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2019 (10) TMI 1310 - AT - Income TaxTP Adjustment - comparable selection - Functional dissimilarity - HELD THAT - Assessee is providing Information Technology Enabled Services (ITES) to its AEs, selected itself as the tested party and applied Transactional Net Margin Method (TNMM) as the Most Appropriate Method (MAM) with OP/OC as Profit Level Indicator (PLI). Acropetal being engaged in development of products and intellectual property, having no segmental profitability available and has undergone business restructuring, extra-ordinary circumstances, cannot be a suitable comparable to benchmark the international transactions qua business support services vis- -vis the taxpayer, hence ordered to be excluded. TCS E-Serve cannot be a valid comparable vis- -vis taxpayer on ground of its large volume of operations having huge brand value, lack of segmental and functional dissimilarity, hence ordered to be deleted.
Issues Involved:
1. Transfer Pricing Adjustment for Back-Office Support Services. 2. Inclusion/Exclusion of Comparable Companies in Transfer Pricing Analysis. Detailed Analysis: 1. Transfer Pricing Adjustment for Back-Office Support Services: The taxpayer, Louis Dreyfus Company India Pvt. Ltd., contested the transfer pricing adjustment made by the Assessing Officer (AO) and confirmed by the Dispute Resolution Panel (DRP) regarding the provision of back-office support services to its Associated Enterprises (AEs). The taxpayer argued that the adjustment did not satisfy the arm’s length principle as envisaged under the Income-tax Act, 1961. The taxpayer highlighted several errors in the AO's and Transfer Pricing Officer's (TPO) approach, including the disregard of the Arm's Length Price (ALP) determined by the taxpayer, the inappropriate use of current year data, and the inclusion/exclusion of certain companies in the comparability analysis. 2. Inclusion/Exclusion of Comparable Companies in Transfer Pricing Analysis: The core issue revolved around the inclusion of two specific companies, Acropetal Technologies Ltd. (segment) and TCS E-Serve Ltd., in the final set of comparables used for benchmarking the taxpayer’s international transactions. Acropetal Technologies Ltd. (Segment): - The taxpayer challenged Acropetal's inclusion on grounds of functional dissimilarity, lack of segmental profitability, and business restructuring. The Tribunal examined Acropetal’s annual report and found that the company was involved in product development and intellectual property, making it functionally dissimilar to the taxpayer, which provided routine IT-enabled services (ITES). - The Tribunal cited previous decisions (Inductis India (P.) Ltd. vs. ACIT, Agilis Information Technologies India (P.) Ltd. vs. ACIT, and Shipnet Software Solutions India vs. DCIT) to support the exclusion of Acropetal due to its involvement in extraordinary circumstances and lack of segmental profitability. TCS E-Serve Ltd.: - The taxpayer argued against the inclusion of TCS E-Serve on grounds of functional dissimilarity, significant risk-bearing, ownership of intangibles, and incomparable scale of operations. The Tribunal noted that TCS E-Serve provided high-end services and owned significant intangibles, which differentiated it from the taxpayer’s low-risk, cost-plus model. - The Tribunal referenced the Delhi High Court's decision in Avaya India Ltd. vs. ACIT, which excluded TCS E-Serve due to its large scale operations, brand value, and lack of segmental information. The Tribunal found that TCS E-Serve’s substantial revenue and brand equity contributions made it an unsuitable comparable for the taxpayer. Conclusion: The Tribunal concluded that both Acropetal Technologies Ltd. (segment) and TCS E-Serve Ltd. were not suitable comparables for the taxpayer’s back-office support services. Consequently, these companies were ordered to be excluded from the final set of comparables, leading to the allowance of the taxpayer’s appeal. The Tribunal’s decision emphasized the importance of functional similarity, segmental data availability, and appropriate risk assessment in transfer pricing analyses.
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