additionally, the Tribunal admitted the assessee's additional ground seeking exclusion of L&T Infotech Limited and Persistent Systems Limited and remanded the issue to the TPO/A.O. for examination.

5. Charging of Interest under Sections 234B and 234D:
The assessee contested the charging of interest under Sections 234B and 234D. The Tribunal upheld the charging of interest, stating that it is consequential and mandatory, as upheld by the Hon'ble Apex Court in CIT v. Anjum M. H. Ghaswala. However, the Tribunal directed the Assessing Officer to recompute the interest chargeable while giving effect to its order.

6. Initiation of Penalty Proceedings under Section 271(1)(c):
The assessee's ground challenging the initiation of penalty proceedings under Section 271(1)(c) was dismissed by the Tribunal as premature.

Conclusion:
The Tribunal partly allowed both the Revenue's and the assessee's appeals for statistical purposes, remanding several issues back to the DRP and TPO for further examination and adjudication.

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