2015 (11) TMI 273 - AT - Income Tax

Transfer pricing adjustment - Held that - Vishal Information Technologies Ltd. is not a valid comparable as held in Google India Pvt. Ltd. vs. DCIT, Bangalore (2013 (3) TMI 172 - ITAT BANGALORE) wherein Google India was engaged in the business of software development services and ITES. We are of the opinion that Coral Hub (previously known as Vishal) cannot be used as a comparable and so we direct the AO to exclude this company from the list of comparables. ECLERX SERVICES LIMITED need to be excluded taking into consideration the fact that eClerx is engaged in data analytics, data processing services, pricing analytics, bundling optimization, content operation, sales and marketing support, product data management, revenue management and in addition, eClerx also offered financial services such as realtime capital markets, middle and back-office support, portfolio risk management services and various critical data management services and the Hon ble High Court held that this company is engaged in KPO services and so, this company cannot be compared with the low end service provider like the assessee in this case. We order the exclusion of this company from the set of comparables. INFOSYS BPO - extra ordinary event of amalgamation during the year has helped Infosys BPO in acquiring domains skill sets in the finance, administration space as well as enhanced its global presence with centers at Thailand and Poland. In view of the said extra ordinary event brought to our notice, we exclude Infosys BPO from the list of comparables. WIPRO BPO - Since sufficient information for this comparable is not available, we direct exclusion of this company as a comparable HCL COMNET SYSTEMS & SERVICES LTD is functionally similar to that of the assessee. Ld. AR could not point out any functional difference to our attention. In the said scenario, we uphold the inclusion of the said company in the set of comparables. The assessee fails. GENESYS INTERNATIONAL is into mapping business and it provides geographical information services comprising Photogrammetry, Remote Sensing, Cartography, Data Conversion, related Computer based Services and Information Technology enabled and other related services, which cannot be by any stretch of imagination be said to be comparable to that of the assessee. Since Genesys International Corporation Ltd. is functionally dis-similar with that of the assessee, we direct the TPO to exclude the said company from the list of comparables. ACROPETAL is into software development also and since the segmental information is not available, it would not be safe to rely on the finance of this company. Therefore, we order exclusion of this comparable from the set of comparables.

Summary

Issues Involved:
1. Inclusion/Exclusion of Comparable Companies for Transfer Pricing Analysis.

Detailed Analysis:

1. Inclusion/Exclusion of Comparable Companies for Transfer Pricing Analysis:

i) CORAL HUB (PREVIOUSLY VISHAL INFO TECH):
The assessee objected to the inclusion of Coral Hub in the list of comparables, arguing it was functionally dissimilar and had peculiar economic circumstances. The TPO rejected this, stating that neither the TPO nor the taxpayer considered functional lines within ITES, and the company was engaged in ITES. However, the Tribunal agreed with the assessee, noting that Coral Hub outsourced a significant portion of its services, making it functionally dissimilar. The Tribunal referenced decisions from other cases, such as Google India Pvt. Ltd. and Rampgreen Solutions Pvt. Ltd., to support the exclusion of Coral Hub due to its different business model, which involved significant outsourcing.

ii) ECLERX SERVICES LIMITED:
The assessee argued that Eclerx was a KPO service provider and not comparable to its low-end ITES services. The Tribunal agreed, citing the jurisdictional High Court decision in Rampgreen Solutions Pvt. Ltd., which held that Eclerx's services, such as data analytics and financial services, were not comparable to the low-end ITES provided by the assessee. The Tribunal ordered the exclusion of Eclerx from the list of comparables.

iii) INFOSYS BPO:
The assessee contended that Infosys BPO should be excluded due to its significant brand value, high turnover, and extraordinary events during the year, such as the acquisition of service centers from Philips. The Tribunal noted that the extraordinary event of amalgamation during the year made Infosys BPO incomparable. Consequently, Infosys BPO was excluded from the list of comparables.

iv) WIPRO BPO:
The assessee argued for the exclusion of Wipro BPO due to the unavailability of its complete annual report in the public domain, its high turnover, and substantial sales and marketing expenses. The Tribunal found that without the complete annual report, it was imprudent to use Wipro BPO as a comparable. The Tribunal directed the exclusion of Wipro BPO from the list of comparables, referencing the case of Avaya India (P) Ltd.

v) HCL COMNET SYSTEMS & SERVICES LTD.:
The assessee argued that HCL was an industrial giant with a significantly higher turnover and substantial selling and marketing expenses. However, the Tribunal found HCL functionally similar to the assessee and upheld its inclusion in the set of comparables.

vi) GENESYS INTERNATIONAL:
The assessee contended that Genesys International was engaged in geospatial and content providing services, which were functionally dissimilar to its ITES. The Tribunal agreed, noting that Genesys was into mapping business and provided services like photogrammetry and remote sensing, which were not comparable to the back-office support services provided by the assessee. The Tribunal directed the exclusion of Genesys International from the list of comparables.

vii) ACROPETAL:
The assessee argued that Acropetal was into engineering services and software development, making it functionally dissimilar. The Tribunal found that Acropetal was indeed involved in software development, and since segmental information was not available, it was unsafe to rely on its financials. The Tribunal ordered the exclusion of Acropetal from the set of comparables.

Conclusion:
The appeal of the assessee was partly allowed for statistical purposes, with the Tribunal directing the exclusion of Coral Hub, Eclerx Services Limited, Infosys BPO, Genesys International, and Acropetal from the list of comparables, while upholding the inclusion of HCL Comnet Systems & Services Ltd.