2022 (10) TMI 1153 - AT - Income Tax

TP Adjsutment - ALP of provision of software development services - MAM selection - TPO Rejecting the segmental profitability analysis computed by the Appellant while computing the arm's length price of Appellant's provision of software development services transactions using Transactional Net Margin Method (TNMM') - HELD THAT - As relying assessee own case for the AY 2005-06 we decide the issue in favour of the assessee and direct the AO/TPO to consider the segmental profitability analysis computed by assessee with regard to software development services transactions using TNMM method. Ordered accordingly. Comparable companies selected by the Appellant in the comparability analysis - Akshay Software Technologies Ltd., Sagar Soft India Ltd. and Sasken Communication Technologies Ltd. - These companies have not been included in the comparable on the reason that these companies were not appeared in TPO search matrix and documentation was available on this comparable. In our opinion, it is appropriate to remit this issue to the file of AO to consider it afresh to see whether all the filters applied by the TPO is satisfied. Accordingly, this ground is remitted back to the file of AO for fresh consideration. Accordingly, all three comparables are remitted to AO for fresh consideration on similar lines. Turnover filter to be applied between Rs.1 crore to Rs.200 crores and if the comparable from the software development segment exceeds Rs.200 crores, the same to be excluded from the list of comparables. Companies functinally dissimilar with that of assessee need to be deselected . TP adjustment determined by AO in respect of interest on outstanding receivables - Tribunal consistently taking a view that if the credit period granted to the AE is more than 90 days that should be a TP adjustment towards notional interest @ LIBOR 2% - we remit this issue to the file of AO/TPO to pass order in conformity with the above direction of Tribunal as in the case of Swiss Re Global Business Solutions India Pvt. Ltd. Cited 2022 (1) TMI 1275 - ITAT BANGALORE by allying LIBOR 2% in this case also.

Issues Involved:

1. Validity of the Assessing Officer's order based on the Dispute Resolution Panel's directions.
2. Transfer Pricing (TP) adjustments for software development services and outstanding receivables.
3. Rejection of the assessee's transfer pricing study and comparables.
4. Application of Comparable Uncontrolled Price (CUP) method.
5. Segmental profitability analysis using Transactional Net Margin Method (TNMM).
6. Adjustment for differences in risk levels.
7. Application of arbitrary filters for comparables.
8. Rejection of certain comparables selected by the assessee.
9. Acceptance of certain comparables by the TPO.
10. Treatment of outstanding receivables as a separate international transaction.
11. Imputation of notional interest on outstanding receivables.
12. Application of SBI short-term deposit rate for computing notional interest.
13. Correct application of LIBOR rate for imputing notional interest.
14. Recomputing interest on outstanding receivables based on a 30-day credit period.
15. Addition of interest on outstanding receivables.
16. Ignoring Supreme Court and tribunal rulings.
17. Consistency with ITAT directions in earlier years.
18. Levying interest under sections 234B and 234C.
19. Initiating penalty proceedings under section 271(1)(c).

Detailed Analysis:

1. Validity of the AO's Order: The assessee contended that the AO's order based on the DRP's directions was bad in law due to incorrect appreciation of facts and wrong interpretation of law.

2. TP Adjustments for Software Development Services and Outstanding Receivables:
- The TPO made a TP adjustment of INR 5,89,33,636/- for software development services and INR 4,82,913/- for interest on delayed receivables.
- The DRP upheld the TPO's order and enhanced the adjustment for interest on delayed receivables, resulting in a total TP adjustment of INR 6,10,92,371/-.

3. Rejection of the Assessee's Transfer Pricing Study and Comparables:
- The TPO rejected the assessee's transfer pricing study and conducted a fresh search for comparables.
- The TPO used the TNMM method and selected 14 comparables, while the assessee had selected 7 comparables using the CUP method and TNMM as a supplementary method.

4. Application of CUP Method: The assessee argued that the CUP method was appropriate as internal CUP was available for price-based comparability analysis. However, the TPO did not accept this method.

5. Segmental Profitability Analysis Using TNMM:
- The assessee's segmental profitability analysis showed a net mark-up of 10.2%, while the TPO's entity-level analysis showed 3.90%.
- The Tribunal directed the AO/TPO to consider the segmental profitability analysis computed by the assessee, as accepted in earlier years.

6. Adjustment for Differences in Risk Levels: The assessee argued for an adjustment due to differences in the level of risks assumed compared to comparable companies, but this was not addressed in detail in the judgment.

7. Application of Arbitrary Filters for Comparables: The TPO applied various filters to select comparables, which the assessee contended were arbitrary and without establishing functional comparability.

8. Rejection of Certain Comparables Selected by the Assessee: The Tribunal remitted the issue of including Akshay Software Technologies Ltd., Sagar Soft India Ltd., and Sasken Communication Technologies Ltd. back to the AO for fresh consideration.

9. Acceptance of Certain Comparables by the TPO:
- The Tribunal directed the AO/TPO to exclude companies with segmental turnover exceeding INR 200 crores, following the precedent set in Autodesk India Pvt. Ltd. vs. DCIT.
- Infobeans Technologies Ltd. and Inteq Software Pvt. Ltd. were excluded from the list of comparables due to functional dissimilarities and lack of segmental details.

10. Treatment of Outstanding Receivables as a Separate International Transaction: The Tribunal held that outstanding receivables should be benchmarked independently, following the decision in Swiss Re Global Business Solutions India Pvt. Ltd. vs. DCIT.

11. Imputation of Notional Interest on Outstanding Receivables:
- The Tribunal directed the AO/TPO to apply LIBOR+2% for imputing notional interest on outstanding receivables, as per the decision in Swiss Re Global Business Solutions India Pvt. Ltd.

12. Application of SBI Short-term Deposit Rate for Computing Notional Interest: The Tribunal found that the use of the SBI short-term deposit rate was incorrect and directed the application of LIBOR+2%.

13. Correct Application of LIBOR Rate for Imputing Notional Interest: The Tribunal reiterated the application of LIBOR+2% for imputing notional interest.

14. Recomputing Interest on Outstanding Receivables Based on a 30-day Credit Period: The Tribunal did not specifically address this issue but directed the application of LIBOR+2% for interest computation.

15. Addition of Interest on Outstanding Receivables: The Tribunal directed the AO/TPO to recompute the interest on outstanding receivables based on the directions provided.

16. Ignoring Supreme Court and Tribunal Rulings: The assessee contended that the DRP and AO ignored relevant rulings, but this was not addressed in detail in the judgment.

17. Consistency with ITAT Directions in Earlier Years: The Tribunal emphasized consistency with earlier ITAT directions, particularly regarding segmental profitability analysis.

18. Levying Interest under Sections 234B and 234C: The Tribunal did not specifically address this issue in the judgment.

19. Initiating Penalty Proceedings under Section 271(1)(c): The Tribunal did not specifically address this issue in the judgment.

Conclusion: The appeal was partly allowed for statistical purposes, with directions to the AO/TPO to reconsider certain issues based on the Tribunal's findings and precedents.

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