2018 (1) TMI 388 - AT - Income Tax

TPA - international transaction of the assessee pertaining to the provisions of EDS does not satisfy the arm s length principle - comparable selection criteria - Held that - Assessee is engaged in the business of providing engineering services generating engineering drawings and providing other IT enabled services together referred to as engineering related service for offshore facilities. The primary business of SHI Korea encompasses shipbuilding offshore floaters digital devices for ships & construction and engineering services thus companies functionally dissimilar with that of assessee need to be deselected from final list.

Summary

Issues Involved:
1. Validity of the assessment order.
2. Characterization of engineering design services (EDS) as information technology enabled services (ITeS).
3. Enhancement of income based on the arm's length principle.
4. Rejection and selection of comparable companies for Transfer Pricing (TP) analysis.
5. Denial of working capital and risk adjustments.
6. Initiation of penalty proceedings under section 271(l)(c) of the Income Tax Act.
7. Computation of interest under sections 234A, 234B, and 234C of the Income Tax Act.

Detailed Analysis:

1. Validity of the Assessment Order:
The assessee contended that the assessment order passed by the Assessing Officer (AO) was bad in law. However, this issue was not elaborated upon in the judgment, and the primary focus was on the transfer pricing adjustments and related issues.

2. Characterization of EDS as ITeS:
The assessee argued that the Transfer Pricing Officer (TPO) and the Dispute Resolution Panel (DRP) erred in characterizing the provision of engineering design services (EDS) as information technology enabled services (ITeS). The Tribunal noted that the TPO himself classified the assessee’s services as IT enabled services, and this classification was not objected to by the assessee in the appeal. Therefore, the Tribunal confined its consideration to the comparability of companies by treating the assessee as rendering IT enabled services.

3. Enhancement of Income Based on the Arm's Length Principle:
The primary grievance of the assessee was the enhancement of income by ?2,29,83,602 by holding that the international transaction of the assessee pertaining to the provision of EDS did not satisfy the arm’s length principle. The Tribunal noted that the facts for the year under consideration were similar to the facts involved in the previous assessment year (2011-12), where the identical issue was set aside to the AO/TPO for fresh determination of the arm's length price (ALP) with specific directions.

4. Rejection and Selection of Comparable Companies for TP Analysis:
The TPO rejected three comparables selected by the assessee and included additional comparables, resulting in an adjustment of ?4,32,63,688, later revised to ?2,29,83,602 by the DRP. The Tribunal reviewed the comparability of four specific companies (Accentia Technologies Ltd., Eclerx Services Ltd., TCS E-Serve Ltd., and TCS E-Serve International Ltd.) and found them functionally dissimilar to the assessee. The Tribunal directed the exclusion of these companies from the list of comparables, following the precedent set in the previous assessment year.

5. Denial of Working Capital and Risk Adjustments:
The TPO denied the necessity of appropriate working capital and risk adjustments to the margins of the comparables. The Tribunal did not specifically address this issue in detail but remitted the matter to the AO/TPO for fresh determination of the ALP, implying that these aspects should be considered in the fresh proceedings.

6. Initiation of Penalty Proceedings Under Section 271(l)(c):
The assessee contended that the DRP erred in proposing to initiate penalty proceedings for concealment of particulars of income and furnishing inaccurate particulars. This issue was not specifically addressed in the judgment, as the primary focus was on the transfer pricing adjustments.

7. Computation of Interest Under Sections 234A, 234B, and 234C:
The assessee argued that the computation of interest under sections 234A, 234B, and 234C was done mechanically and without satisfactory reasons. The Tribunal did not specifically address this issue, as the primary focus was on the transfer pricing adjustments.

Conclusion:
The Tribunal set aside the impugned order on the issue of transfer pricing adjustment and remitted the matter to the AO/TPO for fresh determination of the ALP of the international transaction of "provision of engineering, design, and related services" in accordance with the directions given for the preceding assessment year (2011-12). The appeal of the assessee was allowed for statistical purposes.