2021 (4) TMI 1290 - AT - Income Tax

TP Adjustment - comparability selection - HELD THAT - We are informed during the course of hearing that this tribunal's coordinate bench order in assessee s case 2021 (1) TMI 25 - ITAT HYDERABAD has directed the departmental authorities to exclude the very five comparables M/s Tata Elxsi Limited, M/s Infobeans Technologies Ltd., Persistent Systems Ltd, Infosys Ltd., M/s Cybage Software Private Ltd.for the purpose of determining the ALP in the corresponding segment of development of software and ITES. Working capital adjustment - As relying on GXS INDIA TECHNOLOGY CENTRE PVT. LTD 2021 (1) TMI 775 - ITAT BANGALORE assessee s failure in placing on record the relevant working capital particulars only led to the impugned disallowance than on merits. We thus accept this 7th substantive ground for statistical purposes and direct the TPO to consider assessee s working capital adjustment as per law. ALP adjustment in the nature of interest on receivables due to its overseas Associated Enterprises AEs - HELD THAT - It transpires that the learned lower authorities had adopted SBI short term fixed deposit rate on assessee s international transactions without doing any benchmarking as per market rates in the very segment by referring to comparable entities. We accept this instant substantive ground on this count alone and direct the TPO to delete the impugned adjustment. Deemed international transaction - ALP adjustment in respect of recoveries made from resident associated enterprise M/s CDK Global India Private Limited - HELD THAT - This last issue of deemed international transaction deserves a fresh innings before the TPO. We accordingly deem it appropriate to restore the same back to the file of TPO for his adjudication as per law within three effective opportunities of hearing. The assessee or its authorized representative shall appear before the TPO on or before 31.08.2021 with all necessary papers/ verification of records at its own risk and responsibility in the specified number of opportunities, failing which our remand directions shall stand vacated.

Issues Involved:
1. Transfer Pricing Adjustment of ?43,93,92,803.
2. Inclusion of Functionally Dissimilar Comparables.
3. Rejection of Functionally Comparable Companies.
4. Incorrect Computation of Margins.
5. Rejection of Transfer Pricing Analysis.
6. Provision for Bad and Doubtful Debts.
7. Working Capital Adjustment.
8. Risk Adjustment.
9. Interest on Outstanding Receivables.
10. Payments Received Within Due Dates.
11. Facilitation Cost of CDK Global (India) Private Limited.
12. Levy of Interest.

Detailed Analysis:

1. Transfer Pricing Adjustment of ?43,93,92,803:
The appeal arises from the Deputy Commissioner of Income Tax's assessment, which included an arm's length price (ALP) adjustment of ?43,93,92,803. The assessee contested this adjustment, arguing it was wholly unjustified.

2. Inclusion of Functionally Dissimilar Comparables:
The assessee argued that the Transfer Pricing Officer (TPO) and the Dispute Resolution Panel (DRP) erred in including companies that were functionally dissimilar, engaged in product development, and had significant brand presence and intangibles. These companies included Tata Elxsi Limited, Rheal Software Private Limited, Mindtree Limited, and others. The tribunal noted that in the assessee's case for the previous assessment year, similar companies were excluded. Therefore, the tribunal restored this issue to the TPO for reconsideration in light of the previous year's directions.

3. Rejection of Functionally Comparable Companies:
The assessee contended that the TPO and DRP erred in rejecting companies that were functionally comparable to the assessee, such as SagarSoft (India) Limited, Akshay Software Technologies Limited, and others. However, this ground was not pressed by the assessee at the outset.

4. Incorrect Computation of Margins:
The assessee claimed that the TPO incorrectly computed the margins of certain comparable companies. This ground was also not pressed by the assessee.

5. Rejection of Transfer Pricing Analysis:
The assessee argued that the TPO and DRP erred in rejecting the transfer pricing analysis prepared by the assessee. This ground was also not pressed by the assessee.

6. Provision for Bad and Doubtful Debts:
The assessee contended that the TPO and DRP erred in considering the provision for bad and doubtful debts as a non-operating expenditure. This ground was not pressed by the assessee.

7. Working Capital Adjustment:
The assessee argued that the lower authorities should have granted a working capital adjustment. The tribunal accepted this ground for statistical purposes and directed the TPO to consider the working capital adjustment as per law, noting that the failure to provide relevant working capital particulars led to the disallowance.

8. Risk Adjustment:
The assessee contended that the TPO and DRP erred in not allowing a risk adjustment. This ground was not pressed by the assessee.

9. Interest on Outstanding Receivables:
The assessee contested the ALP adjustment related to interest on receivables from its overseas Associated Enterprises (AEs). The tribunal noted that the lower authorities adopted the SBI short-term fixed deposit rate without benchmarking against market rates. The tribunal directed the TPO to delete the impugned adjustment.

10. Payments Received Within Due Dates:
The assessee argued that the TPO did not acknowledge payments received within the due date as per the agreement. This ground was considered alongside the interest on outstanding receivables and was addressed by directing the deletion of the impugned adjustment.

11. Facilitation Cost of CDK Global (India) Private Limited:
The assessee contended that the facilitation cost incurred for the transition of the dealer services division was wrongly considered as the assessee's cost, leading to an imputed mark-up. The tribunal found that the TPO considered this transaction as a deemed international transaction and directed a fresh adjudication by the TPO.

12. Levy of Interest:
The assessee argued that the levy of interest by the lower authorities was unjustified. This ground was not separately addressed in detail but was impliedly covered in the overall directions for fresh adjudication.

Conclusion:
The appeal was partly allowed with directions for fresh adjudication by the TPO on specified grounds, particularly regarding the inclusion of functionally dissimilar comparables, working capital adjustment, interest on outstanding receivables, and facilitation costs. The tribunal emphasized judicial consistency and remanded several issues for reconsideration in light of previous decisions and legal standards.

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