2017 (11) TMI 908 - AT - Income Tax

TPA - selection of comparable - Held that - Assessee is engaged in rendering of services i.e. Software Development Services . It is also engaged in the business of rendering technical services related to tabulation, coding and software development. It is established to undertake and engaged in export of software, computer skilled manpower and other computer related activities to carry out development in the area of information technology, computer systems, software, application software, integrated tolls for computer systems and application development, data communication and network. Thus companies functionally dissimilar with that of assessee need to b deselected from final list of comparables.

Issues Involved:

1. Exclusion of certain comparables.
2. Inclusion of certain comparables.
3. Adjustment of Arm's Length Price (ALP).
4. Functional dissimilarity and non-availability of segmental data.
5. Extraordinary events affecting comparability.
6. Rejection of economic analysis by the Transfer Pricing Officer (TPO).

Detailed Analysis:

1. Exclusion of Certain Comparables:

Acropetal Technologies Ltd.:
The assessee argued that Acropetal Technologies Ltd. is functionally different as it provides high-end healthcare services and owns intellectual property, leading to higher profitability. The company also engages in the sale of software products and has undergone extraordinary events, including acquisitions. The Tribunal agreed and directed the TPO to exclude Acropetal Technologies Ltd. from the comparables due to functional differences and lack of segmental data.

Infosys Ltd.:
The assessee contended that Infosys Ltd. should be excluded due to its giant size, risk-bearing nature, and ownership of significant intangibles, including patents and proprietary products. The Tribunal upheld this view, citing multiple precedents, and directed the TPO to exclude Infosys Ltd. from the comparables.

Larsen & Toubro Infotech Ltd.:
The assessee highlighted that Larsen & Toubro Infotech Ltd. operates in two business segments (software development services and software products) without available segmental data. The Tribunal agreed and directed the TPO to exclude this company from the comparables.

Mindtree Limited:
The assessee argued that Mindtree Limited is engaged in the development and sale of software products and owns intangible assets, making it functionally different. The Tribunal concurred, directing the TPO to exclude Mindtree Limited from the comparables.

Persistent Systems Ltd.:
The assessee pointed out that Persistent Systems Ltd. engages in product development and sale, making it functionally different. The Tribunal agreed and directed the TPO to exclude Persistent Systems Ltd. from the comparables.

Spry Resources Pvt. Ltd.:
The assessee noted the unavailability of audited financial statements for the relevant financial year. The Tribunal directed the TPO to consider the assessee's objection and provide the financial statement for evaluation.

Zylog Systems Ltd.:
The assessee argued that Zylog Systems Ltd. is engaged in the development and sale of software products and owns IP rights, making it functionally different. The Tribunal agreed and directed the TPO to exclude Zylog Systems Ltd. from the comparables.

2. Inclusion of Certain Comparables:

Thinksoft Global Services Ltd.:
The assessee argued that Thinksoft Global Services Ltd. is functionally comparable as it provides software validation and verification services. The Tribunal directed the TPO to adjudicate the objection and consider including this comparable.

Sonata Software Ltd.:
The assessee contended that Sonata Software Ltd. is functionally comparable, earning 100% of its revenue from software development services. The Tribunal directed the TPO to adjudicate the objection and consider including this comparable.

3. Adjustment of Arm's Length Price (ALP):
The TPO made an adjustment of ?2,61,31,755/- on account of the difference in the ALP of the international transaction of software development services. The Tribunal's directions on exclusion and inclusion of comparables will impact the final ALP determination.

4. Functional Dissimilarity and Non-Availability of Segmental Data:
The Tribunal emphasized the importance of functional comparability and availability of segmental data in selecting comparables. Companies engaged in different functions or lacking segmental data were directed to be excluded.

5. Extraordinary Events Affecting Comparability:
The Tribunal noted that companies undergoing extraordinary events, such as mergers and acquisitions, should be excluded from the comparables due to the impact on their financials and functional profile.

6. Rejection of Economic Analysis by the TPO:
The TPO rejected the assessee's economic analysis, including the treatment of foreign exchange fluctuation as non-operating income. The Tribunal's directions on comparables will necessitate a reassessment of the economic analysis.

Conclusion:
The Tribunal remanded the matter back to the Assessing Officer/TPO to decide as per the directions given, providing the assessee with a full opportunity for hearing. The appeal was partly allowed for statistical purposes.

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