2023 (1) TMI 401 - AT - Income Tax

TP Adjustment - comparability of Assessee s Software Development Services segment - HELD THAT - . Respectfully following the decision of the coordinate bench of the Tribunal in Sandisk India Device Design Centre P. Ltd. 2022 (6) TMI 1299 - ITAT BANGALORE we exclude these companies viz., Persistent Systems Ltd., Infosys Ltd., Thirdware Solutions Ltd., L T Infotech Ltd., Nihilent Ltd., Aspire Systems India Pvt. Ltd. Infobeans Technologies Ltd., from the comparables. Companies functionally dissimilar with that of assessee need to be deselected. Interest on receivables - TPO treated the trade receivables beyond 60 days as an international transaction and adopted notional interest rate of 4.985% being LIBOR-6 months 450 basis points, without providing the method of computation of such rate to the Assessee - HELD THAT - As decided in M/s. Barracuda Networks India Private Limited 2022 (5) TMI 322 - ITAT BANGALORE Determination of ALP in respect of the international transaction of giving extended credit period for receivables should be directed to be examined afresh by the AO/TPO on the guidelines laid down in the decision referred to in the earlier paragraph, after affording Assessee opportunity of being heard. As held in the aforesaid decision the prime lending rate should not be considered and this reasoning will apply to adopting short term deposit interest rate offered by State Bank of India (SBI) also. The rate of interest would be on the basis of the currency in which the loan is to be repaid. We hold and direct accordingly. Respectfully following the above decision of the coordinate bench we remit the issue back to the AO/TPO with a direction to examine the issue afresh after giving a reasonable opportunity of being heard to the assessee. The AO/TPO is also directed to consider the ratio laid down in the above decision while considering the issue afresh.

Issues Involved:
1. Exclusion of certain companies as comparables.
2. Inclusion of certain companies as comparables.
3. Additional grounds for inclusion of comparables.
4. Interest on outstanding receivables.

Detailed Analysis:

1. Exclusion of Certain Companies as Comparables:
The Tribunal addressed the exclusion of Nihilent Ltd., Persistent Systems Ltd., Aspire Systems India Pvt. Ltd., Infosys Ltd., Thirdware Solutions Ltd., L&T Infotech Ltd., and Infobeans Technologies Ltd. The assessee argued these companies are functionally different. The Tribunal relied on the decision in Sandisk India Device Design Centre P. Ltd., excluding these companies due to differences in business functions, presence of significant intangibles, or lack of segmental details. The Tribunal noted:
- Persistent Systems Ltd. and Infosys Ltd. were excluded due to product development and significant intangibles.
- Thirdware Solutions Ltd. was excluded due to product development and revenue from licenses.
- L&T Infotech Ltd. was excluded due to extraordinary events and brand intangibles.
- Nihilent Ltd. and Infobeans Technologies Ltd. were excluded due to lack of segmental financials.
- Aspire Systems India Pvt. Ltd. was excluded due to high related party transactions.

2. Inclusion of Certain Companies as Comparables:
The Tribunal considered the inclusion of Evoke Technologies Ltd. and Synfosys Business Solutions Ltd.:
- Evoke Technologies Ltd.: The TPO excluded it due to unaudited branch revenue. The Tribunal remitted the issue back to the TPO for fresh consideration, citing the decision in Mindteck India Ltd.
- Synfosys Business Solutions Ltd.: The TPO excluded it due to persistent loss and export revenue filter. The Tribunal found the DRP's reliance on foreign exchange earnings instead of export turnover incorrect and remitted the issue back to the TPO for fresh consideration.

3. Additional Grounds for Inclusion of Comparables:
The assessee raised additional grounds for including Insummation Technologies Pvt. Ltd. and Sagarsoft India Ltd.:
- Insummation Technologies Pvt. Ltd.: The Tribunal noted the DRP's failure to consider the plea properly and remitted the issue back to the TPO for fresh consideration, following the decision in Prism Network P. Ltd.
- Sagarsoft India Ltd.: The Tribunal remitted the issue back to the TPO for fresh consideration, following the decision in Mindteck India Ltd., emphasizing the need to verify if the company suffered losses in all previous financial years.

4. Interest on Outstanding Receivables:
The TPO treated trade receivables beyond 60 days as an international transaction and applied a notional interest rate, later revised by the DRP to the SBI short-term deposit rate. The assessee argued it was debt-free and not required to pay interest, and that interest on payables should be netted off. The Tribunal, following the decision in M/s. Barracuda Networks India Private Limited, remitted the issue back to the AO/TPO for fresh examination, emphasizing the need to consider the currency in which the loan is repaid for determining the interest rate.

Conclusion:
The Tribunal partly allowed the appeal, excluding certain companies as comparables, remitting the inclusion of others back to the TPO for fresh consideration, and directing a fresh examination of the interest on outstanding receivables. The Tribunal emphasized the need for accurate adjustments and reasonable opportunities for the assessee to be heard.

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