2018 (8) TMI 1201 - AT - Income Tax

Transfer pricing - second round of litigation - de novo determination of the Arms Length Price - fresh benchmarking - selection of comparable - Apart from the fresh search the TPO redrew the appellant- company s segmental by (i) treating the reimbursement of expenses received as part of profit and loss account; (ii) reallocation of certain expenses which were not actuals based on the revenue of each segment; & (iii) treating the provision/liabilities written back as non operative in nature. - Further the TPO did not allow the benefit of economic adjustments i.e. working capital and risk while computing the arms length margins of the respective segments of the company. The TPO also made an adjustment on account of period of delay in receipt of payments from AEs. The TPO imputed an Indian based interest at the rate of 10.84% p.a. for the period of delay in receipt of payments from AEs beyond 60 days. Held that - appeal filed by the assessee is allowed.

Issues Involved:
1. De novo determination of the Arm's Length Price (ALP) by the Transfer Pricing Officer (TPO).
2. Selection and exclusion of comparables for Transfer Pricing (TP) analysis.
3. Economic adjustments on account of risk.
4. Adjustment on account of receivables.

Detailed Analysis:

1. De Novo Determination of ALP:
The Hon'ble High Court of Delhi had previously addressed whether the ITAT erred in ordering a de novo determination of the ALP by the TPO. The High Court concluded that the ITAT should have performed the ALP determination itself as all relevant details were already available on record. Consequently, the ITAT's order was set aside, and the matter was remanded back to the ITAT for fresh consideration.

2. Selection and Exclusion of Comparables:
The ITAT examined the comparables used by the TPO and DRP for various segments of international transactions undertaken by the assessee.

EDS Segment:
- Exclusions: The ITAT directed the exclusion of KITCO Ltd, TCE Consulting Engineers Ltd, Certification Engineering International Ltd, Global Procurement Consultants Ltd, IBI Chematur (Engineering & Consultancy) Ltd, Mitcon Consultancy and Engineering Services, REC Power Distribution Company Ltd, RITES Ltd, and Usha Hydro Dynamics Ltd due to functional dissimilarities and other specific reasons.
- Inclusions: The ITAT included Accuspeed Engineering Services India Ltd in the final set of comparables, following the Tribunal's earlier decision.

FAS Segment:
- Exclusions: The ITAT excluded Accentia Technologies Ltd, Eclerx Services Ltd, and TCS E-Serve Ltd, citing functional dissimilarities and previous Tribunal decisions.

IT Infra Segment:
- Exclusions: The ITAT excluded Infosys Ltd, Wipro Technology Services Ltd, Acropetal Technologies Ltd, Sankya Infotech Ltd, Sasken Communication Technologies Ltd, E-Infochips India Pvt. Ltd, and E-Zest Solutions Ltd due to functional dissimilarities, failure of filters, and previous Tribunal decisions.

3. Economic Adjustments on Account of Risk:
The ITAT found that the lower authorities had not provided economic adjustments on account of differences in the risk profile of the assessee vis-a-vis comparable companies. The ITAT noted that the assessee is a captive service provider insulated from key business risks, unlike the comparable companies. The ITAT directed the AO/TPO to provide appropriate economic adjustments, following the Tribunal's earlier decision in the assessee's own case.

4. Adjustment on Account of Receivables:
The ITAT directed the deletion of the adjustment on account of receivables, following the coordinate bench's decision in the assessee's own case for A.Y 2010-11, which was upheld by the Hon'ble High Court and Supreme Court. The Tribunal had previously found that the assessee is a debt-free company, and it is not justifiable to presume that borrowed funds were utilized to pass on the facility to its AEs.

Conclusion:
The ITAT allowed the appeal filed by the assessee, directing the AO/TPO to recompute the PLI and make necessary adjustments as per the specific directions given for each segment. The ITAT emphasized the need for functional comparability and appropriate economic adjustments, ensuring that the assessee's transactions are benchmarked accurately against suitable comparables.

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