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2017 (3) TMI 1302 - AT - Income TaxTPA - selection of comparable - Held that - Assessee is a part of Siemens Worldwide Group and engaged in the business of ITES services relating to back office operation on contract basis to its Associated Enterprises (AEs). Thus the assessee is a BPO and providing data services in respect of accounts and finance to its overseas group companies and companies having different business model of dissimilar functionality as that of assessee need to be excluded from final list of comparable. Exclusion of expenditure incurred in foreign currency from export turnover while computing deduction under Section 10A - Held that - We direct the AO to exclude the above mentioned expenses both from the export turnover as well as from the total turnover while calculating deduction u/s 10A of the Act. SEE CIT v. Tata Elxsi Ltd. 2011 (8) TMI 782 - KARNATAKA HIGH COURT Carry forward of losses of STPI unit denied before computing the deduction of the other STPI unit under Section 10A -Held that - By following the decision in the case of Yokogawa India Ltd. (2011 (8) TMI 845 - Karnataka High Court) as well as the decision Mindteck India Ltd. ( 2015 (4) TMI 56 - ITAT BANGALORE), we decide this issue in favour of the assessee and direct the Assessing Officer to allow the carry forward of losses of the one unit without setting off against the profit of the other unit for the purpose of computing the deduction under Section 10A of the Act.
Issues Involved:
1. Validity of the assessment order. 2. Transfer Pricing Adjustment regarding comparability of certain companies. 3. Deduction under Section 10A/10AA of the Income Tax Act. 4. Carry forward/set off of current year business loss. 5. Levy of interest under Section 234D of the Act. Detailed Analysis: 1. Validity of the Assessment Order: The assessee argued that the assessment order dated October 11, 2012, passed pursuant to the directions of the Dispute Resolution Panel (DRP), was vitiated as the DRP erred both on facts and in law by confirming the addition proposed by the Assessing Officer (AO). This ground was considered general and required no specific adjudication. 2. Transfer Pricing Adjustment: The primary issue was the comparability of certain companies selected by the Transfer Pricing Officer (TPO) for benchmarking international transactions under the Transactional Net Margin Method (TNMM). The assessee contested the inclusion of nine companies, arguing they were not functionally comparable. The Tribunal admitted the additional ground for adjudication and analyzed the functional comparability of each company as follows: - Accentia Technologies Ltd. (Seg.): The Tribunal noted the employee cost was only 11.89%, indicating a different business model. The company was engaged in medical transcription, coding, billing, and receivable management, making it functionally incomparable. The Tribunal directed the TPO/AO to verify the impact of any extraordinary events like merger or amalgamation on the ITES segment. - Acropetal Technologies Ltd. (Seg.): The company provided engineering design services, classified as KPO services, and thus was not comparable to the BPO services of the assessee. The Tribunal directed the TPO/AO to exclude this company from the comparables. - Coral Hubs Ltd.: The employee cost was only 2.93%, and the company outsourced most of its work, making it functionally incomparable. The Tribunal directed the TPO/AO to exclude this company. - Eclerx Services Ltd.: Engaged in high-end services like data analytics and operation management, the company was classified as KPO, not comparable to the assessee's BPO services. The Tribunal directed the TPO/AO to exclude this company. - Genesys International Corporation Ltd.: Provided geographical information services and photogeometry, classified as KPO services. The Tribunal directed the TPO/AO to verify the functional details and comparability. - Crossdomain Solutions Ltd.: Engaged in KPO activities and product development, making it functionally incomparable. The Tribunal directed the TPO/AO to verify the functional comparability. - Infosys BPO Ltd.: Owned significant intangibles and brand value, making it functionally incomparable. The Tribunal directed the TPO/AO to exclude this company. - Mold-Tek Technologies Ltd.: Engaged in engineering design services and did not satisfy the export earnings filter. The Tribunal directed the TPO/AO to verify the functional comparability. - Wipro Ltd.: Owned significant intangibles, IPRs, and brand name, making it functionally incomparable. The Tribunal directed the TPO/AO to exclude this company. 3. Deduction under Section 10A/10AA: The Tribunal directed the AO to exclude expenses incurred in foreign currency from both export turnover and total turnover while calculating the deduction under Section 10A, following the Karnataka High Court's decision in CIT v. Tata Elxsi Ltd. 4. Carry Forward/Set Off of Current Year Business Loss: The Tribunal allowed the assessee's claim for carrying forward the losses of one STPI unit without setting off against the profit of another unit for computing the deduction under Section 10A, following the Karnataka High Court's decision in CIT v. Yokogawa India Ltd. 5. Levy of Interest under Section 234D: The Tribunal did not provide a specific adjudication on this ground, implying it was not a major point of contention in the appeal. Conclusion: The appeal was partly allowed, with the Tribunal directing the AO/TPO to recompute the Arm's Length Price (ALP) and the deduction under Section 10A based on the revised set of comparables and the exclusion of certain expenses. The Tribunal's directions ensured that the functional comparability and the legislative intent behind Section 10A were appropriately considered.
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