2021 (10) TMI 1382 - AT - Income Tax

TP Adjustment - comparable selection - HELD THAT - We find no merit in the assessee's former twin substantive grounds since the DRP herein has directed exclusion of M/s. Infosys BPO Limited not only on the basis of turnover but due to its brand value, diversified activity as other functional dissimilarity as well. This tribunal coordinate bench decisions in assessee's cases itself for Assessment Year 2008-09 and 2009-10 have also directed M/s. Infosys BPO Limited s exclusion in the very segment. And that the Revenue has not been able to pin point any change in the corresponding facts in all these assessment years. We therefore uphold learned DRP s direction ordering exclusion of M/s. Infosys BPO Limited from the array of comparables. Excluding M/s. Jeevan Scientific Technology Limited on the ground that it had failed to satisfy the turnover filter despite the fact that the said entity had derived income both from BPO operation as well as ERP segment - We find that the Revenue s instant arguments are against the facts on record wherein it has been found that this entity had derived income of Rs.79.21 lakhs form BPO operation only and no revenue from ERP segment as against the turnover limit of Rs.1 Crore set by the TPO in his analysis. We therefore decline the Revenue instant third substantive ground as well. Exclusion of comparables on functional dissimilarity. Disallowance of overhead and trademark licence fees - not filed any objection corresponding details despite the DRP s remand directions to this effect - HELD THAT - The assessee has placed before us the corresponding invoices along with the AO s consequential order for Assessment Year 2003-04 and 2009-10 not making any such disallowance in light of the corresponding agreement and invoices. Faced with this situation, we deem it appropriate to restore the instant issue back to the AO for his afresh factual verification as per law within three effective opportunities of hearing subject to the condition that the assessee itself shall file all the documentary evidence by electronic mode as well as registered post. Capital expenditure on software license fees - disallowance on the ground that it the assessee had not filed any objections to this effect before the DRP - HELD THAT - CIT-DR fails to dispute that the DRP s detailed discussion regarding assessee's objection No.10 in para 2.10 page 14 had clearly directed the AO to grant depreciation @ 60% in view of the tribunal's findings in preceding assessment years. We therefore allow the assessee's instant substantive ground in principle and leave it open for the AO to frame consequential computation as per law. Disallowing deduction u/s. 10A - expenditure towards software lincence fee disallowed in the assessment order relating to STPI unit of the company - HELD THAT - The same is admitted being an alternate plea; without prejudice to the foregoing third substantive ground, and restored back to the Assessing Officer as per law in light of the relevant facts and the corresponding factual position in preceding and succeeding assessment years.

Summary

Issues:
1. Exclusion of entities from comparables for transfer pricing analysis
2. Inclusion of entities in comparables for transfer pricing analysis
3. Disallowance of overhead and trademark license fees
4. Disallowance of capital expenditure on software license fees
5. Deduction under section 10A of the Act on disallowed expenditure

Analysis:

1. The judgment dealt with the exclusion of entities from comparables for transfer pricing analysis. The Revenue appealed against the exclusion of M/s. Infosys BPO Ltd. as a comparable entity, arguing that high turnover should not automatically render it ineligible for inclusion. The tribunal upheld the exclusion based on brand value and functional dissimilarities. The Revenue's arguments regarding other excluded entities like Jeevan Scientific Technology Limited and TCS E-Serve Limited were also rejected based on factual findings and functional dissimilarities.

2. The judgment also addressed the inclusion of entities in comparables for transfer pricing analysis. The Revenue's appeal to include TCS E-Serve Limited was declined due to functional dissimilarities with the assessee's segment. The tribunal upheld the exclusion of Mastiff Technology Pvt. Ltd. and E4e Healthcare Business Services Pvt. Ltd. based on extraordinary situations affecting their margins and business risks in the IT Enabled Services segment.

3. Regarding the disallowance of overhead and trademark license fees, the assessee's challenge was partially allowed. The tribunal ordered a fresh factual verification by the Assessing Officer based on submitted invoices and agreements. The issue was restored for further examination.

4. The judgment also addressed the disallowance of capital expenditure on software license fees. The assessee's challenge to this disallowance was allowed in principle, with the tribunal leaving it open for the Assessing Officer to frame consequential computation as per law.

5. Lastly, the judgment considered the deduction under section 10A of the Act on disallowed expenditure towards software license fees. The assessee's additional ground was admitted as an alternate plea and restored back to the Assessing Officer for further examination in light of relevant facts and legal provisions. The cross appeal was partly allowed for statistical purposes.

In conclusion, the Revenue's appeal was dismissed, the assessee's Cross Objection was dismissed as infructuous, and the assessee's cross appeal was partly allowed for statistical purposes. The judgment provided detailed reasoning for each issue and upheld the decisions based on factual findings and legal interpretations.