2017 (12) TMI 992 - AT - Income Tax

TPA - selection of comparable - Held that - M/s. Vertex Customer Services India Pvt. Ltd., the taxpayer is a wholly owned subsidiary of Vertex India Limited UK engaged in the provision of services in the field of customer relationship management, managing call-centre and IT Enabled Services (ITES). The taxpayer is providing services to the Vertex Group Companies under various sub-contractual arrangements and can be characterized as a BPO and ITES provider to its Associated Enterprises (AE) and a less complex entity as it performs functions and assumes risks that are less extensive as compared to the AE, thus companies functionally dissimilar with that of assessee need to be deselected from final list of comparability.

Issues Involved:
1. Violation of principles of natural justice.
2. Assessment of a non-existing amalgamating entity.
3. Directions by the DRP being prejudicial.
4. Transfer pricing adjustments.
5. Addition/disallowance of TDS recoverable from vendors.
6. Addition/disallowance of provident fund recoverable from vendors.
7. Treatment of write-offs as bad debts.
8. Initiation of penalty proceedings under section 271(1)(c).
9. Levy of consequential interest under sections 234A and 234B.

Detailed Analysis:

1. Violation of Principles of Natural Justice:
The taxpayer argued that the assessment order was vitiated due to a violation of the principles of natural justice and was arbitrary, rendering it void ab initio. However, this issue was deemed general in nature and did not require specific adjudication.

2. Assessment of a Non-Existing Amalgamating Entity:
The taxpayer contended that the assessment was erroneously completed on a non-existing amalgamating entity instead of the amalgamated/successor company, making the order void ab initio. This issue was also considered general and did not require specific adjudication.

3. Directions by the DRP Being Prejudicial:
The taxpayer claimed that the directions passed by the DRP were prejudicial. This issue was deemed general and did not require specific adjudication.

4. Transfer Pricing Adjustments:
The taxpayer challenged the transfer pricing adjustment of INR 124,940,966 related to IT-enabled services provided to associated enterprises (AEs). The TPO had made adjustments based on various filters and selected 11 comparables with an average mean margin of 37.90%, resulting in an arm's length price of INR 72,87,99,012 as against INR 59,79,94,514 determined by the taxpayer.

Exclusion of Comparables:
- Accentia Technologies Ltd.: Excluded due to functional dissimilarity, extraordinary activities, and significant intangibles.
- Cosmic Global Ltd.: Excluded due to a different business model with significant outsourcing.
- Fortune Infotech Ltd.: Excluded due to functional dissimilarity and peculiar economic circumstances.
- IGate Global Solutions Ltd.: Excluded due to functional dissimilarity, insufficient segmental information, high turnover, and exceptional year of operation.
- Infosys BPO Ltd.: Excluded due to different and diversifying functions, high turnover, high brand value, and exceptional year of operation.
- TCS Eserve International Ltd. and TCS Eserve Ltd.: Excluded due to peculiar economic circumstances, abnormal growth, non-comparable services, and insufficient segmental data.

Inclusion of Comparables:
- Satyam BPO Ltd.: Not included due to the impact of a significant fraud.
- R. Systems International Ltd. (BPO Segment): Set aside for re-examination by the TPO due to different financial year ending and functional similarity.

The Tribunal ordered the AO/TPO to recompute the margin accordingly.

5. Addition/Disallowance of TDS Recoverable from Vendors:
The taxpayer argued that the write-off of TDS recoverable from vendors was a trading loss. The AO/DRP disallowed the amount, but the Tribunal held that the disallowance was allowable as bad debts or trading losses, thus favoring the taxpayer.

6. Addition/Disallowance of Provident Fund Recoverable from Vendors:
Similar to the TDS recoverable, the write-off of provident fund recoverable was also considered a trading loss. The Tribunal ruled in favor of the taxpayer, allowing the disallowance as business expenditure.

7. Treatment of Write-Offs as Bad Debts:
The Tribunal held that the write-offs were allowable either as bad debts or as trading losses, thus deleting the disallowance made by the AO/DRP.

8. Initiation of Penalty Proceedings under Section 271(1)(c):
This ground was considered premature and did not require specific findings.

9. Levy of Consequential Interest under Sections 234A and 234B:
This ground was considered consequential in nature and did not require specific findings.

Conclusion:
The appeal was partly allowed for statistical purposes, with specific directions for the AO/TPO to recompute the margin and allow the disallowances related to TDS and provident fund recoverable write-offs.

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