2018 (6) TMI 1039 - AT - Income Tax

TPA - comparable selection of Genesys International Corporation Ltd. (Genesys) - Held that - Assessee is only engaged in providing back office IT enabled services to its AE and is also engaged in rendering transaction processing services, internet, consulting and voice based customer care services and, therefore, on functional dissimilarity Genesys cannot be cannot be taken as a comparable to the assessee company. Genesys is engaged in doing pioneering research in the area of image intelligence and recognition, mobile mapping as well as LIDAR whereas the assessee is not involved in any research and development activity and, therefore, this company cannot be considered a comparable on this account also Disallowance u/s 14A - Held that - It is not clear as to whether the AO has considered only the investment which yielded the exempt income or the entire investment made by the assessee while computing the disallowance. It has also been submitted that the assessee had incurred an expenditure by way of interest on loan taken from M/s Orix Auto Infrastructure Services Limited which was specifically taken for the purpose of financing the vehicles and, therefore, the disallowance with respect to this interest under Rule 8D(2)(ii) could not be invoked - thus this issue needs to be adjudicated afresh by the AO/TPO Addition of disallowance u/s 14A while computing the book profit u/s 115JB - This issue is covered in favour of the assessee by the judgment of the Hon ble Delhi High Court in the case of Pr. CIT vs. Bhushan Steel Ltd. (2015 (9) TMI 1424 - DELHI HIGH COURT) wherein it was held that disallowance u/s 14A r/w Rule 8D cannot be added while computing book profits u/s 115JB of the Act.

Summary

Issues Involved:
1. Transfer Pricing Adjustment
2. Disallowance under Section 14A of the Income Tax Act
3. Addition of Disallowance under Section 14A while computing book profits under Section 115JB
4. Interest under Sections 234B, 234C, and 234D
5. Penalty under Section 271(1)(C)

Issue-Wise Detailed Analysis:

1. Transfer Pricing Adjustment:

The department challenged the exclusion of Genesys International Corporation Ltd. from the final list of comparables. The Ld. CIT DR argued that Genesys was initially selected by the assessee itself and fell within the parameters applied by the TPO. The Ld. AR countered that Genesys was engaged in high-end and complex services, unlike the assessee, which provided back-office IT-enabled services. Genesys also operated as a full-fledged risk-taking entrepreneur, whereas the assessee was a limited risk provider. The Tribunal upheld the exclusion of Genesys, noting significant functional dissimilarities, different risk profiles, and the presence of significant intangibles in Genesys, which the assessee lacked. The appeal of the department was dismissed.

2. Disallowance under Section 14A of the Income Tax Act:

The assessee challenged the disallowance under Section 14A, arguing that no expenditure was incurred to earn the exempt income from mutual funds and subsidiaries. The Ld. AR emphasized that the investments were old and made from non-borrowed funds. The Tribunal noted that the AO had not clearly considered whether the disallowance pertained only to investments yielding exempt income or the entire investment. The issue was remanded back to the AO/TPO for fresh adjudication, considering the specific interest expenditure incurred for vehicle financing and the commercial expediency of investments in subsidiaries.

3. Addition of Disallowance under Section 14A while computing book profits under Section 115JB:

The assessee argued that the disallowance under Section 14A should not be added while computing book profits under Section 115JB. The Tribunal referred to the judgment of the Hon'ble Delhi High Court in Pr. CIT vs. Bhushan Steel Ltd., which held that disallowance under Section 14A cannot be added while computing book profits under Section 115JB. The Tribunal directed the AO/TPO to exclude the disallowance amount while computing book profits under Section 115JB.

4. Interest under Sections 234B, 234C, and 234D:

The assessee challenged the computation of interest under Sections 234B, 234C, and 234D. However, the Tribunal did not provide specific details or a ruling on this issue in the provided judgment text.

5. Penalty under Section 271(1)(C):

The assessee challenged the initiation of penalty under Section 271(1)(C) as being mechanical and without proper satisfaction. The Tribunal did not provide specific details or a ruling on this issue in the provided judgment text.

Conclusion:

The Tribunal dismissed the department's appeal challenging the exclusion of Genesys International Corporation Ltd. and upheld the Ld. DRP's directions. The assessee's cross-objections were partly allowed, with the issue of disallowance under Section 14A remanded for fresh adjudication and the exclusion of disallowance under Section 14A while computing book profits under Section 115JB upheld. The final result was that the department's appeal was dismissed, and the assessee's appeal was partly allowed. The order was pronounced in the open court on 18th June 2018.