2018 (10) TMI 1361 - AT - Income Tax

Transfer pricing adjustment - Comparable selection - functinal similarity - Held that - The assessee is providing software development services to its AEs thus concerns as not functionally comparables need to be excluded from the final set of comparables. Not allowing of working capital adjustment - Held that - AR for the assessee fairly submitted that in case the two concerns i.e. Bodhtree Consulting Ltd. and Kals Information Systems Ltd. are excluded from the final set of comparables and working capital adjustment is allowed to the assessee then the transactions with its AEs would be at arm s length price and no other issue needs to be adjudicated. Accordingly we do not address the non-inclusion/exclusion of PSI Data Systems Ltd. in the final list of concerns.

Summary

Issues Involved:
- Transfer pricing adjustment made by DRP/Assessing Officer of ?21,85,13,439/-
- Exclusion of two concerns as comparables - Bodhtree Consulting Ltd. and Kals Information Systems Ltd.
- Non-granting of working capital adjustment

Transfer Pricing Adjustment:
The appeal was against the order of the Assistant Commissioner of Income Tax (Appeals)-2, Pune, regarding assessment year 2009-10 under section 143(3) r.w.s. 144C(13) of the Income-tax Act, 1961. The assessee contested the addition of ?21,85,13,439/- by recomputing the transfer price of international transactions related to software development services provided to its AEs. The dispute revolved around the rejection of various companies as comparable entities by the assessee while determining the Arm's Length Price (ALP) for software development services. The TPO rejected the CUP method and accepted the TNMM method for determining the ALP. The DRP directed the inclusion of certain companies as comparables, leading to the addition by the Assessing Officer. The issue primarily focused on the selection and exclusion of comparables and adjustments in operating margins.

Exclusion of Concerns as Comparables:
The first issue raised was the exclusion of Bodhtree Consulting Ltd. and Kals Information Systems Ltd. as comparables. The assessee argued that these concerns were functionally dissimilar and should be excluded. The Tribunal referred to previous judgments and held that Bodhtree Consulting Ltd. should be excluded due to fluctuating margins and functional dissimilarity. Similarly, Kals Information Systems Ltd. was also excluded based on functional dissimilarity and engagement in activities not comparable to software development services. The Tribunal relied on precedents and functional comparability to exclude these concerns from the final list of comparables.

Non-Granting of Working Capital Adjustment:
Another issue highlighted was the non-granting of working capital adjustment by the Assessing Officer despite directions from the DRP. The Tribunal directed the Assessing Officer to allow the working capital adjustment to the assessee. It was acknowledged that if the excluded concerns were eliminated and working capital adjustment was granted, the transactions with AEs would be at arm's length price. Consequently, the issue of PSI Data Systems Ltd.'s inclusion/exclusion was not addressed. The Tribunal emphasized the importance of working capital adjustment for ensuring arm's length pricing in international transactions.

In conclusion, the Tribunal partially allowed the appeal by excluding concerns as comparables, directing working capital adjustment, and ensuring arm's length pricing for transactions with AEs. The decision was based on functional comparability, previous judgments, and adherence to transfer pricing regulations. The detailed analysis and application of legal principles ensured a fair resolution of the transfer pricing dispute in line with the Income-tax Act, 1961.