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2016 (6) TMI 1342 - AT - Income TaxTPA - Comparable selection - Rejection of a comparable company (Genesys International Corporation Ltd.) selected by the assessee in the transfer pricing study - Held that - The Department cannot accept or reject comparables to suit its convenience. If the Department has chosen to include Genesys International Corporation Ltd. as comparable on the ground that GIS is a notified ITES in the case of companies which are engaged in the business of processing information relating to insurance claims and the company engaged in the business of voice based call centre services the Department cannot raise plea that the Genesys International Corporation Ltd. is functionally not comparable in case where the assessee is in the business of developing and exporting of computerized embroidery design emblem art works drawings badges and other allied services. Thus in the facts of the case and the decisions of Tribunal discussed above we accept the contention of the assessee and remit the file back to the TPO to consider Genesys International Corporation Ltd. as one of the comparables. Accordingly ground nos. 2 and 4 raised in the concise grounds of appeal are allowed. Capacity utilization - Held that - The capacity utilization adjustment has to be granted where there has been under utilization or lower utilization of the capacity. In the facts of the present case we deem it appropriate to remit the issue back to the file of Assessing Officer to decide this issue afresh after considering the submissions of the assessee documents on record and decisions of the Tribunal. Accordingly ground no. 2 raised in the appeal is allowed for statistical purpose.
Issues Involved:
1. Rejection of benchmarking done by the appellant. 2. Non-consideration of adjustment to operating margin. 3. Rejection of Genesys International Corporation Limited as a comparable company. 4. Initiation of penalty proceedings. 5. Levy of interest obligation. 6. Transfer pricing adjustment without giving benefit of +/- 5 percent. Detailed Analysis: 1. Rejection of Benchmarking Done by the Appellant: The appellant argued that the DCIT erred in not considering the benchmarking analysis undertaken by the appellant. The appellant had adopted the TNM method as the most appropriate method to benchmark the Arm’s Length Price (ALP) of transactions with its Associated Enterprises (AE). The appellant had selected six external comparables for this analysis. However, the TPO excluded Genesys International Corporation Ltd. from the list of comparables, citing functional differences. The DRP upheld the TPO's findings, leading to an upward adjustment to the ALP of Rs. 3,87,48,200. 2. Non-Consideration of Adjustment to Operating Margin: The appellant contended that the DCIT erred in rejecting the adjusted operating margin on account of underutilization of manpower and under absorption of overheads. The appellant argued that the TPO did not accept the adjustment made in the Profit Level Indicator (PLI) due to underutilization of employee costs and overheads. The DRP discussed the issue but did not provide specific findings. The Tribunal in the appellant's own case for the assessment year 2004-05 had remitted the matter back to the Assessing Officer to grant the benefit of capacity utilization adjustment. 3. Rejection of Genesys International Corporation Limited as a Comparable Company: The appellant argued that the TPO and DRP erred in rejecting Genesys International Corporation Ltd. as a comparable company. The appellant cited decisions from the Mumbai Bench of the Tribunal in similar cases where Genesys International Corporation Ltd. was accepted as a comparable for companies engaged in ITES services. The Tribunal noted that the Department cannot accept or reject comparables to suit its convenience and remitted the file back to the TPO to consider Genesys International Corporation Ltd. as one of the comparables. 4. Initiation of Penalty Proceedings: The appellant contended that the DCIT erred in proposing to initiate penalty proceedings under section 271(1)(c) of the Act without considering the facts of the case. The Tribunal dismissed this ground as premature. 5. Levy of Interest Obligation: The appellant argued that the DCIT erred in levying interest under section 234B of the Act due to unanticipated adjustments made by the TPO. The Tribunal found that charging of interest under section 234B is mandatory and consequential, dismissing this ground of appeal. 6. Transfer Pricing Adjustment Without Giving Benefit of +/- 5 Percent: The appellant raised an issue regarding transfer pricing adjustment without giving the benefit of +/- 5 percent. However, the appellant did not advance any submissions on this issue, and the Tribunal dismissed this ground in view of the newly inserted sub-section (2A) to section 92C of the Act. Conclusion: The Tribunal allowed the appeal partly, remitting the file back to the TPO to consider Genesys International Corporation Ltd. as a comparable and to the Assessing Officer to decide the issue of capacity utilization adjustment afresh. The grounds related to initiation of penalty proceedings and levy of interest were dismissed. The appeal was allowed in the aforesaid terms.
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