2024 (3) TMI 1382 - HC - Income Tax

TP Adjustment - comparable selection - exclusion of Larsen and Toubro Infotech Ltd. L T , Wipro Technology Service Ltd. Wipro and Zylog Systems Ltd. Zylog from the list of comparables - HELD THAT - Insofar as the case of L T is concerned, it appears to have been urged before the ITAT that although financials of that entity were on record, it was impossible to bifurcate and identify the revenues that may have been obtained by it from software development services and products with precision. Rejection of Wipro as a comparable and in respect of which the ITAT found that Wipro had rendered similar services pertaining to software development and consequently was functionally similar to the assessee. However, the aforesaid comparable came to be excluded in light of the tainted and controlled transactions which it had with Citi Technology Services Ltd. Zylog is concerned, the reasoning for its exclusion is identical to that ascribed to L T Ltd. In that view of the matter and on an overall conspectus of the aforesaid, we find no infirmity in the view as expressed by the ITAT. No substantial question of law.

Issues:
1. Exclusion of Larsen and Toubro Infotech Ltd., Wipro Technology Service Ltd., and Zylog Systems Ltd. as comparables for transfer pricing determination.
2. Whether the ITAT erred in law and on facts in excluding the above companies.
3. Whether the ITAT laid down stringent standards of comparability.
4. Whether the ITAT erred in excluding comparables when pre-conditions in Rule 10(B)(2) of the Income Tax Rules were not satisfied.

Analysis:
1. The primary issue in this case revolves around the exclusion of Larsen and Toubro Infotech Ltd. (L&T), Wipro Technology Service Ltd. (Wipro), and Zylog Systems Ltd. as comparables for the transfer pricing exercise. The ITAT excluded these companies based on various grounds, including the inability to identify specific revenues from software development services for L&T, tainted transactions for Wipro due to its acquisition by Wipro Ltd., and similar reasoning for Zylog as for L&T.

2. Regarding L&T, the ITAT found that the financials did not allow for a precise breakdown of revenues from software services and products, leading to its exclusion as a comparable. The ITAT emphasized the importance of functional similarity at the entity level with the assessee for comparability analysis, ultimately directing the exclusion of L&T from the final set of comparables.

3. In the case of Wipro, the ITAT acknowledged the functional similarity of services but excluded it due to tainted transactions with Citi Technology Services Ltd. The ITAT highlighted the acquisition of Wipro Technology Services Ltd. by Wipro Ltd., which led to revenue generation from software services through a master service agreement with Citigroup Inc., thereby disqualifying it as a comparable uncontrolled transaction.

4. The exclusion of Zylog followed a similar rationale to L&T, based on dissimilarities with the assessee at the entity level. The ITAT's decision to exclude these companies was supported by the specific provisions of Rule 10(B)(2) of the Income Tax Rules, which require certain pre-conditions to be met for comparability analysis.

5. The ITAT's approach to comparability analysis was challenged by the Revenue, questioning the stringency of standards and the failure to consider the flexibility provided in determining the Arm's Length Price (ALP). However, the High Court upheld the ITAT's decision, finding no infirmity in the exclusion of the companies and dismissing the appeal for lack of substantial legal questions.

6. Overall, the judgment reaffirms the importance of accurate comparability analysis in transfer pricing exercises, ensuring that entities selected as comparables are functionally similar and meet the necessary criteria as per the Income Tax Rules. The decision underscores the significance of detailed financial data and the impact of related party transactions on comparability assessments.

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