2017 (5) TMI 971 - AT - Income Tax

TPA - selection of comparable - Held that - As assessee is engaged in the business of providing Engineering consultancy services in the field of Chemicals, Petrochemicals, Fertilisers, Cement, Pharmaceuticals and allied industries, the companies with dis-similar functional activity need to be deselected from final list of comparable. The assessee followed TNMM method to benchmark the international transactions entered with its AEs. Government Companies cannot be taken as Comparable. There is merit in the contentions of the Ld A.R that the turnover filter of 1/4th to 4 times adopted by TPO was arbitrary in nature. Accordingly we direct the AO/TPO to adopt turnover filter at 1/10th to 10 times of turnover of the assessee and accordingly re-examine the comparables. Company with Related Party Transactions was more than 25% need to be excluded

Issues:
Challenge to order by assessing officer in relation to Engineering services rendered by the assessee to its Associated Enterprises (AEs.

Detailed Analysis:
1. The assessee challenged the order passed by the assessing officer regarding the Engineering services provided to its AEs, following directions from the Dispute Resolution Panel (DRP) under section 144C(5) for the assessment year 2008-09.
2. The assessee, engaged in providing Engineering consultancy services in various industries, carried out international transactions with AEs in different countries, focusing on the Engineering Services provided.
3. The assessee used the Transactional Net Margin Method (TNMM) to benchmark its international transactions, comparing net margins from contracts with AEs and non-AEs.
4. The assessee compared its margin under TNMM with external comparables, showing that the difference was within the tolerance limit of +/- 5%.
5. The assessee identified ten comparable companies using specific keywords and revised the mean average margin based on single-year data.
6. The TPO did not accept the internal TNMM analysis and moved to examine external TNMM.
7. The TPO applied a turnover filter to examine comparables selected by the assessee, identifying companies failing the turnover test.
8. The TPO rejected certain comparable companies without providing reasons.
9. The TPO accepted specific comparable companies and proposed an addition based on operating profit margins.
10. The assessing officer passed the draft assessment order in line with the TPO's decision, leading to objections raised by the assessee before the DRP.
11. The first contention by the assessee was that Government Companies should not be considered comparable, citing relevant case law.
12. The judgment held that Government Companies cannot be taken as comparables, consistent with previous decisions.
13. The assessee argued for the inclusion of certain comparables rejected by the TPO based on turnover filters and related party transactions.
14. The turnover filter applied by the TPO was deemed arbitrary, and the judgment directed a re-examination of comparables with a revised turnover filter.
15. Specific contentions were made regarding the exclusion of certain transactions and related party elements in determining comparability.
16. The rejection of a comparable company was challenged based on its acceptance in previous and subsequent years, leading to a direction for reconsideration.
17. The issue was sent back to the assessing officer for fresh examination and finalization of comparables as per the discussions held.
18. The appeal of the assessee was treated as allowed, with the order pronounced on a specific date.

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