2016 (3) TMI 1442 - AT - Income Tax

TP Adjustment - comparable selection - HELD THAT - Companies functionally dissimilar with that of assessee deselected. Exclusion on the abnormal profits - As seen from the order of CIT(A) the reasons for rejection are that they are having negative margins / losses. Therefore, grounds raised by the Revenue are not maintainable. Hence, rejected. Foreign Exchange Gain/Loss as operating in nature - HELD THAT - This issue is held in favour of assessee and against Revenue in all the cases as the foreign exchange gain/loss is accruing as part of business activity and on the billing/billed amount. So, the same is rightly treated as part of operating income. M/S. CISCO SYSTEMS (INDIA) PRIVATE LTD. 2014 (11) TMI 849 - ITAT BANGALORE , SAP LABS INDIA (P.) LTD. 2010 (8) TMI 676 - ITAT, BANGALORE AND M/S. GEM PLUS JEWELLERY INDIA LTD. 2010 (6) TMI 65 - BOMBAY HIGH COURT . Deduction u/s 10A - exclusion of Telecommunication Charges for export turnover and total turnover - HELD THAT - AO excluded the Telecommunications charges and Travelling charges from estimated turnover. Ld.CIT(A) following the Co-ordinate Bench decision has directed the AO to exclude the same from total turnover as well. This direction is as per the principles on the subject. The jurisdictional High Court in the case of CIT Vs. Tata Elxsi 2011 (8) TMI 782 - KARNATAKA HIGH COURT has held that whatever is excluded from estimated turnover should also be excluded from total turnover. The direction of Ld.CIT(A) is upheld. Grounds are rejected.

Summary

Issues involved:
1. Transfer pricing adjustments based on comparable companies.
2. Exclusion of specific companies as comparables.
3. Adjustment of deductions under section 10A.
4. Treatment of foreign exchange gains/losses.
5. Exclusion of specific expenses from turnover calculations.

Transfer Pricing Matters:
The appeal by Revenue challenges the order of the Ld. Commissioner of Income Tax (Appeals) regarding the rejection of the diminishing revenue filter and exclusion of certain companies as comparables. The Ld. CIT(A) considered various factors in the transfer pricing analysis, including the turnover filter, diminishing revenue filter, different year ending filter, and the treatment of consolidated financial statements. The Ld. CIT(A) upheld the rejection of companies with abnormally high profits and negative operating margins. Additionally, the Ld. CIT(A) directed the AO to include foreign exchange gains/losses in operational costs for margin computation.

Corporate Tax Matters:
Regarding corporate tax issues, the Ld. CIT(A) followed the judgment in CIT Vs. Tata Elxsi Ltd. to reduce certain expenses from both export and total turnover for the purpose of computing deductions under section 10A. The Revenue contested the exclusion of specific comparables and abnormal profit companies, but the grounds were rejected based on detailed analysis and precedents from Co-ordinate Benches.

Detailed Analysis of Excluded Comparables:
The exclusion of specific comparables was supported by the analysis done by Co-ordinate Benches in previous cases. Companies like Infosys BPO Limited, Wipro Limited, Accentia Technologies Limited, Eclerx Services Limited, Genesys International Corporation Limited, Mold-Tek Technologies Limited, and Coral Hubs Limited were excluded based on factors such as turnover, brand value, mergers, acquisitions, and business activities. The reasons for exclusion were in line with established principles and past judgments.

Treatment of Foreign Exchange Gains/Losses:
The issue of treating foreign exchange gains/losses as operating in nature was decided in favor of the assessee, following precedents that consider such gains/losses as part of business activities. The treatment of foreign exchange gains/losses as operating income was supported by cases like CISCO Systems (India) P. Ltd. and SAP Labs India P. Ltd.

Exclusion of Specific Expenses from Turnover:
The Ld. CIT(A) directed the exclusion of telecommunication charges and other specific expenses from both export and total turnover, aligning with principles established in previous judgments. The direction to exclude these expenses from total turnover was upheld based on the decision in CIT Vs. Tata Elxsi, ensuring consistency in turnover calculations.

Conclusion:
The Revenue's appeal was dismissed, affirming the Ld. CIT(A)'s order on transfer pricing adjustments, exclusion of comparables, adjustment of deductions under section 10A, treatment of foreign exchange gains/losses, and exclusion of specific expenses from turnover calculations. The judgment provided detailed reasoning for each issue, considering legal principles, precedents, and thorough analysis of the facts presented.