2015 (7) TMI 241 - AT - Income Tax

Transfer pricing adjustment - Exclusion of M/s. Oil Field Instrumentation India Ltd., Celestial Labs, Ltd., and Agile Electric Technologies Pvt. Ltd. as comparables - Held that - The learned CIT(A) has rejected the aforesaid three companies as comparables based on functional differences vis-a-vis the assessee also relying on the decision of the ITAT, Mumbai Bench in the case of Tevapharm India Pvt. Ltd. 2011 (12) TMI 284 - ITAT MUMBAI for Assessment Year 2007-08 wherein these three companies were rejected as comparables in respect of an R&D Service Provider. Before us, no material evidence has been brought on record by revenue to justify the inclusion of these three companies in the list of comparables. Whether assessee is eligible for standard deduction of 5% from the ALP under the proviso to section 92C(2)? - Held that - The Income Tax Act, 1961 has been amended with retrospective effect from 1.4.2002 by the introduction of a clarificatory amendment in which Section 92C(2A) was inserted by Finance Act, 2012. This new section mandates that if the arithmetical mean price falls beyond /- 5% from the price charged in the international transactions, then the assessee does not have any option referred to in Section 92C(2) of the Act. Thus, as per the above amendment, it is clear that the /- 5% variation is only to justify the price charged for international transactions and not for adjustment purposes. The aforesaid amendment brought about by Finance Act, 2012 has settled the issue and accordingly the 5% standard deduction benefit is not allowable to assessees. Thus the decision of the learned CIT(A) in the impugned order on this issue is reversed. - Decided in favour of revenue.

Issues Involved:
1. Exclusion of certain companies from the list of comparables by the CIT(A).
2. Eligibility for a standard deduction of 5% from the Arm's Length Price (ALP).
3. Petition for condonation of delay in filing the Cross Objections (C.O.).

Issue-wise Detailed Analysis:

1. Exclusion of Certain Companies from the List of Comparables:

The Revenue appealed against the CIT(A)'s decision to exclude Oil Field Instrumentation India Ltd., Celestial Labs Ltd., and Agile Electric Technologies Pvt. Ltd. from the list of comparables. The CIT(A) found these companies functionally different from the assessee, who is engaged in R&D services. The CIT(A) relied on the ITAT Mumbai's decision in the case of Tevapharm India Pvt. Ltd., which held that Oil Field Instrumentation India Ltd. and Celestial Labs Ltd. were not comparable to an R&D service provider due to their different functional profiles. Agile Electric Technologies Pvt. Ltd. was excluded due to significant related party transactions (RPT) exceeding 15% of turnover, aligning with the ITAT Bangalore's decision in the case of 24/7 Customer.Com Pvt. Ltd. The Tribunal upheld the CIT(A)'s decision, agreeing that these companies were functionally different and had significant RPTs, thus dismissing Revenue's grounds on this issue.

2. Eligibility for a Standard Deduction of 5% from the ALP:

The Revenue challenged the CIT(A)'s decision allowing the assessee a standard deduction of 5% from the ALP under the proviso to section 92C(2) of the IT Act. The Tribunal noted the retrospective amendment to the Income Tax Act by Finance Act, 2012, which clarified that the +/- 5% variation is only to justify the price charged for international transactions and not for adjustment purposes. Consequently, the Tribunal reversed the CIT(A)'s decision, disallowing the 5% standard deduction benefit to the assessee.

3. Petition for Condonation of Delay in Filing the Cross Objections (C.O.):

The assessee filed a petition to condone a 72-day delay in filing the C.O., attributing the delay to key management personnel being preoccupied with acquisition activities. The Tribunal found the reasons for the delay to be bona fide and reasonable, thus condoning the delay and admitting the C.O. for adjudication.

Other Grounds in Cross Objections:

The assessee's C.O. raised general grounds and specific issues regarding the rejection of certain comparables and transfer pricing analysis. However, these grounds were not specifically urged before the Tribunal and were dismissed as infructuous. The Tribunal also dismissed the ground concerning the inclusion of Max Neema Medical International Ltd. as a comparable, as the exclusion of the three disputed companies negated the need for further adjudication on this point.

Conclusion:

The Tribunal partly allowed the Revenue's appeal, reversing the CIT(A)'s decision on the 5% standard deduction. It upheld the CIT(A)'s exclusion of the three companies from the list of comparables, dismissed the assessee's C.O. as infructuous, and condoned the delay in filing the C.O. The order was pronounced in the open court on 10th April 2015.

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