2019 (2) TMI 1945 - AT - Income Tax

TP Adjustment - adjustment of the Arms Length Price ALP by as per the proviso to section 92C(2) - comparability Kerala state industrial Corp Ltd. - HELD THAT - As stated on its website its team includes a core group of skilled professionals from various fields like Engineering, Management, Finance and Law. It has also to its credit a track record of attracting a commendable volume of investment to the State. The corporation has so far promoted more than 750 projects in the State and has played a vital role in the setting up of pioneering organizations such as Cochin International Airport Limited and many other companies. It is apparent that the functional profile of this company is not comparable with the assessee. Further more in the comparable companies profile there are substantial trading activities for which no segmental account has been provided for. For these reasons we are of the opinion that the function of operating an air cargo complex and the function of carrying on a support services for baggage and passenger handling at the airport are not comparable. We direct the transfer pricing officer/officer to exclude the above comparable from the comparability analysis for determining the arm's-length price of the international transactions entered into by the assessee. - Appeal of the assessee is partly allowed.

Issues Involved:
1. Validity of orders passed by the AO/DRP/TPO.
2. Adjustment to total income under Chapter-X of the Income Tax Act, 1961.
3. Use of current year data for benchmarking international transactions.
4. Selection of comparable companies by the TPO.
5. Application of a turnover filter of ?100 crores.
6. Comparison of operating margins.
7. Non-adjudication of ground no. 5 by the DRP.
8. Computation of operating margins.
9. Adjustment of the Arm's Length Price (ALP).

Issue-wise Detailed Analysis:

1. Validity of Orders Passed by AO/DRP/TPO:
The assessee contended that the orders passed by the AO, DRP, and TPO were "bad in law and void ab-initio." However, the judgment does not provide a detailed analysis on this issue, implying the tribunal did not find merit in this argument.

2. Adjustment to Total Income under Chapter-X:
The DRP sustained an adjustment of ?5,19,03,911/- to the total income. The assessee argued against this adjustment, particularly focusing on the selection of comparable companies and the data used for benchmarking.

3. Use of Current Year Data for Benchmarking:
The TPO used only current year data to compute the Profit Level Indicator (PLI) of the comparables. The assessee argued that this approach was erroneous, but the tribunal did not find substantial grounds to overturn the TPO's methodology.

4. Selection of Comparable Companies by the TPO:
The primary contention was the inclusion of Kerala State Industrial Enterprises Ltd. as a comparable. The assessee argued that the functional profile of this company, which includes operating air cargo complexes and trading activities, was not comparable to its own profile of providing ground handling services. The tribunal agreed with the assessee, noting that the functions and revenue streams of Kerala State Industrial Enterprises Ltd. were significantly different. The tribunal directed the exclusion of this company from the comparability analysis.

5. Application of a Turnover Filter of ?100 Crores:
The assessee argued that the TPO should have applied a turnover filter of ?100 crores. The tribunal did not provide a detailed analysis on this issue, possibly because it was rendered moot by the exclusion of the contested comparable.

6. Comparison of Operating Margins:
The TPO compared the operating margins of the assessee with the mean operating margins of the selected comparables. The tribunal's decision to exclude Kerala State Industrial Enterprises Ltd. from the comparables list implicitly addresses this issue, as it affects the overall comparability analysis.

7. Non-adjudication of Ground No. 5 by the DRP:
The assessee contended that the DRP did not adjudicate upon ground no. 5 raised as an objection. The tribunal did not provide a specific analysis on this issue, suggesting it did not find it compelling enough to affect the overall decision.

8. Computation of Operating Margins:
The assessee argued that the TPO/DRP did not consider the financial information/results from the annual reports of the comparable companies while computing operating margins. The tribunal's exclusion of Kerala State Industrial Enterprises Ltd. from the comparables list addresses this concern indirectly.

9. Adjustment of the Arm's Length Price (ALP):
The tribunal directed the exclusion of Kerala State Industrial Enterprises Ltd. from the comparability analysis, which would affect the ALP adjustment. Consequently, the tribunal allowed the appeal partly, directing the TPO/AO to recompute the ALP without including the contested comparable.

Conclusion:
The appeal was partly allowed, with a significant decision to exclude Kerala State Industrial Enterprises Ltd. from the list of comparables, thereby impacting the ALP adjustment. All other grounds were either general or consequential and were dismissed. The tribunal's order emphasized the importance of a precise functional profile in selecting comparables for transfer pricing analysis.

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