2018 (8) TMI 592 - HC - Income Tax

Transfer pricing - knowledge management systems - international transactions/activities - services rendered to its associated enterprises, i.e. AE - assessee seeks to be identified as a BPO and not as a KPO - Adjustments with regard to notional interest attributed to the assessee - Exclusion of relative comparables which were held to be irrelevant for the purpose of ALP determination - controlled transactions Held that - this court is unpersuaded by the assessee s assertion that it is merely a BPO; the services rendered by it are specialized and require specific skill based analysis and research that is beyond the more rudimentary nature of services rendered by a BPO. Therefore it would be incorrect to slot the services provided by the Assessee into that of a BPO, when it is more akin to a KPO. As per the amended provisions of Section 92B, if there is any delay in the realization of a trading debt arising from the sale of goods or services rendered in the course of carrying on the business, it is liable to be visited with transfer pricing adjustment on account of interest income short charged/uncharged. - the assessee s contention that the ITAT erred in concluding that charging of interest on delayed receipt of receivables is a separate international transaction which requires to be benchmarked independently, is incorrect. Selection of comparable - revenue urged that a stringent application of the comparability test was unnecessary - Held that - even if due consideration is given to a certain level of dissimilarity between the Assessee and the comparable companies, it can be observed that the nature of services provided by the abovementioned comparable companies do not demonstrate even a degree of similarity with the services rendered by the Assessee that would be sufficient to qualify under rule 10B(2) of the Income Tax Rules, since, as established above, the Assessee s services under its R&I segment are in the nature of services provided by a KPO and they are functionally dissimilar from the comparable companies, in terms of their services as well as their risk profiles. Decided partly in favor of assessee and partly in favor of revenue.

Issues Involved:
1. Whether the ITAT committed an error in law in holding that the assessee was engaged in knowledge management systems and international transactions/activities in respect of one of the services rendered to its associated enterprises (AE).
2. Whether the ITAT erred in excluding certain comparables for the purpose of determining the Arm's Length Price (ALP) in the transfer pricing process.
3. Whether the notional interest attributed to the assessee and for which adjustment was made by the Transfer Pricing Officer (TPO) requires further examination.

Issue-wise Detailed Analysis:

1. Nature of Services Rendered by the Assessee (KPO vs. BPO):
The primary contention of the assessee was that it functions as a Business Process Outsourcing (BPO) entity and not as a Knowledge Process Outsourcing (KPO) entity. The court examined the legislative history and purpose of introducing transfer pricing adjustments in the Income Tax Act, 1961, emphasizing that the object is to compute the income in relation to a controlled transaction between an assessee and its associated enterprise having regard to the ALP, to nullify the effect of transfer of income to a jurisdiction outside India. The court concluded that the services rendered by the assessee are specialized and require specific skill-based analysis and research, which are beyond the more rudimentary nature of services rendered by a BPO. Therefore, it would be incorrect to classify the services provided by the assessee as those of a BPO when they are more akin to a KPO.

2. Exclusion of Comparables for ALP Determination:
The ITAT excluded certain comparables on the grounds of functional dissimilarity. The court referenced the OECD Transfer Pricing Guidelines, emphasizing the importance of selecting entities that are functionally similar to the assessee to ensure a correct estimation of the ALP. The court upheld the ITAT's decision to exclude the following comparables due to their functional dissimilarity with the assessee:
- Aditya Birla Capital Advisors Pvt. Ltd.: Engaged in advising functions of raising and deploying funds, not similar to the assessee’s research and information services.
- Axis Private Equity Ltd.: Classified as asset management services with a different risk profile.
- Credit Information Bureau India Ltd.: Engaged in credit rating, distinct from the assessee’s functions.
- Birla Sunlife Asset Management Company Ltd.: Operations related to asset management services, not similar to the assessee.
- ICRA Ltd.: Provides rating and grading services, functionally different from the assessee’s research services.
- Ladderup Corporate Advisory Pvt. Ltd.: Provides financial advisory and fund-raising solutions, different from the assessee’s services.

3. Notional Interest on Overdue Receivables:
The court addressed the issue of notional interest on overdue receivables, referencing the amendment brought under Explanation to section 92B of the Act by Finance Act, 2012, w.e.f. 01.04.2012. This amendment clarifies that any debt arising during the course of business is considered an international transaction, and any delay in the realization of such debt is liable to be visited with transfer pricing adjustment on account of interest income short charged or uncharged. The court concluded that the ITAT was correct in holding that charging of interest on delayed receipt of receivables is a separate international transaction that requires benchmarking independently.

Conclusion:
The court answered the questions of law framed in ITA 461/2017 & ITA 526/2017 against the assessee, leading to the dismissal of the assessee’s appeals. Similarly, the questions of law framed in ITA 590/2017 & ITA 82/2018 were answered against the revenue, resulting in the dismissal of the revenue’s appeals. All appeals (ITA 461/2017, ITA 590/2017, ITA 82/2018 & ITA 526/2017) were consequently dismissed without any order on costs.

← Previous Next →