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2017 (3) TMI 1028 - AT - Income TaxTPA - selection of comparable - Held that - Profile of assessee company and the comparables nned to be taken care of while selection of comparable. Operating revenue filter for excluding the comparables from the list of comparables by adopting a benchmark of 75% income need to be applied. Deduction u/s. 10A has to be allowed without setting off the brought forward losses and unabsorbed depreciation of non-STP unit. See Commissioner of Income-tax Versus Yokogawa India Ltd. 2011 (8) TMI 845 - Karnataka High Court
Issues Involved:
1. Validity of the assessment order. 2. Transfer Pricing issues. 3. Deduction under section 10B of the Income Tax Act. 4. Charging of interest under section 234C of the Income Tax Act. Detailed Analysis: 1. Validity of the Assessment Order: The appellant contended that the order of the Assessing Officer (AO) was prejudicial and should be quashed. However, the judgment does not provide a detailed analysis or ruling on this specific issue, implying that the primary focus was on the Transfer Pricing and section 10B issues. 2. Transfer Pricing Issues: The appellant challenged the AO and Dispute Resolution Panel (DRP) for not following the ITAT ruling in the appellant's own case for AY 2007-08. The main contentions were: 2.1 Rejection of Transfer Pricing Documentation: The AO and DRP upheld the Transfer Pricing Officer’s (TPO) rejection of the appellant's TP documentation, which was contested by the appellant. 2.2 Adjustment to Transfer Price: The TPO made an adjustment of ?37,922,569 to the transfer price for contract research and development services, which was upheld by the AO and DRP. The appellant argued that the international transactions did not violate the arm's length principle. 2.3 Comparability Analysis: The appellant objected to the TPO’s comparability analysis, particularly the inclusion of certain companies that were not functionally comparable. The Tribunal examined the inclusion of 10 comparables by the TPO, out of which the appellant objected to four: - Aurigene Discovery Technologies Ltd., Jubilant Chemys, and Vimta Labs: No objections were raised by the appellant. - Clinigene International and Tata Elxsi Ltd.: Already excluded by DRP. - Technicom Chemie (India) Ltd.: The appellant’s objection was not strongly contested, and thus it was included. 2.4 Specific Comparables: - Celestial Biolabs Ltd.: Excluded as it was functionally different, involved in software development services, and trading activities. - IDC India Ltd.: Excluded as it was engaged in market research and consulting services, not comparable to the appellant’s business. - Oil Field Instrumentations (India) Ltd.: Excluded as it provided mud logging services, not comparable to the appellant’s business. - TCG Lifesciences Ltd.: Included despite appellant’s objection that its income from R&D services was 74.5%, slightly below the 75% benchmark set by TPO. The Tribunal ruled that a minor deviation (0.1%) did not warrant exclusion. 2.5 Working Capital Adjustment: The Tribunal directed the TPO/AO to examine and allow the working capital adjustment if the appellant was entitled to it. 3. Deduction under Section 10B of the Income Tax Act: The appellant argued that the AO/DRP erred in not allowing the deduction under section 10B before setting off brought forward losses and unabsorbed depreciation. The Tribunal referenced the jurisdictional High Court decision in CIT v. Yokogawa India Ltd., which held that deduction under section 10A (similar to section 10B) should be allowed without setting off brought forward losses and unabsorbed depreciation. The Tribunal directed the AO to follow this precedent and allow the deduction accordingly. 4. Charging of Interest under Section 234C: The appellant contended that the AO charged interest under section 234C incorrectly. However, the judgment does not provide a detailed analysis or ruling on this specific issue, implying that it was not a major point of contention in the appeal. Conclusion: The appeal was allowed for statistical purposes, with specific directions to the AO/TPO to re-compute the ALP by excluding certain comparables and to allow the deduction under section 10B before setting off brought forward losses and unabsorbed depreciation.
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