2019 (8) TMI 1479 - AT - Income Tax

TP Adjustment - grievance of revenue is in respect of cherry picking on-site revenue filter by DRP suo moto, and selectively applying on certain comparables, thereby excluding them - HELD THAT - We agree with contention raised by Ld.CIT DR that no new filter can be applied subsequent to Ld.TPO completing TP analysis. However, on perusal of observations by DRP to exclude Acropetal Technologies Ltd., L T Infotech Ltd., primarily on functional dissimilarities and absence of segmental information Comparable selection - Comparables not functionally similar with that of assessee, who is a contract service provider, working on a cost plus business model need to deselected. RS software (India) Ltd, was excluded by DRP by applying 'on-site revenue filter' - Both parties do not have objection for inclusion of this company. We are therefore of the view that, this company should be included in the list of comparables. Companies rejected on service income being less than 75%. Company having brand value as well as intangible assets cannot be compared with an ordinary entity who provide captive services. Disallowance on account of leave encashment - HELD THAT - As decided in Global e-business operations (P.) Ltd. 2017 (1) TMI 1618 - ITAT BANGALORE When a challenge was made before the Hon'ble Calcutta High Court in Exide Industries Ltd and another v. UOI others 2007 (6) TMI 175 - CALCUTTA HIGH COURT it struck down section 43B(f) being arbitrary, unconscionable and dehors the Apex Court decision in the case of Bharath Earth Movers Ltd (2000 (8) TMI 4 - SUPREME COURT) as the amendment did not disclose the reasons which would be consistent with the provisions of the Constitution and the laws of the land and not for the sole object of nullifying the apex Court decision. On SLP the SC held that Pending hearing and final disposal of the Civil Appeal, Department is restrained from recovering penalty and interest which has accrued till date. It is made clear that as far as the outstanding interest demand as of date is concerned, it would be open to the Department to recover that amount in case civil appeal of the Department is allowed - issue is remitted back to the AO to decide the issue based on the outcome of the Hon'ble Supreme Court's decision in the above case. Ordered accordingly Disallowance of software expenditure and electricity deposits by Ld. AEO - Allowable revenue expenses - AR submitted that assessee has substantial and corroborated of evidences to establish that software purchased, did not provide any enduring benefit to assessee, and therefore has to be treated as revenue expenditure and for electricity deposits, assessee submitted that these were actual right of deposits claimed for which provision was created in earlier years - HELD THAT - On perusal of the orders passed by authorities below it is observed that these details relied upon by Ld.AR has not been verified by Ld.AO. We therefore direct Ld. AO to revisit these issues having regards to the evidences filed by assessee and to consider the claim of assessee as per law.

Summary

Issues Involved:
1. Directions of the Dispute Resolution Panel (DRP) regarding comparables.
2. Application of "onsite revenue filter."
3. Exclusion of specific companies due to significant onsite revenue.
4. Exact comparability under TNMM method.
5. Deletion of M/s E-infochips as a comparable.
6. Rejection of Infosys Technologies Ltd. as a comparable.
7. Imposition of conditions beyond law by DRP.
8. Liability towards leave encashment as a business liability.
9. Disallowance of software expenses, provision for leave encashment, and write-off of provision for electricity deposits.
10. Additional grounds raised by the assessee.

Detailed Analysis:

1. Directions of the Dispute Resolution Panel (DRP) regarding comparables:
The DRP's directions were challenged on the grounds that certain companies, such as M/s RS Software Pvt. Ltd., M/s Acropetal Technologies Ltd., and M/s L&T Infotech Ltd., were excluded despite satisfying the qualitative and quantitative filters adopted by the Transfer Pricing Officer (TPO). The Tribunal agreed that the DRP's selective application of the "onsite revenue filter" was not appropriate and that the comparables should be reconsidered.

2. Application of "onsite revenue filter":
The Tribunal noted that the DRP applied the "onsite revenue filter" selectively to certain comparables, which was not in accordance with the procedures laid down under the law. The Tribunal emphasized that once the TPO completes the transfer pricing analysis, no new filters should be applied subsequently. However, the Tribunal also acknowledged that the DRP excluded certain comparables based on functional dissimilarities and absence of segmental information, making the issue academic.

3. Exclusion of specific companies due to significant onsite revenue:
The DRP excluded companies like M/s RS Software Pvt. Ltd., M/s Acropetal Technologies Ltd., and M/s L&T Infotech Ltd. due to significant onsite revenue. The Tribunal found that these companies were not functionally similar to the assessee, who is a contract service provider working on a cost-plus business model. The Tribunal directed the TPO to include RS Software India Ltd. as both parties had no objection to its inclusion.

4. Exact comparability under TNMM method:
The Tribunal discussed the requirement of seeking similar comparable companies under the TNMM method rather than exact comparability. The Tribunal agreed with the DRP's approach of excluding certain comparables based on functional dissimilarities and lack of segmental information.

5. Deletion of M/s E-infochips as a comparable:
The DRP excluded M/s E-infochips Ltd. on the ground that it failed the service income filter of less than 75% of the sales. The Tribunal upheld this exclusion, citing previous decisions where the company was excluded due to the absence of segmental information and major fluctuations in profits.

6. Rejection of Infosys Technologies Ltd. as a comparable:
The DRP excluded Infosys Technologies Ltd. due to its high turnover and diversified activities, which made it not comparable to the assessee, a small captive service provider. The Tribunal upheld this exclusion, referencing the decision in Agnity India Technologies (P.) Ltd. v. ITO, where it was held that a company with brand value and intangible assets cannot be compared with an ordinary entity providing captive services.

7. Imposition of conditions beyond law by DRP:
The Tribunal noted that the DRP's imposition of conditions beyond what is required by law was not appropriate. The Tribunal emphasized that only differences likely to materially affect the margin should be acknowledged.

8. Liability towards leave encashment as a business liability:
The DRP held that the liability towards leave encashment was a business liability, following the ratio laid down by the Supreme Court in CIT v. Bharat Earth Movers Ltd. The Tribunal set aside this issue to the Assessing Officer (AO) to dispose of based on the outcome of the Supreme Court's decision.

9. Disallowance of software expenses, provision for leave encashment, and write-off of provision for electricity deposits:
The AO disallowed these expenses, but the DRP deleted the disallowances. The Tribunal directed the AO to revisit these issues, verifying the details provided by the assessee and considering the claims as per law.

10. Additional grounds raised by the assessee:
The assessee raised additional grounds for the exclusion and inclusion of certain comparables. The Tribunal allowed these additional grounds, noting that they arose from the records and were objected to before the DRP. The Tribunal directed the AO/TPO to verify the comparables based on the details provided by the assessee.

Conclusion:
The Tribunal partly allowed the appeals filed by both the revenue and the assessee. The Tribunal directed the AO/TPO to reconsider certain comparables, verify the details provided by the assessee, and dispose of the issues based on the Supreme Court's decision regarding leave encashment. The Tribunal emphasized the importance of functional similarity and proper application of filters in transfer pricing analysis.