2018 (9) TMI 1020 - AT - Income Tax

TPA - Comparable selection criteria - Held that - Assessee which is a captive entity is engaged in providing data processing and back office support services including payment processing, data processing, documentation processing, investigation related services and trade central processing services to its AEs thus companies functionally dissimilar with that of assessee need to be selected from assessee. Risk adjustment - Held that - Now when the assessee in the case before us had claimed adjustment of 10.29% on account of difference in the risk profile before the TPO and DRP, thus in all fairness, respectfully following the view taken by the Tribunal in the assesses own case for A.Y 2005-06, therein restore the matter to the file of the TPO, in the same terms, for deciding the said issue afresh after considering the decisions relied upon by the assessee.

Issues Involved:
1. Addition to total income based on Chapter X of the Income-tax Act.
2. Disregarding the benchmarking analysis and comparable companies selected by the assessee.
3. Conducting a fresh benchmarking analysis using non-contemporaneous data.
4. Adopting an arbitrary search strategy for selection of comparable companies.
5. Rejecting the computation of margin based on multiple year financial data.
6. Denying risk/working capital/marketing cost/bad debts adjustments.
7. Denying the benefit/reduction of 5 percent from the arithmetic mean.
8. Not accepting the Global pricing policy followed by the assessee.
9. Not stating reasons for adjustment under Section 92C(3) of the Act.
10. Not demonstrating that the motive was to shift profits outside India.

Detailed Analysis:

1. Addition to Total Income Based on Chapter X of the Income-tax Act:
The Transfer Pricing Officer (TPO) and the Assessing Officer (AO) added ?4,75,65,420 to the total income of the assessee based on Chapter X provisions. The assessee contested this addition, arguing that their benchmarking analysis was disregarded and that the fresh benchmarking analysis conducted by the TPO was flawed.

2. Disregarding Benchmarking Analysis and Comparable Companies:
The TPO rejected 8 out of 11 comparables selected by the assessee and included 10 additional comparables, creating a final set of 13 comparables. The assessee argued that the TPO erred in disregarding their benchmarking analysis and the comparable companies selected based on contemporaneous data.

3. Conducting Fresh Benchmarking Analysis Using Non-Contemporaneous Data:
The TPO conducted a fresh benchmarking analysis using non-contemporaneous data, which the assessee argued was based on conjectures and surmises. The Tribunal found merit in the assessee's argument and directed the exclusion of certain comparables like Apex Knowledge Solution Pvt. Ltd., Asit C. Mehta Financial Services Ltd., Cosmic Global Ltd., Goldstone Infratech Ltd., Maple eSolutions Ltd., and Datamatics Financial Services Ltd. from the final list.

4. Adopting Arbitrary Search Strategy for Selection of Comparable Companies:
The TPO adopted an arbitrary search strategy for selecting comparable companies. The Tribunal noted that the TPO's approach was inconsistent and directed the exclusion of certain comparables that did not meet the criteria applied by the TPO himself.

5. Rejecting Computation of Margin Based on Multiple Year Financial Data:
The TPO rejected the assessee's contention to compute the margin of comparable companies based on multiple year financial data. The Tribunal upheld this rejection, noting that the DRP had also not found favor with the assessee's argument.

6. Denying Risk/Working Capital/Marketing Cost/Bad Debts Adjustments:
The TPO and DRP denied adjustments for risk, working capital, marketing cost, and bad debts. The Tribunal found that the assessee had been allowed working capital adjustments in preceding and succeeding years and directed the TPO to reconsider this adjustment. The Tribunal also restored the issue of risk adjustment to the TPO for fresh adjudication, considering the decisions relied upon by the assessee.

7. Denying Benefit/Reduction of 5 Percent from Arithmetic Mean:
The DRP accepted the assessee's claim for allowing the benefit of plus/minus 5% variations while determining the ALP. The AO was directed to exclude Vishal Information Technologies Ltd. from the final list of comparables and recast the average mean profit of the remaining comparables.

8. Not Accepting Global Pricing Policy:
The TPO did not accept the Global pricing policy followed by the assessee for back office support services transactions. The Tribunal did not specifically address this issue in detail.

9. Not Stating Reasons for Adjustment Under Section 92C(3) of the Act:
The assessee argued that the TPO did not state reasons to show that the conditions mentioned in clauses (a) to (d) of Section 92C(3) were satisfied before making an adjustment. The Tribunal did not specifically address this issue in detail.

10. Not Demonstrating Motive to Shift Profits Outside India:
The assessee contended that the TPO did not demonstrate that the motive was to shift profits outside India by manipulating prices in international transactions. The Tribunal did not specifically address this issue in detail.

Conclusion:
The Tribunal partly allowed the appeal, directing the exclusion of certain comparables and reconsideration of working capital and risk adjustments. The AO/TPO were instructed to re-evaluate the functional profile and comparability of certain companies and provide reasonable opportunities for the assessee to substantiate their claims.

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