2019 (1) TMI 952 - AT - Income Tax

Transfer pricing addition - comparable selection criteria - functional similarity - Held that - As assessee is characterised as performing engineering design services as a sub contractor to Fluor Affiliate, exposed to limited risk associated with carrying out such business,0 thus companies functionally dissimilar with that of assessee need to be deselected from final list. If difference arising on comparability analysis does not affect price or profitability of comparable, or if it can be reasonably adjusted, same should be taken as good comparable for Comparability analysis. Therefore, it should not be assumed that, if a comparable is held to be excludible in one case, it shall always be excluded in decisions to follow subsequently. Thus, while deciding comparability, decisions cited definitely would be perused from this angle by us.

Issues Involved:
1. Adjustment to the arm's length price (ALP) of international transactions.
2. Jurisdictional error in the reference to the Transfer Pricing Officer (TPO).
3. Upward adjustment to the ALP of international transactions related to engineering design services.
4. Validity of initiation of penalty proceedings under section 271(1)(c) of the Income Tax Act.

Issue-wise Detailed Analysis:

1. Adjustment to the Arm's Length Price (ALP) of International Transactions:
The Ld. Assessing Officer (AO) and the Ld. TPO made an adjustment to the ALP of the appellant's international transactions, resulting in an enhancement of returned income by INR 7,44,04,229. The appellant's international transactions included the provision of services, receipt of services, training costs, payment of software charges, and reimbursements received. The appellant used the Transactional Net Margin Method (TNMM) as the most appropriate method and computed the margin using Operating Profit/Operating Cost (OP/OC) as the Profit Level Indicator (PLI). The TPO applied various filters, rejecting certain comparables chosen by the appellant and including new ones, determining an average mean of 27.46% and proposing an adjustment of INR 10,05,97,632, which was later reduced to INR 7,44,04,229 by the Dispute Resolution Panel (DRP).

2. Jurisdictional Error in the Reference to the TPO:
The appellant contended that the reference made by the Ld. AO to the TPO suffered from jurisdictional error as the AO did not record any reasons in the assessment order to conclude that it was "expedient and necessary" to refer the matter to the TPO for computation of the ALP, as required under section 92CA(1) of the Income Tax Act. However, this ground was considered general in nature and did not require adjudication.

3. Upward Adjustment to the ALP of International Transactions Related to Engineering Design Services:
The appellant disputed the inclusion and exclusion of certain comparables by the Ld. TPO. The Tribunal undertook a comparability analysis based on the Functions, Assets, and Risks (FAR) profile of the appellant, who provided engineering design and related services to its affiliate on a cost-plus basis. The Tribunal analyzed the following comparables:

- Kitco Ltd.: Rejected as it is involved in executing huge projects with a motive to earn profits, which is dissimilar to the appellant's functional profile.
- Project and Development India Ltd.: Rejected due to functional dissimilarity as it provides engineering and consultancy services directly to clients.
- TCE Consulting Engineers Ltd.: Rejected as it provides high-end technical services and is involved in complex engineering projects, which are not comparable to the appellant's limited functions.
- Mahindra Consulting Engineers Ltd.: Rejected due to its engagement in highly technical infrastructure engineering and consulting services, which are functionally different from the appellant's services.
- Tismo Technology Solutions Pvt. Ltd.: Remanded back to the TPO for verification of financials as it passes through all filters applied by the TPO.

4. Validity of Initiation of Penalty Proceedings Under Section 271(1)(c) of the Income Tax Act:
The appellant raised concerns about the validity of the initiation of penalty proceedings under section 271(1)(c) of the Act. However, this ground was considered premature and did not require adjudication.

Conclusion:
The appeal filed by the assessee was allowed, with specific directions for the inclusion/exclusion of comparables based on the detailed analysis of their functional profiles. The Tribunal emphasized the importance of Rule 10B(2) of the Income Tax Rules, 1962, in the comparability analysis and directed the TPO to verify the financials of Tismo Technology Solutions Pvt. Ltd. The other grounds raised by the assessee were either general or premature and did not require adjudication.

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