2018 (6) TMI 541 - AT - Income Tax

Transfer pricing addition - comparable selection criteria - comparability of Government companies - Held that - Undisputedly, Government companies are ordinarily established by the Government in order to accelerate its public welfare policy and growth of the core sector and to generate employment and it is also not in dispute that invariably, the Government companies get contracts by getting preferential treatment from the Government as in the case of NBCC, a public sector undertaking, which is getting most of its construction contract from the Government of India. In view of the matter, we are of the considered view that the TPO to reexamine the comparability of aforesaid Government companies vis- -vis assessee for benchmarking the international transaction by analyzing the factors if these companies are getting grants/subsidy, preferential treatment in getting contracts from the Government working in controlled environment, impacting their profit.

Summary

Issues Involved:
Assessment of income, Transfer Pricing adjustments, Interest imputation, Penalty proceedings, Levy of interest, Benchmarking comparables, Treatment of Government companies as comparables.

Assessment of Income:
The Appellant challenged the assessment of its income by the AO, arguing that the income was incorrectly assessed higher than the declared amount. The Appellant contended that there was no change in its business activities from the previous year and that the AO erred in characterizing it as a technical consultancy service provider. The Appellant raised various grounds regarding the rejection of economic analysis, selection of comparables, inclusion of reimbursements in cost base, and computation of working capital adjustment.

Transfer Pricing Adjustments:
The Transfer Pricing Officer (TPO) changed the characterization of the Appellant and selected comparables with higher operating profit/total cost margins. The TPO included reimbursement expenses in the income and cost, leading to a reduction in the mark-up earned by the Appellant. The TPO made significant adjustments to the transfer pricing, which the Appellant contested.

Interest Imputation:
The AO imputed interest on outstanding receivables, disregarding working capital adjustments allowed by the Dispute Resolution Panel (DRP). The AO's method of calculating interest was challenged by the Appellant, highlighting discrepancies in the computation and the rate applied.

Penalty Proceedings and Levy of Interest:
The AO initiated penalty proceedings under section 271(1)(C) and proposed to levy interest under sections 234B, 234C, and 234D of the Income-tax Act. The Appellant contested these actions as erroneous.

Benchmarking Comparables:
The Appellant challenged the selection of comparables by the TPO, specifically disputing the inclusion of Government companies as valid comparables. The Appellant argued that Government companies should not be considered comparable due to potential grants, subsidies, or preferential treatment impacting their profits.

Treatment of Government Companies as Comparables:
The Tribunal directed the TPO to reexamine the comparability of Government companies with the Appellant for benchmarking international transactions. The TPO was instructed to analyze if these companies received grants, subsidies, or preferential treatment affecting their profits, considering relevant legal precedents.

The Tribunal allowed the appeal for statistical purposes, setting aside the issues for reconsideration by the AO/TPO in light of the observations made, emphasizing the need to provide the Appellant with an opportunity to be heard.