2018 (11) TMI 121 - AT - Income Tax

TPA - Comparable selection - Held that - All the three comparables which the Ld. AR submitted to be included as comparables requires a proper verification as the very basis of rejecting the comparables on the ground that the financials were not available seems to be not proper as there is database available in public domain. In fact, quarterly database of the comparable R system is available. Thus, it will be appropriate to remand back this issue for verifying these three comparbles to be included in the final list of comparables to the file of the TPO/AO. The issue is remanded back to the file of the TPO/AO and we direct the TPO that after verifying the database available and after applying the relevant filters, if these three comparables are suitable then the same may be included in the final list of the comparables. Assessee be given the opportunity of the hearing by following principles of natural justice. Working capital adjustment the same needs to be verified properly by the TPO/AO. The appropriate transfer pricing adjustment can only to be made in consonance with the international transaction undertaken by the assessee company during the year under assessment on the basis of its comparability vis- -vis comparable companies, by providing working capital adjustment to the assessee in view of the provisions contained under Rule 10B(1)(e) also. Matter is required to be restored to the TPO to provide the assessee company the benefit of working capital adjustment for transfer pricing adjustment. Therefore, we remand back this issue to the file of the TPO/AO for proper adjudication.

Issues Involved:

1. Jurisdictional error in the reference to the Transfer Pricing Officer (TPO).
2. Adjustment to the Arm's Length Price (ALP) of international transactions.
3. Exclusion and inclusion of specific comparables in the transfer pricing analysis.
4. Validity of initiation of penalty proceedings under Section 271(1)(c) of the Act.
5. Charging and computation of interest under Sections 234B, 234C, and 234D of the Act.

Detailed Analysis:

1. Jurisdictional Error in Reference to TPO:

The appellant contended that the reference made by the Assessing Officer (AO) to the TPO suffered from jurisdictional error as the AO did not record any reasons in the assessment order to justify the necessity of such a reference. This is a requirement under Section 92CA(1) of the Income Tax Act, 1961. The tribunal did not provide a detailed ruling on this issue, focusing instead on the substantive adjustments made by the TPO.

2. Adjustment to the Arm's Length Price (ALP):

The AO/TPO made an adjustment to the ALP of the appellant's international transactions related to back office and research services with Associated Enterprises (AEs), amounting to INR 12,283,545. The adjustments were based on several grounds, including modifications to the comparability analysis, rejection of certain comparables, and selection of inappropriate comparables. The tribunal reviewed these adjustments and found that the TPO had not adequately justified the selection and rejection of certain comparables.

3. Exclusion and Inclusion of Specific Comparables:

Exclusion of Eclerx Services Ltd.:
The appellant argued that Eclerx Services Ltd. was functionally dissimilar as it provided high-end services requiring specialized knowledge, unlike the routine IT-enabled services provided by the appellant. The tribunal agreed, noting that Eclerx Services Ltd. engaged in consulting, business analysis, and solution testing, which are not comparable to the appellant's services. Consequently, the tribunal directed the TPO/AO to exclude Eclerx Services Ltd. from the list of comparables.

Inclusion of Omega Healthcare Management Services Pvt. Ltd., Zavata India Pvt. Ltd., and R Systems International Limited:
The appellant sought the inclusion of these companies as comparables. The tribunal noted that the financial data for these companies were available in public databases, even if their annual reports were not publicly accessible. The tribunal remanded the issue back to the TPO/AO for verification and inclusion of these comparables if found suitable after applying relevant filters.

4. Validity of Initiation of Penalty Proceedings:

The appellant contended that the AO/TPO erred in not examining the validity of the initiation of penalty proceedings under Section 271(1)(c) of the Act. The tribunal did not provide a detailed ruling on this issue, as the primary focus was on the transfer pricing adjustments.

5. Charging and Computation of Interest:

The appellant challenged the AO's computation of interest under Sections 234B, 234C, and 234D of the Act. The tribunal did not provide a detailed ruling on this issue, focusing instead on the substantive adjustments made by the TPO.

Working Capital Adjustment:

The appellant argued for the benefit of working capital adjustment, relying on the decision in Demag Cranes & Components [2013] 30 Taxmann.com 364 (Pune-Trib.). The tribunal agreed that the issue needed proper verification and remanded it back to the TPO/AO for appropriate adjudication, ensuring the appellant is given an opportunity for a hearing.

Conclusion:

The tribunal partly allowed the appeal for statistical purposes, directing the TPO/AO to exclude Eclerx Services Ltd. from the list of comparables and to verify the inclusion of Omega Healthcare Management Services Pvt. Ltd., Zavata India Pvt. Ltd., and R Systems International Limited. The tribunal also remanded the issue of working capital adjustment back to the TPO/AO for proper adjudication. The appeal was disposed of with directions to follow the principles of natural justice.

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