2019 (11) TMI 1094 - AT - Income Tax

TP Adjustment - Comparable selection - HELD THAT - Companies functionally dissimilar with that of assessee provides who Engineering services (including preparation of engineering packages equipment designs etc.) and Technical assistance services (including providing engineers for supervision) to HTAS for their global projects (including projects in India) need to be deselected from final list. Adjustment in the margin due to different risk profile of the comparable companies - HELD THAT - AR as well as Ld. DR for the revenue brought to notice of the Bench that in AY 2009-10 and 2010-11 this issue has been restored back to the TPO/AO by the Tribunal vide order 2017 (5) TMI 1648 - ITAT DELHI AND 2018 (12) TMI 1563 - ITAT DELHI . We are of the considered view that identical issue of this year is also required to be remanded back to the TPO/AO to decide afresh after providing an opportunity of being heard to the assessee.

Summary

Issues Involved:
1. Validity of the Transfer Pricing Order due to lack of Show Cause Notice.
2. Exclusion of M/s Mahindra Engineering Services Ltd. from the list of comparables.
3. Adjustment in the value of international transactions, including the selection and rejection of comparable companies and risk profile adjustments.
4. Initiation of penalty proceedings under Section 271(l)(c).

Detailed Analysis of the Judgment:

1. Validity of the Transfer Pricing Order due to lack of Show Cause Notice:
- Ground No. 1: The taxpayer argued that the Transfer Pricing Order (TPO) was invalid because no Show Cause Notice (SCN) was issued, thus denying the opportunity to be heard. However, this ground was dismissed as it was not pressed by the taxpayer's Authorized Representative (AR).

2. Exclusion of M/s Mahindra Engineering Services Ltd. from the list of comparables:
- Ground No. 2 and 3 (Exclusion of Comparables): The taxpayer sought the exclusion of Mahindra Consulting Engineers Ltd., Mitcon Consultancy & Engg. Services Ltd., and HSCC (INDIA) Ltd. from the list of comparables.
- Mahindra Consulting Engineers Ltd.: The taxpayer argued for exclusion due to Mahindra's high related party transactions (RPT) of 40.60%, which failed the TPO's own RPT filter of 25%. The Tribunal agreed and ordered the exclusion of Mahindra from the final set of comparables.
- Mitcon Consultancy & Engg. Services Ltd.: The taxpayer argued for exclusion due to functional dissimilarity and failure of the revenue from services filter (75%). The Tribunal agreed, noting that Mitcon's revenue from consultancy was only 55.65%, and ordered its exclusion.
- HSCC (INDIA) Ltd.: The taxpayer argued for exclusion due to HSCC being a government company with unusually high margins and functional dissimilarity. The Tribunal agreed, noting that HSCC's functions were dissimilar to the taxpayer's, and ordered its exclusion.

3. Adjustment in the value of international transactions, including the selection and rejection of comparable companies and risk profile adjustments:
- Ground No. 3 (Inclusion of Comparables): The taxpayer sought the inclusion of Petron Engineering Construction Ltd., Simon India Ltd., and Toyo Engineering Ltd. in the list of comparables.
- Petron Engineering Construction Ltd.: The Tribunal found Petron to be a suitable comparable based on previous years' decisions and ordered its inclusion.
- Simon India Ltd.: The Tribunal found Simon to be a suitable comparable based on previous years' decisions and ordered its inclusion, subject to verification of financials.
- Toyo Engineering Ltd.: The Tribunal remanded the matter back to the TPO/AO for fresh consideration, as the annual reports were not on record.
- Ground No. 3b: The taxpayer contested the rejection of risk adjustment due to different risk profiles. The Tribunal noted that this issue had been remanded back in previous years and directed the TPO/AO to reconsider the matter afresh, providing an opportunity for the taxpayer to present evidence.

4. Initiation of penalty proceedings under Section 271(l)(c):
- Ground No. 4: The Tribunal did not specifically address this ground in the detailed analysis provided.

Conclusion:
- The appeal filed by the taxpayer was allowed for statistical purposes, with directions for the TPO/AO to reconsider certain issues afresh after providing an opportunity for the taxpayer to present evidence. The Tribunal ordered the exclusion of certain comparables and the inclusion of others, subject to verification. The matter of risk adjustment was also remanded back for fresh consideration.