2017 (9) TMI 569 - AT - Income Tax

TPA u/s 92CA - software development services - selection of appropriate comparable - selection criteria - Held - Assessee company is engaged in the business of providing software development services to its AE thus companies functionally dissimilar with that of assessee need to be deselected from final list of comparables. We deem it fit and proper to remand the issue to the file of the TPO for further verification for few comparables and for rest order for exclusion from list of comparable as found not functionally comparable to assessee - Appeal of assessee is partly allowed.

Issues Involved:
1. Addition to the provision of software development services.
2. Rejection of Transfer Pricing (TP) documentation and related sub-issues.
3. Addition to the interest paid on external commercial borrowings.
4. Levy of interest under sections 234B and 234C of the Income Tax Act.

Detailed Analysis:

1. Addition to the Provision of Software Development Services:
The assessee challenged the assessment order for the A.Y 2010-11, specifically the addition of ?4,80,48,856 to the provision of software development services. The Tribunal did not find it necessary to adjudicate on this general ground.

2. Rejection of Transfer Pricing (TP) Documentation:
The assessee raised multiple sub-issues under the rejection of TP documentation:

i. Rejection of TP Documentation:
The TPO rejected the TP documentation maintained by the assessee and conducted an independent analysis, aggregating all transactions under the Transactional Net Margin Method (TNMM).

ii. Rejection of Search Process:
The TPO rejected the search process followed by the assessee and carried out a fresh comparability analysis.

iii. Use of Data at Assessment Time:
The TPO used data available at the time of assessment proceedings instead of those available when preparing the TP documentation.

iv. Rejection of Multiple Year Data:
The TPO rejected the use of multiple-year data and used data from the financial year 2009-10 alone.

v. Inclusion of Different Companies in Comparability Analysis:
The assessee contested the inclusion of companies that are functionally different. The Tribunal directed the exclusion of Persistent Systems & Solutions Ltd, following precedents that found it incomparable due to its engagement in product development and software services.

vi. Exclusion of Similar Companies:
The Tribunal remanded the issue of E-Infochips Bangalore Ltd to the TPO for verification of its engagement in IT-enabled services and the availability of segmental details.

vii. Selection of Companies with Super Normal Profits:
The Tribunal confirmed the inclusion of E-Zest Solutions Ltd, rejecting the assessee's claim that it was a product development company, based on its provision of product development services.

viii. Risk Adjustment:
This specific sub-issue was not elaborated upon in the judgment.

3. Addition to the Interest Paid on External Commercial Borrowings:
The TPO suggested an adjustment for the difference in interest rates on the ECB loan, as the assessee paid interest at 4.59%, while the maximum allowable rate was 2.85% based on LIBOR. The Tribunal remanded this issue back to the DRP for a decision on merits, as the DRP had not adjudicated on the assessee's specific objection.

4. Levy of Interest under Sections 234B and 234C:
The Tribunal noted that the levy of interest under sections 234B and 234C is consequential in nature. The AO was directed to give consequential effect based on the Tribunal's order on other grounds.

Conclusion:
The assessee's appeal was partly allowed. The Tribunal directed the exclusion of Persistent Systems & Solutions Ltd from the comparables list, remanded the issue of E-Infochips Bangalore Ltd to the TPO for verification, confirmed the inclusion of E-Zest Solutions Ltd, and remanded the issue of interest on ECB loans to the DRP for adjudication. The levy of interest under sections 234B and 234C was to be consequentially adjusted.

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