2018 (5) TMI 232 - AT - Income Tax

TPA - selection of comparables by Ld. TPO as well as exclusion of certain comparables that have been proposed by assessee - Held that - Assessee functions as IT enabled service provider, thus companies functionally dissimilar with that of assessee need to be deselected from final list. Disallowance on account of foreign exchange fluctuation by adjusting the same against the interest income shown under the head income from other sources - Held that - On one hand assessee projects itself to be a risk-free company wherein all the direct, indirect costs incurred by assessee including foreign exchange fluctuations are included in the cost remunerated by its AE. On the other hand assessee is considering loss earned due to foreign exchange fluctuation on conversion of its export revenues into INR as income from other sources. In our considered opinion assessee cannot blow hot and cold at the same time. We are therefore of the considered opinion that Ld. TPO was right in considering the loss incurred by assessee due to foreign exchange fluctuation as business loss. Insofar as providing adjustment in terms of foreign exchange fluctuation is concerned in respect of comparables, assessee is directed to provide necessary details in respect of any such risk assumed by such comparables that has been finally selected hereinabove for purpose of benchmarking international transaction. Ld.TPO shall then verify the same and accordingly grant risk adjustment while computing margin of assessee.

Summary

Issues Involved:
1. Validity of the assessment order.
2. Motive of tax evasion.
3. Selection and rejection of comparables in transfer pricing analysis.
4. Determination of arm's length price for international transactions.
5. Computation of operating margins of comparables.
6. Adjustment for transactional level differences.
7. Working capital adjustments.
8. Economic adjustments for differences in risks assumed.
9. Treatment of foreign exchange gain or loss.
10. Disallowance of net loss on foreign exchange.

Detailed Analysis:

1. Validity of the Assessment Order:
The appellant contended that the assessment order was bad in law. However, the tribunal did not find any specific argument or evidence from the appellant to substantiate this claim. Therefore, this issue was not upheld.

2. Motive of Tax Evasion:
The appellant argued that the order was passed without demonstrating a motive for tax evasion. The tribunal did not find any merit in this argument as the assessment was based on transfer pricing adjustments and not on the presumption of tax evasion.

3. Selection and Rejection of Comparables in Transfer Pricing Analysis:
The appellant objected to the rejection of two out of three comparables they had selected and the inclusion of inappropriate comparables by the TPO. The tribunal analyzed each comparable in detail:
- E4 Healthcare Business Services Pvt. Ltd.: Excluded due to functional dissimilarity as it provides healthcare services, unlike the appellant's low-end transcription services.
- Jindal Intellicom Pvt. Ltd.: Retained as the appellant did not press for its exclusion.
- ICRA Techno Analytics Ltd.: Excluded due to involvement in diverse services like software development, and lack of segmental information.
- Cosmic Global Ltd.: Included but directed TPO to consider only the revenue from medical transcription and consultancy services.
- Infosys BPO Ltd.: Excluded due to high turnover and significant differences in functional profile.

4. Determination of Arm's Length Price for International Transactions:
The tribunal directed the TPO to reconsider the comparables and make necessary adjustments to determine the arm's length price accurately.

5. Computation of Operating Margins of Comparables:
The appellant contended errors in computing operating margins. The tribunal directed the TPO to rectify any mistakes apparent from the record and ensure accurate computation of operating margins.

6. Adjustment for Transactional Level Differences:
The tribunal acknowledged the need for proper adjustments for transactional level differences between the appellant and comparables. The TPO was instructed to make appropriate adjustments.

7. Working Capital Adjustments:
The tribunal directed the TPO to consider working capital adjustments between the appellant and selected comparables based on the risk assumed.

8. Economic Adjustments for Differences in Risks Assumed:
The tribunal emphasized the importance of economic adjustments for differences in risks assumed by the appellant compared to the comparables. The TPO was instructed to verify and grant necessary risk adjustments.

9. Treatment of Foreign Exchange Gain or Loss:
The appellant argued that foreign exchange gain or loss should be treated as operating in nature. The tribunal agreed that foreign exchange gain/loss must be considered part of operating income for computing margins. However, the tribunal upheld the TPO's treatment of foreign exchange loss as a business loss.

10. Disallowance of Net Loss on Foreign Exchange:
The appellant contested the disallowance of net loss on foreign exchange against interest income. The tribunal upheld the TPO's decision to treat the loss as a business loss and not as income from other sources. The tribunal directed the appellant to provide details of foreign exchange risk assumed by comparables for necessary adjustments.

Conclusion:
The appeal was partly allowed. The tribunal directed the TPO to reconsider the selection of comparables, make necessary adjustments for transactional differences, working capital, and economic adjustments, and to treat foreign exchange gain/loss as part of operating income while computing margins. The disallowance of net loss on foreign exchange was upheld as a business loss.