2015 (6) TMI 98 - AT - Income Tax

Transfer pricing adjustment - ALP - excluding Vishal as a comparable - Held that - Merely because the assessee had included a comparable in its TP documentation, it could not be debarred from seeking rejection of that company at a later stage of assessment appellate proceedings. Applying the same principle, the assessee pleads to consider the aforementioned reasons for excluding Vishal as a comparable. Further, under TNMM, minor differences in the business profile of the appellant and the comparables would be evened out. However, selecting only few comparables from the entire comparable set would defeat the meaning of application of TNMM as the most appropriate method. Thus respectfully following the precedents of the Tribunal in the case of M/s TNS India Pvt. Ltd. vs. Addl. CIT Assessment Year 2006-07 (2014 (10) TMI 504 - ITAT HYDERABAD) and M/s Google India Pvt. Ltd. vs. DCIT (2013 (3) TMI 172 - ITAT BANGALORE) we direct the AO to exclude M/s Vishal Information Technologies Ltd. from the list of comparables. - Decided in favour of assesse.

Issues Involved:
1. Validity of the assessment order passed in pursuance to the directions issued by the Dispute Resolution Panel (DRP).
2. Adjustment to the appellant's income based on the arm's length principle for international transactions.
3. Aggregation of Vessel Planning Support Services and Back Office Support Services for economic analysis.
4. Rejection of low-profit/loss-making companies in the comparable set.
5. Consideration of current year data for comparability analysis.
6. Denial of working capital adjustment.
7. Retention of high-profit margin companies in the final comparable set.
8. Risk profile assessment of the appellant.
9. Denial of the benefit of the +/- 5 percent range as per the proviso to section 92C(2) of the Act.

Issue-wise Detailed Analysis:

1. Validity of the Assessment Order:
The appellant contended that the assessment order passed following the directions of the DRP was vitiated as the DRP issued a non-speaking order without appropriate application of mind. The Tribunal noted that the DRP upheld the adjustments made by the AO/TPO without adequate reasoning, which justified the appellant's grievance.

2. Adjustment to Income Based on Arm's Length Principle:
The appellant argued against the adjustment of Rs. 17,324,009 to its income, claiming that its international transactions for Back Office and Vessel Planning Support Services were at arm's length. The Tribunal examined the methodologies and comparables used by the TPO and found discrepancies in the approach, particularly in the selection of high-profit comparables.

3. Aggregation of Services for Economic Analysis:
The appellant contended that the TPO erred in aggregating Vessel Planning Support Services and Back Office Support Services for economic analysis, as these activities have distinct functional profiles. The Tribunal agreed that these services should be analyzed separately due to their different functional profiles.

4. Rejection of Low-Profit/Loss-Making Companies:
The TPO's rejection of low-profit/loss-making companies from the comparable set was challenged by the appellant. The Tribunal found that the TPO's criteria for rejection were inconsistently applied, leading to the retention of only high-profit companies, which skewed the comparability analysis.

5. Consideration of Current Year Data:
The appellant argued that the TPO's insistence on using only current year data for comparables was unreasonable, as this data was not necessarily available at the time of preparing the TP documentation. The Tribunal noted that the use of multiple-year data could provide a more accurate comparability analysis.

6. Denial of Working Capital Adjustment:
The appellant's request for a working capital adjustment was denied by the TPO. The Tribunal found that the TPO did not provide a valid basis for this denial and that such adjustments are necessary to ensure a fair comparison of operating margins.

7. Retention of High-Profit Margin Companies:
The appellant challenged the inclusion of high-profit margin companies in the final comparable set. The Tribunal found that the TPO's selection of comparables was biased towards high-profit companies, which did not reflect the appellant's limited risk-bearing captive services.

8. Risk Profile Assessment:
The appellant argued that the TPO incorrectly assessed it as a risk-bearing entity. The Tribunal agreed, noting that the appellant's functions and risk profile were more aligned with a limited risk-bearing entity, and the TPO's assessment was based on subjective premises.

9. Denial of +/- 5 Percent Range Benefit:
The appellant contended that it was entitled to the benefit of the +/- 5 percent range as per the proviso to section 92C(2) of the Act. The Tribunal noted that the appellant's margin, when adjusted for the exclusion of certain comparables, fell within this range, and thus, the benefit should be granted.

Conclusion:
The Tribunal directed the AO to exclude Vishal Information Technologies Ltd. from the list of comparables and re-compute the appellant's income accordingly. The appeal was allowed for statistical purposes, with the Tribunal emphasizing the need for a fair and consistent approach in transfer pricing assessments.

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