2016 (7) TMI 671 - AT - Income Tax

Transfer pricing adjustment - segmental P & L Account in relation to transaction with associated enterprises (AE) and Non-AE s - Held that - In the present case it is noticed that the assessee requested the TPO to consider the segmental P & L Account in relation to transaction with associated enterprises (AE) and Non-AE s for the revenue of associated cost for arriving at segmental P & L vide letter dated 08.01.2015. However, the TPO did not accept the request of the assessee since the segmental data relating to internal comparables were not audited. Now the assessee got the segmental profit and loss account audited by M/s. S.S. Kothari Mehta & Co. in pursuance of the provisions of Income-tax Act, 1961 and the provisions of Companies Act, 1956 for the year ended on 31st March, 2011 and furnished the copies of the same as an additional evidence. Thus to resolve the present controversy, the additional evidences furnished by the assessee are relevant and go to the root of the matter, so these deserves to be admitted. Accordingly, the additional evidences is furnished by the assessee are admitted under Rule 29 the Income-tax (Appellate Tribunal) Rules, 1963. However, these evidences furnished by the assessee first time before this bench of the Tribunal were not available to the authorities below. We, therefore, deem it appropriate to set aside the issue under consideration to the file of the TPO to be adjudicated afresh inaccordance with law, after providing due and reasonable opportunity of being heard to the assessee. We also direct the TPO to consider the additional evidences, furnished by the assessee while adjudicating the issues under consideration.

Issues Involved:
1. Adjustment of INR 1,39,12,291/- to the total income on account of arm's length price (ALP).
2. Computation of total income with respect to ALP.
3. Non-compliance with the directions of the Dispute Resolution Panel (DRP).
4. Rejection of segmental accounts for benchmarking international transactions.
5. Rejection of the economic analysis using Cost Plus Method (CPM).
6. Application of Transactional Net Margin Method (TNMM) instead of CPM.
7. Selection of comparable companies without conducting a detailed FAR analysis.
8. Selection of companies with different business/operating models for benchmarking.
9. Use of arbitrary filters for identifying comparable companies.
10. Use of single-year data for financial year 2010-11.
11. Failure to adjust for differences in capacity utilization.
12. Failure to adjust for differences in working capital.
13. Failure to adjust for varying risk profiles.
14. Initiation of penalty under section 271(1)(c).
15. Charging of interest under section 234.

Issue-wise Detailed Analysis:

1. Adjustment of INR 1,39,12,291/- to the total income on account of ALP:
The assessee contested the addition of INR 1,39,12,291/- made by the AO, TPO, and DRP to the total income on account of adjustment in the arm's length price. The TPO applied the TNMM method instead of the CPM method adopted by the assessee, leading to this adjustment.

2. Computation of total income with respect to ALP:
The AO computed the total income of the assessee at INR 1,39,12,291/- against the returned income of INR NIL, based on the upward adjustment of INR 1,39,12,291/- with respect to the ALP of the international transaction.

3. Non-compliance with the directions of the DRP:
The assessee argued that the TPO and AO did not comply with the directions of the DRP while passing the impugned order. However, this ground was not pressed during the hearing.

4. Rejection of segmental accounts for benchmarking international transactions:
The TPO rejected the segmental accounts prepared by the assessee for benchmarking the international transaction related to software consulting and support services, stating that no segmental profit and loss account was prepared concerning services provided to the AEs and non-AEs.

5. Rejection of the economic analysis using CPM:
The TPO rejected the economic analysis undertaken by the assessee using the CPM method, stating that the application of CPM was extremely difficult due to the lack of segmental profit and loss accounts and gross profit margin data from comparable entities in India.

6. Application of TNMM instead of CPM:
The TPO applied the TNMM as the most appropriate method for benchmarking the international transaction, instead of the CPM adopted by the assessee. The TPO justified this by stating that reliable GP Margin data could not be identified from the public domain, making TNMM more appropriate.

7. Selection of comparable companies without conducting a detailed FAR analysis:
The assessee argued that the TPO selected comparable companies on an ad-hoc basis without conducting a detailed FAR (Functions, Assets, and Risks) analysis. The TPO selected 19 comparables with an average OP/OC of 23.81%.

8. Selection of companies with different business/operating models for benchmarking:
The assessee contended that the TPO selected companies with different business/operating models as comparables, which was inappropriate for benchmarking the international transaction.

9. Use of arbitrary filters for identifying comparable companies:
The assessee argued that the TPO used arbitrary filters for identifying comparable companies, which led to an inappropriate selection of comparables.

10. Use of single-year data for financial year 2010-11:
The TPO used single-year data for the financial year 2010-11 of comparable companies, disregarding the assessee's claim for using multiple-year data for computing the ALP.

11. Failure to adjust for differences in capacity utilization:
The assessee contended that the TPO failed to make suitable adjustments for differences in capacity utilization, ignoring the fact that the assessee was in the initial years of operation.

12. Failure to adjust for differences in working capital:
The TPO did not make appropriate adjustments for differences in working capital employed by the assessee vis-a-vis the comparable companies.

13. Failure to adjust for varying risk profiles:
The TPO did not make appropriate adjustments for varying risk profiles of the assessee vis-a-vis the comparables, neglecting Indian transfer pricing regulations, international guidelines, and judicial precedence.

14. Initiation of penalty under section 271(1)(c):
The AO initiated penalty proceedings under section 271(1)(c) of the Act as a consequence of the addition made in the impugned order. This ground was not pressed during the hearing.

15. Charging of interest under section 234:
The AO charged interest under section 234 of the Act as a consequence of the addition made in the impugned order. This ground was not pressed during the hearing.

Conclusion:
The Tribunal admitted additional evidence provided by the assessee, which included audited segmental profit and loss accounts prepared by an independent Chartered Accountant. The Tribunal set aside the issue to the file of the TPO for fresh adjudication, considering the additional evidence. The appeal of the assessee was allowed for statistical purposes.

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