2018 (4) TMI 30 - AT - Income Tax

TPA - Comparable selection criteria - Held that - Assessee is engaged in providing business support services and IT-enabled services to its associate enterprises (AEs) thus companies functionally dissimlar with that of assessee need to be deselected from final list. Working capital adjustment - Held that - We find that the DRP has given clear direction on this issue to grant working capital adjustment on the basis of OECD guidelines. Being so the Assessing Officer is directed to compute the same accordingly. Hence this ground of appeal of the assessee is allowed. Risk adjustment - Held that - As AR was not able to show the exact nature of the risk undertaken by the assessee and its effect on the profitability of the assessee. Accordingly this ground of appeal is rejected.

Issues Involved:
1. Transfer Pricing Adjustment
2. Acceptance and Rejection of Comparable Companies
3. Computation of Working Capital Adjusted Operating Margins
4. Application of Upper Limit to Turnover Filter
5. Reclassification of Business Operations
6. Sharing of Search Strategy and Results
7. Addition or Modification of Filters in Transfer Pricing Report
8. Use of Single Year Data and Non-Contemporaneous Data
9. Comparison of Risk Bearing Entities with Captive Operations
10. Levy of Penalty under Section 271(1)(c)
11. Levy of Interest under Sections 234B and 234C

Detailed Analysis of Judgment:

1. Transfer Pricing Adjustment:
The assessee challenged the transfer pricing adjustment of ?2,32,01,127 related to the provision of Information Technology enabled services (ITeS) to its Associated Enterprises (AEs). The adjustment was made by the Transfer Pricing Officer (TPO) and confirmed by the Dispute Resolution Panel (DRP).

2. Acceptance and Rejection of Comparable Companies:
- Universal Print Systems Limited: The assessee argued that Universal Print Systems Limited should be excluded as a comparable because its employee cost to sales ratio was only 18.56%, below the TPO's threshold of 25%. The Tribunal agreed and remitted the issue to the Assessing Officer for fresh consideration.
- Infosys BPO Limited: The Tribunal excluded Infosys BPO from the list of comparables due to its significantly higher turnover (?1312 crores) compared to the assessee's turnover (?11.47 crores), its significant brand value, and high-end services.
- TCS E-Serve Limited: Similarly, TCS E-Serve Limited was excluded due to its high turnover (?1578 crores) and significant brand value.
- Informed Technologies India Ltd.: The Tribunal upheld the rejection of Informed Technologies as a comparable due to the prejudicial interest of granting interest-free loans to related parties, which affected profitability.

3. Computation of Working Capital Adjusted Operating Margins:
The Tribunal directed the Assessing Officer to compute the working capital adjustment based on OECD guidelines, as directed by the DRP.

4. Application of Upper Limit to Turnover Filter:
The assessee did not press this ground, and it was dismissed accordingly.

5. Reclassification of Business Operations:
This issue was deemed academic in nature and did not require separate adjudication due to the findings in other grounds.

6. Sharing of Search Strategy and Results:
This issue was also deemed academic and did not require separate adjudication.

7. Addition or Modification of Filters in Transfer Pricing Report:
This issue was considered academic and did not require separate adjudication.

8. Use of Single Year Data and Non-Contemporaneous Data:
This issue was deemed academic and did not require separate adjudication.

9. Comparison of Risk Bearing Entities with Captive Operations:
The Tribunal rejected this ground as the assessee could not show the exact nature of the risk undertaken and its effect on profitability.

10. Levy of Penalty under Section 271(1)(c):
The Tribunal rejected the proposition to levy a penalty under Section 271(1)(c) as preposterous.

11. Levy of Interest under Sections 234B and 234C:
The Tribunal noted that the levy of interest under Sections 234B and 234C is consequential and mandatory, thus requiring no adjudication.

Conclusion:
The appeal of the assessee was partly allowed for statistical purposes, with specific directions given to the Assessing Officer for fresh consideration on certain issues. The Tribunal provided detailed reasoning for the acceptance or rejection of comparable companies and other grounds raised by the assessee.

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