2019 (7) TMI 296 - AT - Income Tax

TP Adjustment - comparable selection - HELD THAT - Assessee being resident corporate assessee is stated to be engaged in the business of providing IT enabled services (ITeS) to Griffin Group entities in finance/accounts related services such as invoicing, refunds processing and other services such as ticketing, reservations etc. - Thus companies thus companies functionally dissimilar with that of assessee need to be deselected from final list. Working capital adjustment from PLI of comparable entity in terms of Rule 10B(3) - HELD THAT - The Ld. DRP has denied the same by observing that no working capital adjustment was made by the assessee in its TP study report and secondly, it was observed that fees for services is not impacted in the same manner by credit period offered or received as is the case with sale of goods. Although Ld. AR has pleaded for this adjustment on the strength of certain judicial pronouncements, however, no convincing case has been made out before us so as to justify the grant of aforesaid adjustment. This ground stands dismissed. Transfer pricing adjustment of the book profits u/s 115JB - HELD THAT - We direct lower authorities to exclude Transfer Pricing adjustment, if any, while computing Book Profits u/s 115JB. Accordingly, this ground stands allowed. SEE OWENS CORNING (INDIA) P. LTD. VERSUS DCIT CIR 7 (1) , MUMBAI 2016 (5) TMI 1098 - ITAT MUMBAI and M/S. CASH EDGE INDIA (PVT.) LTD. VERSUS W ITO, WARD 5 (3) , NEW DELHI 2016 (1) TMI 598 - ITAT DELHI

Summary

Issues Involved:
1. Transfer Pricing Adjustment on ITeS services rendered to the AE.
2. Plus/Minus 5% Tolerance Limit.
3. Adding Transfer Pricing Adjustment to the Book Profit u/s 115JB.

Detailed Analysis:

1. Transfer Pricing Adjustment on ITeS Services Rendered to the AE:
The assessee, engaged in providing IT enabled services (ITeS) to Griffin Group entities, contested the final assessment order for AY 2012-13. The dispute centered around the computation of Arm's Length Price (ALP) under the Transactional Net Margin Method (TNMM). The assessee's methodology, which used three years' data and no export filter, was deemed unreliable by the Transfer Pricing Officer (TPO). The TPO conducted a fresh search, rejecting five out of seven comparables selected by the assessee and identifying six new ones. The final list of comparables included Accentia Technologies Ltd., Universal Print Systems Ltd., BNR Udyog Ltd., and Excel Infoways Ltd. The Dispute Resolution Panel (DRP) upheld the TPO's selection, except for including Acropetal Technologies Ltd., reducing the mean PLI to 21.33% and the TP adjustment to ?1.12 Crores.

The assessee argued for the exclusion of Accentia Technologies Ltd., Universal Print Systems Ltd., BNR Udyog Ltd., and Excel Infoways Ltd. based on functional dissimilarity. The Tribunal agreed, noting that the services provided by these entities were specialized and not comparable to the low-end support services provided by the assessee. Consequently, the Tribunal directed the exclusion of these entities from the comparables list.

2. Plus/Minus 5% Tolerance Limit:
The assessee sought the benefit of the tolerance range of +5%. The Tribunal directed the TPO/AO to grant applicable benefits/concessions as per law, allowing this ground for statistical purposes.

3. Adding Transfer Pricing Adjustment to the Book Profit u/s 115JB:
The assessee contested the addition of the TP adjustment to the book profit u/s 115JB, arguing that such adjustments are not permissible under the law, as affirmed by various judicial decisions. The Tribunal concurred, citing the Supreme Court's decisions in Apollo Tyres, Malayalam Manorama, and HCL Comnet Systems and Services Ltd., which clarified that only adjustments specified in Explanation 1 Section 115JB(2) are permissible. The Tribunal directed the exclusion of the TP adjustment from the book profits, allowing this ground in favor of the assessee.

Conclusion:
The appeal was partly allowed, with the Tribunal directing the exclusion of certain comparables for TP adjustment, granting the benefit of the tolerance range, and excluding the TP adjustment from the book profits u/s 115JB. The order was pronounced in the open court on 03rd July 2019.