2021 (4) TMI 240 - AT - Income Tax

TP Adjustment - comparable selection - functional dissimilarity - HELD THAT - Assessee is a company engaged in the business of software development and 100% subsidiary of Mavenir Systems Inc. US .Companies functionally dissimilar with that of assessee as captive service provider need to be deselected from final list. Working capital adjustment - TPO restricted the working capital adjustment at 1.63% - HELD THAT - As relying on M/S. RAMBUS CHIP TECHNOLOGIES (INDIA) PVT. LTD., BANGALORE AND VICE-VERSA 2015 (7) TMI 1049 - ITAT BANGLORE we direct Ld. AO/TPO to recompute the working capital adjustment in the case of comparables in actual. We note that in all the transfer pricing cases this Tribunal has been directing the Ld. AO/TPO to grant working capital on actual. Present assessee being a captive service provider there is minimal risk undertaken and therefore there is a necessity to provide adjustment to the margins of comparables in the final list to set apart the differences.

Issues Involved:
1. Transfer Pricing adjustments.
2. Rejection of TP documentation.
3. Comparability analysis and filters applied.
4. Consideration of previous financial data.
5. Export earning filter.
6. Provision for bad and doubtful debts.
7. Rejection of specific comparables.
8. Inclusion of specific comparables.
9. Errors in working capital adjustment.
10. Risk differential adjustment.
11. Levying of interest under Section 234B.

Detailed Analysis:

1. Transfer Pricing Adjustments:
The Tribunal addressed the assessee's challenge against the transfer pricing adjustment of INR 2,02,90,530/- made by the AO, TPO, and DRP concerning the software development services provided to its Associated Enterprises (AEs). The Tribunal noted that the ultimate purpose of transfer pricing analysis is to determine the Arms Length Price (ALP) of international transactions by comparing the financials of comparable companies.

2. Rejection of TP Documentation:
The Tribunal reviewed the rejection of the TP documentation maintained by the assessee under Sub-section (3) of Section 92C of the Income-tax Act, 1961. The Tribunal emphasized the need for a thorough comparability analysis to determine the ALP accurately.

3. Comparability Analysis and Filters Applied:
The Tribunal scrutinized the fresh comparability analysis conducted by the TPO, which introduced various filters. The Tribunal directed the exclusion of certain companies like Acropetal Technologies Ltd., E Zest Solutions, E-Infochips Ltd., and ICRA Techno Analytics Ltd. due to functional dissimilarities, lack of segmental data, and other issues.

4. Consideration of Previous Financial Data:
The Tribunal noted the assessee's contention regarding the non-consideration of previous two years' financial data of comparable companies while determining the ALP. The Tribunal did not provide a specific ruling on this issue but focused on the functional comparability of the selected companies.

5. Export Earning Filter:
The Tribunal addressed the assessee's objection to the TPO's application of a 75% export earning filter instead of 25%, which led to a narrower set of comparables. The Tribunal did not explicitly rule on this filter but emphasized the need for accurate functional comparability.

6. Provision for Bad and Doubtful Debts:
The Tribunal considered the assessee's argument that the provision for bad and doubtful debts should be treated as extraordinary in nature. The Tribunal did not provide a specific ruling on this issue but focused on the overall comparability analysis.

7. Rejection of Specific Comparables:
The Tribunal directed the exclusion of Acropetal Technologies Ltd., E Zest Solutions, E-Infochips Ltd., and ICRA Techno Analytics Ltd. due to functional dissimilarities, lack of segmental data, and other issues. The Tribunal relied on previous judicial pronouncements and the functional profiles of these companies to support their exclusion.

8. Inclusion of Specific Comparables:
The Tribunal considered the assessee's request for the inclusion of Akshay Software Technologies Ltd., LGS Global Ltd., and Thinksoft Global Services Ltd. The Tribunal remanded the issue of comparability of these companies for fresh consideration by the AO/TPO.

9. Errors in Working Capital Adjustment:
The Tribunal addressed the errors in the computation of working capital adjustment. The Tribunal directed the AO/TPO to recompute the working capital adjustment on an actual basis, following the consistent view taken by the Tribunal in previous cases.

10. Risk Differential Adjustment:
The Tribunal considered the assessee's argument for an appropriate adjustment towards the risk differential between the assessee and comparable companies. The Tribunal did not provide a specific ruling on this issue but emphasized the need for accurate comparability analysis.

11. Levying of Interest Under Section 234B:
The Tribunal did not explicitly address the issue of levying interest under Section 234B of the Income-tax Act, 1961, in the detailed analysis.

Conclusion:
The Tribunal allowed the appeal filed by the assessee, directing the exclusion of certain comparables and remanding the issue of inclusion of specific comparables for fresh consideration. The Tribunal also directed the AO/TPO to recompute the working capital adjustment on an actual basis. The Tribunal emphasized the importance of accurate functional comparability in determining the ALP of international transactions.

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