2018 (8) TMI 712 - AT - Income Tax

Transfer pricing - selection of comparable - determination of arm s length price - The AO referred the matter to the Transfer Pricing Officer (TPO) to determine the arm s length price of the international transactions u/s 92CA(3) of the Act. - The TPO also noticed that the arm s length price of the international transactions representing IT enabled services provided to the AEs was determined by the assessee by applying transactional net margin method (TNMM) and the operating profit to total cost ratio (OP/OC) was taken as the profit level indicator (PLI) in the TNMM analysis. He also noticed that the PLI of the company was arrived at 17.36% on cost whereas the average PLI of the comparables was arrived at 14.13% as per the analysis in the TP documents and that the PLI of the comparable companies had been worked out by adopting weighted averages for the current year and the immediately preceding periods. Held that - Since, the facts in assessee s case are similar to the facts involved in the case of 2016 (9) TMI 1392 - ITAT DELHI . So, respectfully following the said order, we direct the AO to exclude the aforesaid comparable while working out the arm s length price. Regarding exclusion of certain comparable, decision of DRP sustained. - Decided in favor of assessee and revenue partly.

Issues Involved:
1. Validity of the AO's order.
2. Jurisdictional error in reference to the TPO.
3. Transfer Pricing adjustments and selection of comparables.
4. Use of multiple year data vs. current year data.
5. Computation errors in margins of comparables.
6. Initiation of penalty proceedings u/s 271(1)(c).
7. Charging of interest u/s 234B and 234D.

Detailed Analysis:

1. Validity of the AO's Order:
The assessee contended that the AO's order was "bad in law and void ab-initio." However, this ground was deemed general in nature and did not require specific comments from the Tribunal.

2. Jurisdictional Error in Reference to the TPO:
The assessee argued that the AO did not record any reasons in the draft assessment order for referring the matter to the TPO, which is a jurisdictional error. This ground was not pressed by the assessee and thus did not require further comments.

3. Transfer Pricing Adjustments and Selection of Comparables:
The primary grievance of the assessee was the Transfer Pricing adjustment amounting to ?99,14,264/- due to the rejection of comparables selected by the assessee and the introduction of new comparables by the TPO. The TPO selected 10 comparables with an average margin of 31.73% and proposed an adjustment of ?1,15,16,983/-. The DRP accepted the working capital adjustment but upheld the TPO's selection of comparables. The Tribunal directed the exclusion of certain comparables (TCSE-Serve International Ltd., TCS E-Serve Ltd., Infosys BPO Ltd., Accentia Technologies Ltd., and e4e Healthcare Business Services Ltd.) based on functional dissimilarity and lack of segmental information, following precedents from similar cases.

4. Use of Multiple Year Data vs. Current Year Data:
The assessee argued against the use of current year data for comparability, favoring multiple year data instead. This ground was not pressed and thus did not require further comments.

5. Computation Errors in Margins of Comparables:
The assessee pointed out computational errors in the margins of some comparables (Cosmic Global Ltd. and e4e Healthcare Services Pvt. Ltd.). The DRP corrected these errors and adjusted the arm's length price accordingly.

6. Initiation of Penalty Proceedings u/s 271(1)(c):
The assessee contended that the AO initiated penalty proceedings mechanically without adequate satisfaction. This ground was considered premature and did not require further comments.

7. Charging of Interest u/s 234B and 234D:
The Tribunal noted that the charging and computing of interest u/s 234B and 234D is consequential in nature and ordered accordingly.

Departmental Appeal for AY 2011-12:
The department's appeal contested the exclusion of five comparables by the DRP. The Tribunal upheld the exclusion of Infosys BPO Ltd. and TCS E-Serve Ltd., following its earlier decision. For the remaining three comparables (Acropetal Technologies Ltd., e-Clerx Services Ltd., ICRA Techno Analytics Ltd.), the Tribunal found functional dissimilarities and upheld their exclusion based on precedents and the absence of segmental data.

Cross Objection by the Assessee:
The Cross Objection filed by the assessee was considered academic in nature and dismissed, as the departmental appeal was partly allowed for statistical purposes.

Conclusion:
The appeal of the assessee for AY 2010-11 was allowed, the departmental appeal for AY 2011-12 was partly allowed for statistical purposes, and the Cross Objection filed by the assessee was dismissed.

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