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2020 (10) TMI 664 - AT - Income TaxTP Adjustment - Comparable selection - benchmarking of international transaction of provision of Ancillary Management Support Services by providing marketing support services to the Associated Enterprises - HELD THAT - Apitco Ltd. and GPCL rejected on the ground that Government companies are not comparable to business concerns. See PHILIP MORRIS SERVICES INDIA SA 2019 (1) TMI 653 - DELHI HIGH COURT . Exclusion of TSR Darashaw Ltd. as no segmental information was available in respect of the different segments operated by the company. HSCC (India) Ltd. - assessee claims that because of difference in provisions of doubtful debts, the margins have been incorrectly computed at 18.32% whereas the correct margin is 8.96% - We direct the Assessing Officer/TPO to re-compute the margins of the said concern i.e. HSCC (India) Ltd. by including provision of doubtful debts as an operating item and re-compute the mean margin of assessee. Specturm Business Solution Ltd. - Because of the similarity of functions being performed by both the companies, we direct the inclusion of Specturm Business Solution Ltd. in the final list of comparables.
Issues Involved
1. Adjustment to the Arm's Length Price (ALP) of the Appellant's international transaction. 2. Inclusion of "Design and engineering expenses" in operating margin computation. 3. Inclusion of certain companies as comparables. 4. Rejection of certain companies as comparables. 5. Correct computation of margins for HSCC (India) Limited. 6. Risk adjustment under Rule 10B(1)(e) of the Rules. 7. Use of multiple year/prior years' data. 8. Charging of interest under section 234B. 9. Initiation of penalty proceedings under section 271(1)(c). Issue-wise Detailed Analysis 1. Adjustment to the Arm's Length Price (ALP) The primary issue in the appeal was the benchmarking of the international transaction of provision of Ancillary Management Support Services. The assessee applied the Transactional Net Margin Method (TNMM) with Operating Profit to Total Cost (OP/TC) as the Profit Level Indicator (PLI), calculating margins at 10.28% against the average of 9.84% for six comparables. The TPO, however, selected eight comparables with a mean margin of 24.12%, leading to an adjustment of ?1,76,76,141, later revised to ?1,30,45,059. 2. Inclusion of "Design and engineering expenses" The CIT(A) confirmed the TPO's action of including "Design and engineering expenses" in the operating margin computation for AE transactions. The assessee argued these expenses were attributable to non-AE activities and should not be included, but this contention was not upheld. 3. Inclusion of Certain Companies as Comparables The assessee objected to the inclusion of Apitco Ltd., Global Procurement Consultants Ltd. (GPCL), and TSR Darashaw Ltd. as comparables, arguing they were government entities engaged in high-end technical services or other non-comparable activities. The Tribunal agreed with the assessee, citing the Hon’ble Delhi High Court in Philip Morris and other Tribunal decisions, directing the exclusion of these companies from the final list of comparables. 4. Rejection of Certain Companies as Comparables The assessee also contested the rejection of Spectrum Business Solutions Ltd. (SBSL). The Tribunal found merit in the assessee's argument, noting the similarity in functional profiles between the assessee and SBSL, and directed its inclusion in the final list of comparables. 5. Correct Computation of Margins for HSCC (India) Limited The assessee claimed the margin for HSCC (India) Ltd. was incorrectly computed due to the treatment of provisions for doubtful debts. The Tribunal directed the Assessing Officer/TPO to re-compute the margins by including the provision for doubtful debts as an operating item. 6. Risk Adjustment under Rule 10B(1)(e) The assessee's plea for a risk adjustment under Rule 10B(1)(e) was not pressed and hence dismissed. 7. Use of Multiple Year/Prior Years' Data The ground concerning the use of multiple year/prior years' data was also not pressed and thus dismissed. 8. Charging of Interest under Section 234B The issue of charging interest under section 234B was deemed consequential and dismissed. 9. Initiation of Penalty Proceedings under Section 271(1)(c) The initiation of penalty proceedings under section 271(1)(c) was considered pre-mature and dismissed. Conclusion The Tribunal partly allowed the appeal, directing the exclusion of certain government comparables, inclusion of Spectrum Business Solutions Ltd., and re-computation of margins for HSCC (India) Ltd. Other grounds were either not pressed or dismissed.
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