2020 (3) TMI 575 - AT - Income Tax

TP Adjustment - comparable selection - HELD THAT - Companies functionally different with that of assessee as engaged in software services need to be deselected as comparable. Interest on refund under Section 244A(1) - HELD THAT - We observe that the interest on refund either it can be directly given by the Department to the assessee or as in the present case, suppose if some tax liability is arising with regard to the assessee in respect of the earlier years then the interest on the refund amount if adjusted vis- -vis those outstanding tax liability i.e. also deemed payment of interest. It has been held in the case of Avada Trading Co. (P.) Ltd. 2006 (1) TMI 465 - ITAT MUMBAI that interest on refund under Section 244A(1) would be assessable in the year in which it is granted and not in the year in which proceedings under Section 143(1)(a) attain finality. Therefore, interest on refund whenever it is granted, it is assessable in that year itself and if it is adjusted with any prior tax liability of earlier years and such interest is in turn paid to the Government Account that also is payment of interest to the assessee, in such case, there is no need for any intimation separately. Hence, this ground of appeal raised by the assessee is dismissed.

Issues Involved:
1. Transfer Pricing Adjustment
2. Exclusion of Comparable Companies
3. Inclusion of Comparable Companies
4. Working Capital Adjustment
5. Disallowances/Additions Other than Transfer Pricing Adjustment
6. Initiation of Penalty Proceedings

Detailed Analysis:

1. Transfer Pricing Adjustment:
The appeal by the assessee pertains to "Transfer Pricing Adjustment" and "Corporate Tax." The primary contention is the exclusion of certain comparable companies from the final list of comparables for the software development service segment.

2. Exclusion of Comparable Companies:
(A) Persistent Systems Limited:
The TPO included Persistent Systems Limited based on turnover filters and segment reporting. However, the Tribunal, referencing previous cases like Symantec Software India Private Limited vs. DCIT, found Persistent Systems Limited functionally different due to its engagement in IT services and software products without segmental information. The Tribunal directed the AO/TPO to exclude Persistent Systems Limited from the final list of comparables.

(B) Thirdware Solutions Limited:
The TPO included Thirdware Solutions Limited, but the Tribunal, citing cases like Symantec Software India Private Limited vs. DCIT, found it functionally dissimilar due to its engagement in software development implementation, support services, and software products. The Tribunal directed the AO/TPO to exclude Thirdware Solutions Limited from the final list of comparables.

(C) Cigniti Technologies Limited:
The TPO included Cigniti Technologies Limited, but the Tribunal, referencing cases like Avaya India (P) Ltd. vs. ACIT, found it engaged primarily in software testing services and involved in an extraordinary event of acquisition. The Tribunal directed the AO/TPO to exclude Cigniti Technologies Limited from the final list of comparables.

(D) Mindtree Limited:
The TPO included Mindtree Limited, but the Tribunal, referencing cases like M/s. Alcatel-Lucent India Ltd. vs. Addl. CIT, found it engaged in diverse business activities and research and development, making it functionally different. The Tribunal directed the AO/TPO to exclude Mindtree Limited from the final list of comparables.

3. Inclusion of Comparable Companies:
(E) Akshay Software Technologies Ltd:
The TPO excluded Akshay Software Technologies Ltd., citing its involvement in professional services akin to staffing rather than software services. The Tribunal upheld the exclusion, agreeing with the DRP's findings that the company's revenue was primarily from professional services.

4. Working Capital Adjustment:
The assessee argued that working capital adjustment should always be positive. The Tribunal, referencing cases like Adaptec (India) P Ltd. vs. ACIT, remitted the issue to the TPO/AO for reconsideration, emphasizing the need to align with judicial precedents and the specific facts of the case.

5. Disallowances/Additions Other than Transfer Pricing Adjustment:
The assessee contested the addition of INR 25,84,042 as interest on income tax refund. The Tribunal, citing Avada Trading Co. (P.) Ltd. vs Assistant Commissioner Of Income Tax, held that interest on refund is assessable in the year it is granted, even if adjusted against prior tax liabilities. The Tribunal dismissed this ground of appeal.

6. Initiation of Penalty Proceedings:
The assessee challenged the initiation of penalty proceedings under section 271(1)(c) of the Act. The Tribunal deemed this challenge premature and rejected it.

Conclusion:
The appeal was partly allowed for statistical purposes, with specific directions for the exclusion and inclusion of certain comparable companies and reconsideration of the working capital adjustment. The Tribunal upheld the addition of interest on the income tax refund and rejected the premature challenge to penalty proceedings.

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