2019 (1) TMI 852 - AT - Income Tax

TPA - Comparable selection - Exclusion of Infosys Ltd. - Held that - Exclusion of Infosys Ltd. on the basis of functional comparability which is not decided by the Tribunal. Be that as it may but since this is not a finding of the Tribunal in the impugned Tribunal order that Infosys Ltd. should be included in the list of comparables, there cannot be any grievance of the assessee in respect of non-deciding of this issue i.e. regarding exclusion of Infosys Ltd. For the assessee, the decision of CIT (A) still stands that Infosys Ltd. stands excluded from the list of comparables. The revenue has not filed any M. P. for decision on that aspect i.e. exclusion of Infosys Ltd. and hence, in our considered opinion, the present M.P. of assessee is academic and therefore, no decision on this is called for.

Summary

Issues:
1. Rectification of apparent mistakes in the impugned Tribunal order regarding exclusion of comparable companies, specifically Infosys Ltd.
2. Discrepancy in the list of comparables noted in the impugned Tribunal order and the companies actually included or excluded.
3. Argument for exclusion of Infosys Ltd. based on functional dissimilarity.

Issue 1: Rectification of Apparent Mistakes
The assessee filed a Miscellaneous Petition (M.P.) pointing out an apparent mistake in the Tribunal order where Infosys Ltd. was neither excluded nor commented upon despite being argued for exclusion due to functional dissimilarity. The Tribunal noted 7 comparables in the order but missed mentioning Infosys Ltd. The assessee requested the Tribunal to rectify this mistake either by recalling the order or deciding on the exclusion of Infosys Ltd. The Revenue argued that there was no mistake in the order.

Issue 2: Discrepancy in List of Comparables
The Tribunal noted 12 comparable companies in the order, including those with Related Party Transactions to be excluded. However, the list of 12 comparables did not match the 7 comparables mentioned in the order. Notably, two comparables mentioned in the order were not included in the final list of 12 comparables. The Tribunal's order directed the inclusion of four companies and the exclusion of three others, leading to discrepancies in the list of comparables.

Issue 3: Argument for Exclusion of Infosys Ltd.
The assessee argued for the exclusion of Infosys Ltd. based on functional dissimilarity, presenting reasons such as diversified operations, presence of brands and intangibles, product development, and substantial investment in Research & Development activities. The assessee relied on specific judicial rulings to support the claim that Infosys Ltd. was not functionally comparable to their business operation.

In the final decision, the Tribunal dismissed the M.P. filed by the assessee, stating that since the Tribunal did not find Infosys Ltd. should be included in the list of comparables, there was no grievance for the assessee regarding the non-decision on the exclusion of Infosys Ltd. The decision of the CIT(A) to exclude Infosys Ltd. from the comparables list remained valid, and as the Revenue did not file any M.P. on this aspect, the Tribunal deemed the assessee's M.P. as academic and not requiring a decision.

This detailed analysis of the judgment highlights the issues raised by the parties, the discrepancies in the Tribunal's order, and the ultimate decision regarding the exclusion of Infosys Ltd. based on functional dissimilarity.