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2017 (8) TMI 340 - AT - Income TaxTPA - valid comparable - exclusion by DRP - Held that - the accounting period of the comparable company should be the same with that of the assessee-company. - the view adopted by the hon ble High Court in the case of PTC India Pvt. Ltd. (2016 (9) TMI 1282 - BOMBAY HIGH COURT) is absolutely perfect and is in accordance with the rules prescribed in this regard. We do not find any need or justification or any kind of deviation in this regard. The accounting period of Pfizer Ltd. is ending on 30th November. Therefore, there should be availability of data from December 1, 2008 to March 31, 2009 and also from December 1, 2007 to March 31, 2008. The adjustment is required to be made in such a manner that the last quarter s transactions would be added and the first quarter s transaction would be reduced. Further, the data should be available on the segmental basis and not as a whole. In our considered view, this kind of exercise is neither feasible nor desirable. It will add to lot of confusions in an area which is otherwise also highly subjective and vague. Celestial Labs Ltd. correctly directed for its exclusion on the ground that the said company was engaged in providing host of information technology related services Disregarding the claim of the assessee with regard to the software licence fee claimed as revenue expenditure - Held that - It is noted by us that though objection was raised by the assessee in this regard, however, the Dispute Resolution Panel has not adjudicated this issue inadvertently. Therefore, we send grounds 3 and 4 back to the file of the Dispute Resolution Panel for its adjudication afresh. It was submitted by the learned counsel that identical issue has already been decided by the Tribunal in the assessment year 2008-09. The assessee is permitted to raise all the legal and factual issues before the Dispute Resolution Panel and may also submit the order of the Tribunal before the Dispute Resolution Panel for its consideration. The Dispute Resolution Panel shall decide this issue afresh
Issues Involved:
1. Exclusion of Pfizer Ltd. as a comparable. 2. Exclusion of Celestial Labs Ltd. as a comparable. 3. Inclusion of Celestial Labs Ltd. in the final set of comparables. 4. Treatment of software license fees as revenue expenditure. Detailed Analysis: 1. Exclusion of Pfizer Ltd. as a Comparable: The Revenue challenged the exclusion of Pfizer Ltd. as a comparable by the Dispute Resolution Panel (DRP). The DRP excluded Pfizer Ltd. due to its related party transactions exceeding 90% and its different accounting period. The Revenue argued that the same comparable was accepted in previous years and should not be excluded based on the related party transactions exceeding 25%. They also contended that a different accounting period should not be a ground for exclusion if financial data for all quarters is available. The assessee supported the DRP's decision, highlighting that the related party transactions were indeed more than 90% and cited the judgment of the Bombay High Court in CIT v. PTC Software (I) P. Ltd., which mandates that the accounting period of the comparable company should align with that of the assessee-company. The Tribunal upheld the DRP's decision, emphasizing that the related party transactions and different accounting periods justified the exclusion of Pfizer Ltd. 2. Exclusion of Celestial Labs Ltd. as a Comparable: The Revenue contested the exclusion of Celestial Labs Ltd. by the DRP, arguing that the company was comparable to the assessee. The DRP excluded Celestial Labs Ltd. based on its involvement in various information technology-related services and trading activities, which were not comparable to the assessee's functional profile. The Tribunal referred to its previous rulings for the assessment years 2007-08 and 2008-09, where Celestial Labs Ltd. was excluded for similar reasons. The Tribunal noted that the company's primary business segments included software development and services, and no contradictory evidence was provided by the Revenue. Therefore, the Tribunal upheld the DRP's decision to exclude Celestial Labs Ltd. 3. Inclusion of Celestial Labs Ltd. in the Final Set of Comparables: The assessee's appeal requested the Tribunal to direct the Assessing Officer (AO) to follow the DRP's directions fully, particularly regarding the exclusion of Celestial Labs Ltd. The Tribunal acknowledged that the AO had not followed the DRP's directions completely and directed the AO to strictly adhere to the DRP's instructions. 4. Treatment of Software License Fees as Revenue Expenditure: The assessee was aggrieved by the AO's decision to capitalize software license fees as opposed to treating them as revenue expenditure, resulting in an addition to the total income. The DRP had inadvertently omitted to adjudicate this issue. Both parties agreed that the issue should be remanded back to the DRP for proper adjudication. The Tribunal noted that the issue had been previously decided by the Tribunal for the assessment year 2008-09 and allowed the assessee to present all legal and factual arguments before the DRP. Consequently, the Tribunal remanded the issue back to the DRP for fresh adjudication. Conclusion: The appeal filed by the Revenue was dismissed, and the appeal filed by the assessee was allowed for statistical purposes. The Tribunal directed the AO to follow the DRP's directions fully and remanded the issue of software license fees back to the DRP for proper adjudication.
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