2019 (5) TMI 838 - AT - Income Tax

TP adjustment - comparable selection - TNMM as the Most Appropriate Method (MAM) selected - HELD THAT - Mitco has incurred expenses on providing vocational training and IT training, which changes its profile, thus is not a suitable comparable vis- -vis the taxpayer, hence ordered to be excluded. IBI Chematur inter alia fails 75% service revenue filter applied by the taxpayer and also accepted by the TPO; that it has various segments but no segmental financials are available; that IBI Chematur is not merely providing engineering services as its only business is of high end engineering services with the use of specific technologies and huge research and development expenditure along with R D centre. As relying on BECHTEL INDIA PVT. LTD. VERSUS DCIT, CIRCLE 4 (2) , NEW DELHI. 2015 (12) TMI 1560 - ITAT DELHI this company is to be excluded on ground of non-availability of financial segmental and substantial expenditure on R D activities Mahindra Consulting Engineers Limited - As following the decision rendered by the coordinate Bench of the Tribunal in BG Exploration and Production India Ltd. 2017 (4) TMI 1145 - ITAT DELHI we are of the considered view that the TPO has rightly retained the Mahindra as a comparable after examining the contentions raised by the assessee. However, we are of the considered view that in view of the settled principle of law, the assessee is entitled for benefit of working capital adjustment in order to benchmark its international transaction. Disallowance of misc. expenses like Diwali gifts and presents given - HELD THAT - When undisputedly taxpayer has incurred these expenses allegedly on gifts and presents by way of cash, the same cannot be attributed to Diwali gifts and presents etc. which is also against the provisions contained u/s 40A(3). So, we hereby confirm the addition made by the AO and consequently, corporate grounds are decided against the taxpayer.

Summary

Issues Involved:
1. Validity of the order passed by the Assessing Officer (AO) under Section 143(3)/144C of the Income Tax Act, 1961.
2. Whether the final assessment order was barred by limitation.
3. Assessment of income at ?9,07,33,200 against the returned loss of ?6,95,65,715.
4. Addition of ?2,09,91,628 on account of difference in arm's length price.
5. Inclusion of certain comparables by the Transfer Pricing Officer (TPO).
6. Exclusion of certain comparables by the Dispute Resolution Panel (DRP).
7. Non-exclusion of IBI Chematur (Engineering and Consultancy) Ltd. as a comparable.
8. Non-exclusion of Mahindra Consulting Engineers Ltd. as a comparable.
9. Application of comparability criteria/filters by the TPO.
10. Proper Functional, Asset, and Risk (FAR) analysis by the TPO.
11. Computation of Profit Level Indicator (PLI) by the TPO.
12. Exclusion of certain transactions while computing the total value of international transactions.
13. Adjustment for varying risk profiles and working capital differences.
14. Benefit of arm's length range of +/- 5%.
15. Compliance with DRP directions by the AO.
16. Disallowance of ?1,75,852 on account of gifts and rewards distributed to employees.

Detailed Analysis:

1. Validity of the Order Passed by the AO:
The taxpayer challenged the validity of the order passed by the AO under Section 143(3)/144C of the Income Tax Act, 1961. The Tribunal did not find any substantial grounds to declare the order invalid.

2. Limitation of the Final Assessment Order:
The taxpayer argued that the final assessment order was barred by limitation. However, this contention was not upheld by the Tribunal, which found the order to be within the prescribed time limits.

3. Assessment of Income:
The AO assessed the income of the taxpayer at ?9,07,33,200 against the returned loss of ?6,95,65,715. The Tribunal found that the AO had erred in this assessment and provided partial relief to the taxpayer.

4. Addition on Account of Arm's Length Price:
The DRP confirmed an addition of ?2,09,91,628 due to differences in the arm's length price. The Tribunal reviewed the comparables and the adjustments made and provided partial relief by excluding certain comparables.

5. Inclusion of Comparables by the TPO:
The TPO included Mitcon Consultancy & Engineering Services Ltd., IBI Chematur (Engineering & Consultancy) Ltd., and Mahindra Consulting Engineers Ltd. as comparables. The taxpayer contested their inclusion.

6. Exclusion of Comparables by the DRP:
The DRP excluded five out of nine comparables selected by the TPO. The Tribunal further reviewed the inclusion and exclusion of comparables.

7. Non-exclusion of IBI Chematur:
The Tribunal found that IBI Chematur was not a suitable comparable due to its involvement in the sale of engineering equipment and substantial R&D expenditures. It ordered the exclusion of IBI Chematur from the list of comparables.

8. Non-exclusion of Mahindra Consulting Engineers:
The Tribunal upheld the inclusion of Mahindra Consulting Engineers Ltd. as a comparable, following the decision in BG Exploration and Production India Ltd. vs. JCIT, which found it to be engaged in similar consultancy services.

9. Application of Comparability Criteria by the TPO:
The taxpayer argued that the TPO did not apply comparability criteria uniformly. The Tribunal provided partial relief by excluding certain comparables that did not meet the criteria.

10. FAR Analysis by the TPO:
The taxpayer contended that the TPO did not conduct a proper FAR analysis. The Tribunal reviewed the FAR analysis and provided partial relief by excluding certain comparables.

11. Computation of PLI:
The taxpayer argued that the TPO erred in computing the PLI. The Tribunal reviewed the computation and provided partial relief by excluding certain comparables.

12. Exclusion of Certain Transactions:
The taxpayer argued for the exclusion of the purchase of fixed assets and reimbursements while computing the total value of international transactions. The Tribunal provided partial relief by adjusting the value of international transactions.

13. Adjustment for Risk Profiles and Working Capital Differences:
The Tribunal agreed that the taxpayer was entitled to an adjustment for varying risk profiles and working capital differences and provided partial relief accordingly.

14. Benefit of Arm's Length Range:
The taxpayer argued for the benefit of the arm's length range of +/- 5%. The Tribunal upheld this contention and provided partial relief.

15. Compliance with DRP Directions:
The taxpayer argued that the AO did not comply with the DRP's directions. The Tribunal found that the AO had not fully complied and provided partial relief.

16. Disallowance of Gifts and Rewards:
The AO disallowed ?1,75,852 on account of gifts and rewards distributed to employees, citing violation of Section 40A(3). The Tribunal upheld this disallowance, finding that the expenses were incurred in cash and could not be attributed to business purposes.

Conclusion:
The appeal filed by the taxpayer was partly allowed, with the Tribunal providing partial relief on several grounds, including the exclusion of certain comparables and adjustments for risk profiles and working capital differences. The disallowance of expenses on gifts and rewards was upheld.