2021 (10) TMI 1298 - AT - Income Tax

TP Adjustment - comparable selection - functional dissimilarity - HELD THAT - Assessee is doing business of ITes segment wherein major work is of analytical support and functions with software services as only incidental to and not independent of such analytical functions, thus companies functionally dissimilar with that of assessee need to be deselected. Also if an extraordinary event has taken place by way of amalgamation that company cannot be considered as a comparable one - See BRINTONS CARPETS ASIA PVT. LTD.case 2019 (4) TMI 56 - ITAT PUNE While making the selection of comparables, the turnover filter, has to be the basis for selection. A company having turnover of ₹ 11 crores cannot be compared with a company which is having turnover of ₹ 260 crores which is more than 23 times. See M/S. PENTAIR WATER INDIA PVT. LTD. 2016 (5) TMI 137 - BOMBAY HIGH COURT

Issues Involved:
1. Transfer pricing adjustment of INR 2,08,94,594/-.
2. Rejection of transfer pricing documentation and conducting fresh search.
3. Inappropriate fresh search for identification of comparable companies.
4. Denial of risk adjustment.
5. Denial of working capital adjustment.
6. Incorrect imputation of notional interest (dismissed as not pressed).

Issue-wise Detailed Analysis:

1. Transfer Pricing Adjustment of INR 2,08,94,594/-:
The appellant contested the transfer pricing adjustment made by the Assessing Officer (AO) and upheld by the Dispute Resolution Panel (DRP). The primary dispute involved the comparability of selected companies in the ITes segment.

2. Rejection of Transfer Pricing Documentation and Conducting Fresh Search:
The appellant's transfer pricing documentation was rejected by the Transfer Pricing Officer (TPO) and DRP, leading to a fresh search for comparable companies. The appellant argued that the TPO rejected their documentation without providing cogent reasons and applied inappropriate quantitative filters. The TPO considered certain filters like Net Fixed Asset (NFA) more than 200% of sales and R&D cost of 3% of sales as inappropriate without justification. Additionally, the TPO applied a 75% ITes service income filter, which he initially rejected from the appellant's study.

3. Inappropriate Fresh Search for Identification of Comparable Companies:
The appellant challenged the fresh search process for comparables conducted by the TPO. The appellant argued that relevant information was not made available to them, preventing a realistic opportunity to be heard. The TPO rejected several companies based on inappropriate filters and included functionally dissimilar companies. The DRP upheld these findings without addressing all objections raised by the appellant.

4. Denial of Risk Adjustment:
The appellant argued that the DRP and TPO erred in not granting risk adjustments for differences in risk borne by comparable companies vis-a-vis the appellant.

5. Denial of Working Capital Adjustment:
The appellant contended that the DRP and TPO failed to grant working capital adjustment, which could have nullified the impact of different levels of working capital deployed by the appellant and comparable companies.

6. Incorrect Imputation of Notional Interest (Dismissed as Not Pressed):
The appellant initially contested the imputation of notional interest but later dismissed this ground as not pressed.

Judgment Analysis:

(A) SPI Technologies India Pvt. Ltd.:
The appellant argued that SPI Technologies should be excluded due to an extraordinary event of amalgamation during the relevant assessment year. The Tribunal, relying on judicial precedents, held that companies undergoing extraordinary events like amalgamation cannot be considered comparable. The Tribunal directed the exclusion of SPI Technologies from the final set of comparables.

(B) AGS Health Pvt. Ltd.:
The appellant contended that AGS Health should be excluded due to high related party transactions exceeding 25%. The Tribunal found merit in this argument, noting that AGS Health earned 100% of its revenue from related parties, thus failing the RPT filter. The Tribunal directed the exclusion of AGS Health from the final set of comparables.

(C) Infosys BPO Ltd.:
The appellant argued that Infosys BPO was not comparable due to functional differences and high turnover. The Tribunal, following the jurisdictional High Court's decision, held that a company with a significantly higher turnover cannot be compared with the appellant. The Tribunal directed the exclusion of Infosys BPO from the final set of comparables.

Tech Mahindra BSPL:
The appellant did not press the ground related to Tech Mahindra BSPL, and it was dismissed as not pressed.

Conclusion:
The Tribunal partly allowed the appeal, directing the exclusion of SPI Technologies, AGS Health, and Infosys BPO from the final set of comparables while dismissing other grounds as not pressed. The order was pronounced on 25th October 2021.

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