2018 (5) TMI 1381 - AT - Income Tax

TPA - Exclusion of foreign exchange fluctuation loss from the operating expenses - Held that - We find that the foreign exchange fluctuation loss is not abnormal only to the assessee. Such fluctuation would affect the margins of the comparable companies as well as long as the transactions are in the same currency. In a number of cases, we have already held that the foreign exchange fluctuation profit or loss is also part of the operating revenue. Tribunal had directed the AO to make necessary adjustments. The distinction of the currency in the international transaction of the assessee and the comparable companies and also the abnormal fluctuation in foreign currency in the case before us has not been brought out by the assessee. - decided against assessee. Comparables adopted or rejected by the TPO - Held that - Assessee is into providing software services primarily to its Associate Enterprises and is also an authorized distributor of Cordys Products in India., entered into international transactions of providing software development services, distribution of software products and reimbursement of costs by AE during the relevant financial year, thus companies functionally dissimilar with that of assessee need to be deselected from final list.

Issues Involved:
1. Rejection of Transfer Pricing Documentation
2. Rejection of Use of Multiple Year Data
3. Aggregation of Distribution of Software Products with Software Services
4. Use of Additional Filters in Comparative Analysis
5. Inclusion of Foreign Exchange Loss as an Operating Item
6. Selection of Comparables
7. Rejection of Comparables
8. Error in Margin Computation
9. Adjustment for Risk Differences
10. Non-grant of TDS Credit

Detailed Analysis:

1. Rejection of Transfer Pricing Documentation:
The assessee's transfer pricing documentation was rejected by the AO/TPO, who made an adjustment of ?8,03,03,098 to the international transactions related to software services provided to its AE. This was based on a fresh economic analysis conducted during the assessment proceedings.

2. Rejection of Use of Multiple Year Data:
The AO/TPO rejected the use of multiple year data, opting instead to use data only for the FY 2009-10.

3. Aggregation of Distribution of Software Products with Software Services:
The TPO aggregated the transactions related to software development services and sales and distribution services for determining the ALP, noting that the functional content of these businesses was not significantly different.

4. Use of Additional Filters in Comparative Analysis:
The TPO applied additional filters, rejecting comparable companies with diminishing revenues, persistent losses, different financial year-ends, and export sales less than 75% of total sales.

5. Inclusion of Foreign Exchange Loss as an Operating Item:
The assessee argued for the exclusion of foreign exchange fluctuation loss from operating expenses, citing it as abnormal and non-recurring. However, the Tribunal found that such fluctuations affect comparable companies as well and should be considered part of the operating revenue. Thus, the assessee's contention was rejected.

6. Selection of Comparables:
The Tribunal reviewed the selection of comparables by the TPO:
- CompU Learn Tech India Ltd: Excluded due to functional dissimilarity and lack of segmental data.
- E-Infochips Bangalore Ltd: Excluded for being functionally different and lacking segmental data.
- E-Zest Solutions Ltd: Retained as comparable, as its services were deemed similar to those of the assessee.
- Kals Information Systems Ltd: Excluded due to involvement in software products and ITES.
- Persistent Systems Ltd: Issue remanded to AO for de novo consideration as the objection was raised for the first time before the Tribunal.
- Tata Elxsi Ltd: Excluded due to functional dissimilarity and complex nature of business.

7. Rejection of Comparables:
The Tribunal directed the exclusion of certain companies from the list of comparables based on functional dissimilarity and lack of segmental data, aligning with previous Tribunal decisions.

8. Error in Margin Computation:
The Tribunal addressed errors in margin computation:
- Provision for Bad Debts: Directed to be included in computing margins.
- CAT Technologies Ltd: Issue remanded for re-evaluation of margin computation.
- Unallocable Costs for Kals Information Systems and Tata Elxsi Ltd: Issue remanded for re-evaluation.

9. Adjustment for Risk Differences:
The Tribunal did not specifically address this issue in the detailed analysis provided.

10. Non-grant of TDS Credit:
The issue of non-grant of TDS credit amounting to ?3,68,560 was referred to the TPO for verification and appropriate action.

Conclusion:
The Tribunal partly allowed the assessee's appeal, directing the AO/TPO to re-evaluate certain issues and recompute margins as per the Tribunal's guidance. The decision emphasized the need for functional similarity and accurate segmental data in the selection of comparables.

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