2018 (4) TMI 705 - AT - Income Tax

Claim of depreciation made for acquiring right to render BPO services to Cummins in USA. - whether acquisition of right to render BPO services was deductible expenditure under section 37(1) - Held that - In assessment year 2010-11 DRP held the assessee eligible to claim depreciation on the said consideration paid being intangible asset, covered by the ratio laid down by the Hon ble Supreme Court in CIT Vs. Smifs Securities Ltd. (2012 (8) TMI 713 - SUPREME COURT). Since the Assessing Officer in the year under consideration had also held the payment made by the assessee was at best being payment for goodwill and where similar claim has been allowed in the hands of assessee in assessment year 2010-11, we hold the assessee to be entitled to claim depreciation on the right to render BPO services being goodwill in the hands of assessee. Thus, we reverse the order of Assessing Officer in disallowing depreciation of ₹ 2.26 crores. Accordingly, we direct the Assessing Officer to allow the said claim of assessee. The grounds of appeal No.1 and 2 raised by the assessee are allowed. Ground raised by the assessee on without prejudice basis in allowing the said expenditure as deductible under section 37(1) of the Act is rejected. Transfer pricing adjustment - Held that - The assessee was offering skills and rule based services i.e. transaction processing, finance & accounting, HR processing, etc; technology based services e.g. Technical help desk solutions and knowledge based solutions such as Sarbanes Oxley solutions, data analytics, etc. The assessee was offering enterprise and extensive solutions in the core business area of knowledge based, skill based and technology based services, thus companies functionally dissimilar with that of assessee need to be deselected from final list.

Summary

Issues Involved:
1. Disallowance of depreciation on payment for acquiring "Right to Render BPO Services."
2. Determination of Arm's Length Price (ALP) for international transactions.
3. Granting deduction under section 10A of the Income Tax Act.
4. Selection and rejection of comparables in Transfer Pricing (TP) adjustments.

Issue-Wise Detailed Analysis:

1. Disallowance of Depreciation on Payment for Acquiring "Right to Render BPO Services":
The assessee claimed depreciation on the payment made to acquire the "Right to Render BPO Services," which was disallowed by the Assessing Officer (AO) and the Dispute Resolution Panel (DRP). The AO argued that the payment did not fit the definition of intangible assets under section 32(1)(ii) of the Income Tax Act. The AO considered the payment akin to goodwill, which at the time was not eligible for depreciation. However, the Supreme Court's decision in CIT Vs. Smifs Securities Ltd. later clarified that goodwill qualifies as an intangible asset eligible for depreciation. The ITAT Pune allowed the assessee's claim for depreciation, reversing the AO's disallowance.

2. Determination of Arm's Length Price (ALP) for International Transactions:
The AO, Transfer Pricing Officer (TPO), and DRP determined the ALP for the assessee's international transactions, resulting in a significant TP adjustment. The assessee contested the selection of certain comparables, arguing that they were not functionally similar. The ITAT Pune excluded several comparables such as Coral Hub Ltd., Crossdomain Solutions Ltd., Genesys International Corporation Ltd., Triton Corporation Ltd., and Maple eSolutions Ltd. from the final set of comparables due to functional dissimilarity or credibility issues. The ITAT remitted the issue of persistent loss-making comparables back to the TPO for verification.

3. Granting Deduction Under Section 10A of the Income Tax Act:
The assessee raised an additional ground for deduction under section 10A on the increased income due to disallowance of depreciation. The ITAT noted that this issue became academic since the depreciation claim was allowed, rendering the additional ground moot.

4. Selection and Rejection of Comparables in Transfer Pricing Adjustments:
The ITAT Pune addressed the inclusion and exclusion of various comparables in the TP study:
- Coral Hub Ltd.: Excluded as it was engaged in e-publishing, not comparable to ITES.
- Crossdomain Solutions Ltd.: Excluded as it provided high-end KPO services.
- Genesys International Corporation Ltd.: Excluded due to engagement in non-comparable activities.
- Triton Corporation Ltd. and Maple eSolutions Ltd.: Excluded due to being fraudulent or under indictment.
- Sparash BPO Ltd.: Remitted to the TPO for verification of functional comparability and turnover filter.

The ITAT directed the TPO to re-compute the TP adjustments based on the revised set of comparables.

Conclusion:
The ITAT Pune allowed the assessee's appeal regarding depreciation on the payment for acquiring the right to render BPO services and directed the exclusion of certain comparables from the TP study. The issues of granting deduction under section 10A and the inclusion of specific comparables were remitted back to the TPO for further verification and re-computation. The appeals were partly allowed, providing relief to the assessee.