2017 (7) TMI 995 - AT - Income Tax

Upward adjustment of arm s length price of assessee s international transaction - selection of comparable - Held that - Assessee company is a wholly owned subsidiary of Ciena Corporation, USA, and engaged in provision of software development and marketing software services to its overseas group company. Assessee is a 100% EOU under the Software Technology Park Scheme incorporated on June 27, 2005 and commenced its operation w.e.f. April 10, 2006. Assessee company is remunerated on cost plus basis for providing services, namely, contractual software development and marketing software services, thus companies with functional dissimilarity and extra ordinary events impacting profitability of the comparable company nee to be deselected from final list of comparable. Depreciation disallowance on the assets purchased from AE - Held that - Coordinate Bench dealt with the issue in detail on the identical facts for AY 2009-10, and held that in case of service provider, the ALP of import of capital equipment, the depreciation cost of which is recharged with a markup cannot be determined to be nil because it is a tax neutral transaction and revenue is dependent upon the cost incurred (which includes depreciation). Thus the value as recorded in the books of account is to be upheld and deletion of addition made by disallowing or reducing the amount of depreciation on the assets purchased from AE is not sustainable. Not only this, TPO for FY 2010-11 and FY 2007-08 has upheld that the price charged for import of capital equipment complies with the arm s length standard and the assessee has brought on record the order of TPO for FY 2010-11 and FY 2007-08 holding that the price charged for import of capital equipment complies with the arm s length standard which is available as Appendix 2 and Appendix 3 annexed with the synopsis. So, in these circumstances, we hereby delete the addition on this account made by disallowing or reducing the amount of depreciation on the assets purchased from the AE

Issues Involved:
1. Validity of the AO's order.
2. Adjustment to the arm's length price (ALP) of international transactions.
3. Jurisdictional error in referring the matter to the TPO.
4. Upward adjustment of ALP for software development services.
5. Upward adjustment of ALP for marketing support services.
6. ALP determination for import of capital equipment.
7. Enhancement of income by the amount capitalized for capital equipment.
8. Initiation of penalty proceedings.
9. Charging and computing interest under sections 234B, 234C, and 234D.

Detailed Analysis:

1. Validity of the AO's Order:
The appellant, M/s. Ciena India Private Limited, challenged the order passed by the AO under section 143(3)/144C of the Income-tax Act, 1961, for the assessment year 2010-11. The Tribunal found these grounds to be general in nature and did not require specific adjudication.

2. Adjustment to the Arm's Length Price (ALP) of International Transactions:
The AO/TPO made an adjustment to the ALP of the appellant's international transactions, resulting in an enhancement of the returned income by INR 57,85,27,473. The TPO rejected several comparable companies selected by the appellant and included new ones, leading to a revised ALP determination.

3. Jurisdictional Error in Referring the Matter to the TPO:
The appellant contended that the AO did not record reasons for referring the matter to the TPO, as required under section 92CA(1) of the Act. This ground was not pressed by the appellant and was determined against them.

4. Upward Adjustment of ALP for Software Development Services:
The appellant challenged the upward adjustment of the ALP for software development services. The Tribunal examined the suitability of the comparable companies included by the TPO:
- E-Infochips Bangalore Limited: Excluded due to functional dissimilarity and lack of segmental details.
- Infosys Limited: Excluded due to significant differences in risk profile, services, and turnover.
- Persistent Systems Limited: Excluded due to involvement in software product development and lack of segmental information.
- Thirdware Solutions: Excluded due to diversified services and high related party transactions.
- Wipro Technology Services Ltd.: Excluded due to functional dissimilarity and significant R&D expenses.

5. Upward Adjustment of ALP for Marketing Support Services:
The appellant challenged the upward adjustment of the ALP for marketing support services. The Tribunal examined the suitability of the comparable companies included by the TPO:
- APTICO Limited: Excluded due to functional dissimilarity.
- HCCA Business Services Pvt. Ltd.: Excluded due to functional dissimilarity.
- TSR Darashaw Limited: Excluded due to functional dissimilarity.
- Cyber Media India Online Ltd.: Excluded due to functional dissimilarity and extraordinary events affecting profitability.

6. ALP Determination for Import of Capital Equipment:
The appellant imported capital equipment amounting to INR 57,30,63,268 from its AE. The TPO determined the ALP to be nil. The Tribunal, following its decision for the assessment year 2009-10, held that the ALP of the import of capital equipment could not be determined to be nil as it was a tax-neutral transaction. The Tribunal ordered the deletion of the addition made by disallowing or reducing the amount of depreciation on the assets purchased from the AE.

7. Enhancement of Income by the Amount Capitalized for Capital Equipment:
The appellant contended that the AO erred in enhancing the income by the amount capitalized for capital equipment. The Tribunal upheld the value recorded in the books of accounts and deleted the addition made by disallowing or reducing the amount of depreciation.

8. Initiation of Penalty Proceedings:
The appellant contended that the AO erred in initiating penalty proceedings under section 274 read with section 271(1)(c) of the Act without recording adequate satisfaction. This ground was found to be premature and required no adjudication.

9. Charging and Computing Interest under Sections 234B, 234C, and 234D:
The appellant contended that the AO erred in charging and computing interest under sections 234B, 234C, and 234D of the Act. This ground was found to be consequential in nature and required no adjudication.

Conclusion:
The Tribunal allowed the appeal in part, ordering the exclusion of certain comparable companies for benchmarking the international transactions and deleting the addition made by disallowing or reducing the amount of depreciation on the assets purchased from the AE. The issues regarding penalty proceedings and interest computation were found to be premature or consequential and required no adjudication.

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