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2017 (4) TMI 762 - AT - Income TaxTPA - selection of comparable - criteria - Held that - Product development company cannot be compared with that of software development company. Companies dissimilar or functionally different from the assessee software development company need to be rejected from final list of comparable. Turnover is not a relevant criteria for the purpose of deciding the comparability. From a bare perusal of rule 10B(2) of the IT Rules, it is clear that the rule does not specify that turnover is not one of the factors for deciding the comparability. Computation of deduction u/s 10A - Held that - CIT(A) directed the AO to recomputed the deduction allowable u/s 10A of the Act after reducing the telecommunication charges and exchange fluctuation loss from total turnover also.
Issues Involved:
1. Validity of reference to the Transfer Pricing Officer (TPO). 2. Rejection of the assessee's Transfer Pricing (TP) study and the adoption of Transactional Net Margin Method (TNMM) by the TPO. 3. Selection and exclusion of comparable companies for determining Arm’s Length Price (ALP). 4. Computation of deduction under Section 10A of the Income Tax Act. 5. Cross objections by the assessee regarding the TP analysis and selection of comparables. Detailed Analysis: 1. Validity of Reference to the TPO: The assessee contended that the reference made by the Assessing Officer (AO) to the TPO was invalid. However, the Commissioner of Income Tax (Appeals) [CIT(A)] upheld the validity of the reference, confirming that the AO was justified in referring the matter to the TPO for benchmarking international transactions. 2. Rejection of Assessee's TP Study and Adoption of TNMM: The assessee used the Cost Plus Method (CPM) for its TP study, which was rejected by the TPO. The TPO adopted the TNMM as the most appropriate method, using operating profit by operating cost as the Profit Level Indicator (PLI). The TPO identified a different set of comparables and applied specific filters to determine the ALP, leading to a TP adjustment of ?1,79,31,851/-. 3. Selection and Exclusion of Comparable Companies: The CIT(A) excluded several companies from the list of comparables on various grounds: - Bodhtree Consulting Ltd: Excluded due to functional differences. - Exensys Software Solutions Ltd: Excluded due to abnormal profits and amalgamation with Holool India Ltd. - Thirdware Solutions Ltd: Excluded due to turnover exceeding ?200 crores. - iGate Global Solutions, Flextronics Software Systems Ltd, L&T Infotech Ltd, Satyam Computer Services Ltd, Infosys Ltd: Excluded due to turnover exceeding ?200 crores. The Tribunal upheld the exclusion of Exensys Software Solutions Ltd. and Thirdware Solutions Ltd. based on functionality and abnormal profits. However, it reversed the exclusion of iGate Solutions and L&T Infotech, stating that turnover is not a relevant criterion for comparability. Satyam Computers was excluded due to unreliable financial data. Infosys Ltd. was excluded due to high brand value, and Flextronics was excluded due to substantial R&D expenditure. Tata Elxsi was excluded for its diverse activities dissimilar to the assessee's business. 4. Computation of Deduction under Section 10A: The CIT(A) directed the AO to recompute the deduction allowable under Section 10A by reducing telecommunication charges and exchange fluctuation loss from both export turnover and total turnover. This direction was based on the Karnataka High Court's decision in Tata Elxi Ltd., which mandates uniformity in the ingredients of both the numerator and the denominator of the formula to avoid anomalies. 5. Cross Objections by the Assessee: The assessee raised several cross objections, including the rejection of its TP analysis, selection of comparables, and the method adopted by the TPO. However, the Tribunal dismissed these objections, stating that the issues had already been addressed in the revenue's appeal. Conclusion: The Tribunal partly allowed the revenue's appeal for statistical purposes and dismissed the cross objections filed by the assessee. The Tribunal upheld the CIT(A)'s directions on the exclusion of certain comparables and the computation of deduction under Section 10A, while reversing the exclusion of some comparables based on turnover criteria. The Tribunal emphasized the need for functional comparability and consistency in the application of TP methods and filters.
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