2021 (6) TMI 1133 - AT - Income Tax

TP Adjustment - Comparable selection - HELD THAT - Companies functionally dissimilar with that of assessee need to be deselected from final list on the basis of turnover and size. Negative working capital - We find that in the case of Software AG Bangalore Technologies (P.) Ltd. 2016 (3) TMI 1384 - ITAT BANGALORE passed by this Tribunal, it has been held that negative working capital adjustment shall not be made in case of a captive service provider as there is no risk and it is compensated on a total cost plus basis. We therefore direct Ld.TPO to compute the ALP in accordance with the directions contained in this order after affording assessee opportunity of being heard. Disallowance of deduction of ESOP expenses - HELD THAT - We hold it to be revenue expenditure, eligible to be allowed under section 37.

Issues Involved:
1. Validity of the order passed by the Deputy Commissioner of Income-tax (DCIT).
2. Errors in the Dispute Resolution Panel (DRP) and Transfer Pricing Officer (TPO) orders.
3. Upward adjustment to the transfer price for software development and marketing support services.
4. Rejection of Transfer Pricing documentation and comparability analysis.
5. Inclusion and exclusion of certain comparable companies.
6. Negative working capital adjustment.
7. Exclusion of certain companies from the marketing support services segment.
8. Inclusion of ICRA Management Consulting Services Ltd.
9. Disallowance of ESOP expenses.
10. Levy of interest under Section 234B of the Act.

Detailed Analysis:

1. Validity of the Order Passed by DCIT:
The assessee contested the order dated 21/12/2018 by the DCIT, arguing it was prejudicial and contrary to the facts and circumstances of the case. The Tribunal found that the DCIT's order was in line with the law and the facts presented, and thus, the order was upheld.

2. Errors in DRP and TPO Orders:
The assessee argued that the DRP and TPO orders were contrary to law. The Tribunal noted that the DRP and TPO had adhered to the legal standards and procedures, and thus, their orders were valid.

3. Upward Adjustment to Transfer Price:
The Tribunal observed that the DRP and TPO had made an upward adjustment of INR 26,366,448 for software development services and confirmed the adjustment of INR 6,354,054 for marketing support services. The Tribunal upheld these adjustments, noting that they were based on a detailed and appropriate analysis.

4. Rejection of Transfer Pricing Documentation and Comparability Analysis:
The Tribunal found that the DRP and TPO had rightly rejected the Transfer Pricing documentation maintained by the assessee under Section 92D of the Act, as it did not meet the required standards. The DRP and TPO conducted a fresh comparability analysis, which was deemed appropriate.

5. Inclusion and Exclusion of Certain Comparable Companies:
The Tribunal reviewed the inclusion and exclusion of certain comparable companies. It directed the exclusion of Infosys Ltd., Kals Information Systems Ltd., Sasken Communications Technologies Ltd., and Tata Elxsi Ltd. from the list of comparables based on functional dissimilarities and other criteria. This decision was supported by previous Tribunal rulings in similar cases.

6. Negative Working Capital Adjustment:
The Tribunal addressed the negative working capital adjustment, noting that the assessee did not bear any working capital risk as it provided services only to its group associates. Citing previous Tribunal decisions, it was held that negative working capital adjustments should not be made for a captive service provider. The Tribunal directed the TPO to compute the ALP without making a negative working capital adjustment.

7. Exclusion of Certain Companies from Marketing Support Services Segment:
The Tribunal directed the exclusion of Asian Business Exhibition and Conferences Ltd., HCCA Business Services Pvt. Ltd., Hindustan Housing Company Ltd., and Killick Agencies and Marketing Ltd. from the list of comparables for the marketing support services segment, as they were functionally dissimilar to the assessee. This decision was based on previous Tribunal rulings and the functional profiles of these companies.

8. Inclusion of ICRA Management Consulting Services Ltd.:
The Tribunal remanded the issue of including ICRA Management Consulting Services Ltd. back to the AO/TPO for reconsideration, in line with the observations of the Hon’ble Mumbai Tribunal in a similar case.

9. Disallowance of ESOP Expenses:
The Tribunal allowed the deduction of ESOP expenses, noting that the expenditure was incurred for promoting the business and to earn profit. It cited the Hon'ble Supreme Court's decision in Sassoon J. David & Co. (P.) Ltd. v. CIT and the Hon'ble Karnataka High Court's decision in Mysore Kirloskar Ltd. v. CIT, which supported the deduction of such expenses as legitimate business expenditure.

10. Levy of Interest under Section 234B:
The Tribunal did not specifically address the issue of interest levied under Section 234B, as the primary focus was on the transfer pricing adjustments and the comparability analysis.

Conclusion:
The appeal was partly allowed, with specific directions for the exclusion of certain comparables, the disallowance of negative working capital adjustments, and the allowance of ESOP expenses as deductible business expenditure. The Tribunal upheld the validity of the DRP and TPO orders in other respects.

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