2014 (8) TMI 863 - AT - Income Tax

Transfer pricing adjustments - Adjustment in the operating margin of CDR unit Held that - The TPO has computed the profit margin of the CDR unit, which was rendering the services not only to the associated concerns outside India but also to the other units of the Assessee company, by taking the revenue received from the export of services to the associated concerns and without taking any revenue into consideration in respect of the services rendered by the CDR unit of the Assessee to the other unit in Goa - the TPO has considered the total operating costs of the CDR unit which has been incurred by the unit not only in respect of services rendered to the associated concerns outside India but also in respect of services rendered to the unit in India and on that basis the operating profit was worked out. While computing the true profit of a particular division, it is necessary that the value should be assigned in respect of services received by the other unit and it should be taken as part of the revenue of that particular unit - the TPO has taken the total operating cost of the CDR unit which consists of the cost not only in respect of the services rendered to the associated enterprises but also in respect of the services rendered to the Goa plant by the CDR unit - since the total cost of the CDR unit has been taken, the notional revenue in respect of Goa plant should also be considered while computing the net operating profit - no addition in respect of IT-enabled engineering services can be made Decided against Assessee. Adjustment of 12.31% of marketing expenses Held that - CIT(A) rightly was of the view that total marketing expenses, including those incurred in the company s European and Indian offices adopted - the TPO had netted off the Dubai office expenditure against the Dubai office income, without considering the ratio of total marketing expenses to total non-AE export sales as directed by the CIT(A) - no interference is called for in the order of CIT(A) - CIT(A) has rightly directed the AO to allow adjustment of 12.31% of the marketing expenses after verifying the correctness of the data submitted by the Assessee for allowing relief- Decided against Revenue. Deletion of the addition Held that - The purchase of the components and spares from the AEs constituted an insignificant 3% of the purchases - the Assessee has made purchases to the extent of more than ₹ 3 crores and in respect of other products, if taken together, the average price paid for imports are much lower than the average price of the local vendors - there is no inconsistency or illegality in the finding of the CIT(A) Decided against Revenue. Claim of Depreciation on Goodwill Held that - Following the decision in CIT v. Smifs Securities Ltd. 2012 (8) TMI 713 - SUPREME COURT - goodwill is an asset under explanation 3(b) to Sec. 32(1) Decided against Revenue.

Issues Involved:
1. Calculation of operating margin for comparable companies in the ITES sector.
2. Adjustment in operating margin of CDR unit for in-house work.
3. Application of turnover filter for selecting comparable companies.
4. Selection of Vishal Information Technologies and Tulsyan Technologies as comparable companies.
5. Relief for business and operational risk adjustment.
6. Functional differences between the appellant's CDR unit and comparable companies.
7. Exclusion of certain companies as comparables in the ITES segment.
8. Adjustment for marketing expenses.
9. Addition on account of TP adjustment on import of components and spares.
10. Claim of depreciation on goodwill.

Detailed Analysis:

1. Calculation of Operating Margin for Comparable Companies:
The CIT(A) calculated the operating margin of comparable companies engaged in the ITES sector at 20.96%, while the appellant company calculated it at 13.50%. The Tribunal noted that the CIT(A) had directed the AO to apply a turnover filter at both the lower and upper ends, excluding companies with turnover above Rs. 200 crore, and recalculated the average margin of comparables at 21.96%.

2. Adjustment in Operating Margin of CDR Unit for In-House Work:
The Tribunal observed that the CDR unit rendered services to both associated enterprises abroad and the appellant's Goa plant. The TPO did not consider the notional revenue for in-house services to the Goa plant. Including this notional revenue, the Tribunal recalculated the operating profit margin at 26.06%, higher than the TPO's margin of 23.68%, thus negating the need for any addition.

3. Application of Turnover Filter:
The Tribunal upheld the CIT(A)'s application of a turnover filter, excluding companies with turnover above Rs. 200 crore. This decision was based on the principle that size matters in business, as upheld in various Tribunal decisions.

4. Selection of Vishal Information Technologies and Tulsyan Technologies:
The Tribunal agreed with the CIT(A) that these companies should not be excluded merely because they outsourced tasks. However, the Tribunal noted that companies with different business models or super profits should be excluded, referencing the case of Maersk Global Services Centre.

5. Relief for Business and Operational Risk Adjustment:
The Tribunal noted that the CDR unit was a captive service provider bearing less risk than independent enterprises. The CIT(A) did not address this aspect, but the Tribunal found merit in the appellant's argument for risk adjustment.

6. Functional Differences Between CDR Unit and Comparable Companies:
The Tribunal agreed with the appellant that the CDR unit, primarily providing engineering services related to water treatment, was functionally different from full-fledged IT companies selected by the TPO. The Tribunal emphasized the need for comparability in economic characteristics.

7. Exclusion of Certain Companies as Comparables:
The Tribunal supported the exclusion of companies like Wipro Ltd., Maple E-Solutions Ltd., and Nucleus Netsoft and GIS (India) Ltd., based on size, related party transactions, and business reputation issues. The Tribunal directed the AO to exclude these companies from the final set of comparables.

8. Adjustment for Marketing Expenses:
The CIT(A) allowed an adjustment of 12.31% for marketing expenses, consistent with the previous year's direction confirmed by the ITAT. The Tribunal upheld this adjustment, noting that the TPO had wrongly considered only Dubai office expenses.

9. Addition on Account of TP Adjustment on Import of Components and Spares:
The CIT(A) deleted the addition of Rs. 1,07,017/- made by the TPO, finding errors and inconsistencies in the TPO's analysis. The Tribunal upheld this deletion, noting that the average price paid for imports was lower than that paid to local vendors.

10. Claim of Depreciation on Goodwill:
The Tribunal dismissed the Revenue's ground on this issue, referencing the Supreme Court decision in CIT v. Smifs Securities Ltd., which held that goodwill is an asset under explanation 3(b) to Sec. 32(1).

Conclusion:
The Tribunal dismissed the Revenue's appeal and partly allowed the appellant's appeal, providing relief on various grounds related to transfer pricing adjustments, selection of comparables, and marketing expenses. The Tribunal emphasized the importance of comparability and consistency in applying transfer pricing principles.

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