2017 (9) TMI 178 - AT - Income Tax

TPA - selection of comparables - Additions in respect of international transactions - MAM - suitability of CG-VAK Software & Exports Limited as comparable - Held that - Assessee company has been providing research and information services and IT support services to its group companies being a captive contract service provider. When it is not in dispute that the comparable company, namely CG-Vak Software & Exports Limited is a listed company, its quarterly results are available in public domain and there is no need even for extrapolating the result. So, in these circumstances, we are of the considered view that this comparable company is a suitable comparable company and consequently, this issue is remanded to the ld. TPO to benchmarking the international transaction in question by including this comparable in the final set of comparables by verifying the quarterly results available in the public domain as this company is a listed company. Computational error in margins of assessee and comparables - exclude FBT while computing the margins of assessee - Held that - Even application filed on 03.04.2013 has not been disposed off to exclude the FBT in case of assessee as the same has been excluded while computing the margins of comparable companies. Even, ld. Senior DR attending the case for the last three years has not preferred to direct the quarter concerned to comply with the directions issued by higher Revenue Authorities, the ld. DRP in this case. This is a case of complete lack of empathy and voluntarism on the part of lower Revenue Authorities by not complying with the order of the higher authorities. So, we hereby direct the TPO/AO to comply with the directions issued by the ld. DRP to exclude FBT while computing the margins of assessee as has been done in case of comparable companies to arrive at a correct computation of the margins of assessee as well as comparable companies. Computing the operating margin - Held that - We consider the amount of foreign exchange gain/loss from foreign exchange fluctuation being non operating items as per Safe Harbour Rules while computing the operating margin of the comparable company as well as assessee company from provisions of IT Support services. - Decided in favour of assessee for statistical purposes.

Summary

Issues Involved:
1. Transfer Pricing Issues
2. Corporate Taxation Issues
3. Computational Errors
4. Foreign Exchange Fluctuations
5. Interest and Penalty Charges

Detailed Analysis:

Transfer Pricing Issues:

1. Addition to Total Income: The Tribunal addressed the addition of INR 72,51,703 made by the TPO/AO/DRP concerning the international transaction for IT support services. The Tribunal noted that the TPO had not disputed the Transactional Net Margin Method (TNMM) as the most appropriate method but had selected different comparables resulting in a higher mean margin.

2. Economic Analysis: The Tribunal observed that the TPO/AO/DRP had not accepted the economic analysis undertaken by the assessee and had modified it for determining the arm's length price (ALP).

3. Use of Multiple Year Data: The Tribunal did not provide specific findings on the use of multiple year data but noted that this issue was academic in nature.

4. Comparability Criteria: The Tribunal examined the rejection of certain companies by the TPO/AO/DRP based on inappropriate comparability criteria, such as turnover filter and different accounting years. It was noted that the TPO applied several filters to select comparable companies, including revenue thresholds and functional similarity.

5. Selection of Comparable Companies: The Tribunal addressed the inclusion of companies with supernormal profits and the rejection of others based on ad-hoc criteria. The Tribunal specifically remanded the issue of including CG-Vak Software & Exports Limited in the final set of comparables, directing the TPO to verify quarterly results available in the public domain.

6. Computational Errors: The Tribunal noted computational errors in the margin of comparable companies and directed the TPO/AO to correct these errors, particularly regarding the exclusion of Fringe Benefit Tax (FBT) in the assessee's margin calculation.

Corporate Taxation Issues:

1. Section 10A Deduction: The Tribunal addressed the denial of deduction under section 10A of the Income Tax Act for profits derived from export of IT-enabled services. The Tribunal noted that the assessee had been recognized as an IT-enabled company under the Software Technology Parks scheme and that its activities had been upheld in previous assessments.

2. Nature of Services: The Tribunal examined the nature of services provided by the assessee, including customization of data, data processing, and back-office operations, and concluded that these activities qualified as IT-enabled services eligible for deduction under section 10A.

3. Change in Opinion: The Tribunal criticized the AO for changing the opinion on the eligibility of the assessee's activities for deduction without any new evidence or change in circumstances.

Computational Errors:

1. Fringe Benefit Tax (FBT): The Tribunal directed the TPO/AO to exclude FBT from the operating cost of the assessee, as it had been excluded for comparable companies, to ensure a correct computation of margins.

Foreign Exchange Fluctuations:

1. Operating Margin: The Tribunal held that gains/losses arising from foreign exchange fluctuations should be considered while computing the operating margin of both the comparable companies and the assessee. This was based on the rationale that such fluctuations are integral to the trading items and should be treated as operating items.

Interest and Penalty Charges:

1. Interest Under Sections 234B, 234C, and 234D: The Tribunal did not provide specific findings on the charging of interest under these sections but noted the assessee's contention against it.

2. Penalty Proceedings Under Section 271(1)(c): The Tribunal did not delve into the specifics of the penalty proceedings but acknowledged the assessee's challenge against the initiation of such proceedings.

Conclusion:
The appeal was allowed for statistical purposes, with directions to the TPO/AO to correct computational errors, include CG-Vak Software & Exports Limited as a comparable, and consider foreign exchange fluctuations in the operating margin calculation. The Tribunal upheld the assessee's eligibility for deduction under section 10A and criticized the AO for changing opinions without new evidence.