2017 (7) TMI 198 - AT - Income Tax

TPA - comparability - selection criteria - Held that - In the present case, the assessee itself excluded those companies which had been declared sick or were having negative net worth. However, a company cannot be excluded from the list of comparables if it was a loss making company in view of the decision of the ITAT Special Bench Chandigarh in the case of DCIT Vs Quark Systems (P.) Ltd. (2009 (10) TMI 591 - ITAT, CHANDIGARH). Therefore, in our opinion, the TPO/DRP was not justified in excluding M/s Besant Raj International Ltd. only on this basis that it was a loss making company, particularly when it was functionally the same and was deriving income from consultancy services as in the case of the assessee. Since this company is functionally similar with the assessee and making of the loss cannot be criteria for the exclusion from the list of comparables. We, direct the AO to include this company in the list of the comparables. As regards to the exclusion of M/s Capital Trust Ltd. is concerned, it is an admitted fact that the said company was engaged in the foreign consultancy but the assessee is not engaged in such activity. Therefore, this company cannot be considered as functionally similar with the assessee, so it was rightly excluded from the list of the comparable. M/s Priya International Ltd. was functionally different from the assessee and should not have been included in the list of the comparable. We, therefore, direct the AO to exclude M/s Priya International Ltd. from the list of comparables and then work out the OP/TC ratio.

Summary

Issues Involved:
1. Validity of the AO's order.
2. Addition of ?1,10,02,678/- due to difference in arm's length price.
3. Rejection of comparables: Besant Raj International, Capital Trust Limited, Ujjwal Ltd.
4. Inclusion of comparables: IDC India Ltd., Priya International.
5. Calculation errors in OP/TC ratios of certain comparables.
6. Credit of prepaid taxes.
7. Calculation of interest under Section 234D.

Detailed Analysis:

1. Validity of the AO's Order:
The assessee contested the validity of the AO's order dated 07.01.2014, passed on the direction u/s 144C(5) of the Income Tax Act, 1961, issued by the DRP on 30.12.2013. However, specific arguments on this issue were not pressed during the hearing.

2. Addition of ?1,10,02,678/- due to Difference in Arm's Length Price:
The AO, based on the TPO's recommendation, added ?1,10,02,678/- to the total income of the assessee due to the difference in arm's length price. The TPO determined an average OP/TC margin of 11.23% instead of 10.52% declared by the assessee, leading to this adjustment.

3. Rejection of Comparables: Besant Raj International, Capital Trust Limited, Ujjwal Ltd.:
- Besant Raj International Ltd.: The TPO rejected this comparable on the grounds of persistent losses and functional dissimilarity. The DRP upheld this rejection, noting that the company had accumulated losses and a different functional profile. However, the ITAT found that merely being a loss-making entity does not justify exclusion if it is functionally similar. The ITAT directed the AO to include Besant Raj International Ltd. as a comparable.
- Capital Trust Limited: This company was excluded due to its engagement in foreign consultancy, which was not comparable to the assessee’s activities. The ITAT upheld this exclusion.
- Ujjwal Ltd.: The TPO and DRP rejected this comparable due to its persistent losses and functional dissimilarity. The ITAT did not find any reason to interfere with this decision.

4. Inclusion of Comparables: IDC India Ltd., Priya International:
- IDC India Ltd.: The assessee argued that IDC India Ltd. was primarily engaged in research practices, making it functionally dissimilar. The ITAT agreed and directed the AO to exclude IDC India Ltd. from the list of comparables.
- Priya International: The assessee contended that Priya International was mainly a trading company, unlike the assessee, which provided support services. The ITAT found that Priya International’s primary revenue came from sales and trading activities, not comparable to the assessee's service-oriented business. Thus, the ITAT directed the AO to exclude Priya International from the comparables.

5. Calculation Errors in OP/TC Ratios of Certain Comparables:
The assessee pointed out calculation errors in the OP/TC ratios of Educational Consultants Ltd., Agricultural Finance Corporation Ltd., IDC India Ltd., and Priya International Ltd. The ITAT directed the AO to verify the calculations for Educational Consultants Ltd. and Agricultural Finance Corporation Ltd. However, since IDC India Ltd. and Priya International Ltd. were excluded, no verification was needed for them.

6. Credit of Prepaid Taxes:
The issue of not giving proper credit for prepaid taxes was raised but not pressed during the hearing.

7. Calculation of Interest under Section 234D:
The assessee contended that the interest under Section 234D was wrongly calculated. The ITAT noted that this issue is consequential and should be addressed accordingly.

Conclusion:
The ITAT partly allowed the appeal for statistical purposes, directing the AO to make necessary adjustments and verifications as specified. The AO was instructed to include Besant Raj International Ltd. as a comparable, exclude IDC India Ltd. and Priya International from the comparables, and verify the calculation errors for Educational Consultants Ltd. and Agricultural Finance Corporation Ltd. The issue of interest under Section 234D was deemed consequential.