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2017 (3) TMI 1533 - AT - Income TaxTPA - MAM - Held that - Both the assessee and the TPO had applied TNMM method to benchmark the international transactions and PLI of assessee for the said segment by applying OP/OC was worked out at 3.66% (or 3.67%). The TPO had calculated the margins of comparables and the arithmetic mean of final list of comparables worked out to 8.54%. Proviso to section 92C(2) of the Act provides a benefit to the assessee that no transfer pricing adjustment would be made in case the arm s length price determined by the TPO was within range of /- 5% of the actual revenue from the international transaction. The perusal of the order of TPO and the details filed by the assessee reflect that the margins of international transaction relating to manufacturing segment was were within /- 5% of actual revenue earned from the manufacturing segment and hence we direct the Assessing Officer to verify the claim of assessee and delete the addition. The grounds of appeal No.2 and 3 raised by the assessee are thus decided on preliminary issue. Selection of comparables - Held that - The assessee had provided support services to its associate enterprises i.e. supply based development services wherein the revenue earned was 9, 34, 38, 095/-. Further the assessee had made provision of IT services to the extent of 59, 64, 133/- which constitute IT and other business support services. Thus companies dissimilar with that of assessee need to be rejected as comparable. Adjustments made to application engineering services segment - Held that - The application engineering services was comprised of customization of business of turbocharges to particular vehicle models of different customers where the best design of turbocharges is already developed and patented and the assessee provides services relating to customization of the best design as per the requirements of customer. Thus companies dissimilar with that of assessee need to be rejected as comparable.
Issues Involved:
1. Transfer pricing adjustment of INR 13,84,17,150. 2. Rejection of combined operating margins of HTI and HTTI. 3. Assignment fees considered as a part of operating cost of HTI. 4. Inclusion of a non-comparable company in the final set of comparable companies. 5. Selection of companies having super normal profits. 6. Inclusion of a functionally non-comparable company earning extraordinary margins. 7. Rejection of Ace Software Exports Ltd. as a comparable company. 8. Non-consideration of contemporaneous data. 9. Denial of adjustment for risk differences. 10. Denial of benefit of +/-5% range while computing the adjustment amount. 11. Initiation of penalty proceedings under section 271(1)(c) of the Act and levying interest under sections 234B, 234C, and 234D of the Act. 12. Additional grounds of appeal regarding working capital adjustment, benefit of variation of +/- 5%, and adjustment should be restricted to international transactions with AE. Detailed Analysis: 1. Transfer Pricing Adjustment of INR 13,84,17,150: The assessee challenged the transfer pricing adjustment made by the TPO, which was upheld by the DRP. The TPO had cumulated various international transactions and determined the PLI of the transactions pertaining to the manufacturing segment. The assessee argued that the difference between the revenue earned and the arm's length price determined by the TPO did not exceed 5%, thus falling under the proviso to section 92C(2) of the Act. The Tribunal directed the Assessing Officer to verify this claim and delete the addition if the margins were within the +/- 5% range. 2. Rejection of Combined Operating Margins of HTI and HTTI: The Tribunal did not specifically address this issue as it was covered under the broader decision regarding the transfer pricing adjustment in the manufacturing segment. 3. Assignment Fees Considered as a Part of Operating Cost of HTI: The Tribunal did not specifically address this issue separately, as it was part of the overall decision on the manufacturing segment's transfer pricing adjustment. 4. Inclusion of a Non-Comparable Company in the Final Set of Comparable Companies: The assessee argued against the inclusion of ICRA Online Ltd. in the final set of comparables, claiming it was functionally different and had an exceptional year of operations with super normal profits. The Tribunal upheld the inclusion of ICRA Online Ltd., noting that the assessee had initially selected it as functionally comparable and had not provided evidence of any change in its business activities. 5. Selection of Companies Having Super Normal Profits: The Tribunal addressed this issue in the context of TSR Darashaw Ltd. and Saket Projects Ltd. TSR Darashaw Ltd. was excluded from the final set of comparables as it was functionally different due to its software for payroll processing. Saket Projects Ltd. was also excluded for being functionally different as it was engaged in organizing events with various sponsors. 6. Inclusion of a Functionally Non-Comparable Company Earning Extraordinary Margins: The Tribunal addressed this issue in the context of Vardan Projects Ltd., which was included in the final set of comparables despite its high profit margins. The Tribunal held that high profit margins alone do not make a company non-comparable if it satisfies the comparability analysis. 7. Rejection of Ace Software Exports Ltd. as a Comparable Company: The Tribunal included Ace Software Exports Ltd. in the final set of comparables, noting that it was functionally comparable and not persistently loss-making, despite its varying operating margins. 8. Non-Consideration of Contemporaneous Data: The Tribunal did not specifically address this issue separately, as it was part of the broader decision on the transfer pricing adjustments. 9. Denial of Adjustment for Risk Differences: The Tribunal directed the Assessing Officer to allow risk adjustment for the BSS segment and AE segment, following the ratio laid down by the Delhi Bench of Tribunal in the case of Sony India Pvt. Ltd., which allowed a 20% risk adjustment. 10. Denial of Benefit of +/-5% Range While Computing the Adjustment Amount: The Tribunal directed the Assessing Officer to verify the claim of the assessee regarding the +/- 5% range and delete the addition if the margins were within this range. 11. Initiation of Penalty Proceedings Under Section 271(1)(c) of the Act and Levying Interest Under Sections 234B, 234C, and 234D of the Act: The Tribunal did not specifically address this issue separately, as it was part of the broader decision on the transfer pricing adjustments. 12. Additional Grounds of Appeal: The Tribunal addressed the additional grounds of appeal regarding the working capital adjustment, benefit of variation of +/- 5%, and adjustment should be restricted to international transactions with AE. The Tribunal directed the Assessing Officer to allow the working capital adjustment and verify the claim regarding the +/- 5% range. The Tribunal also restored the issue of applying the RPT filter for Artefact Project Ltd. to the Assessing Officer for verification. Conclusion: The appeal of the assessee was partly allowed, with specific directions to the Assessing Officer to verify and adjust the transfer pricing adjustments, allow risk adjustments, and exclude certain companies from the final set of comparables based on functional differences and varying profit margins.
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