2020 (12) TMI 1191 - AT - Income Tax

TP Adjustment - comparable selection - HELD THAT - Persistent Systems Limited - As segmental details were not available and it cannot be included in the list of comparables. Accordingly, we direct the TPO/Assessing Officer to exclude the company from the list of comparables. Sasken Communication Technologies Limited - As considered as not comparable in the case of LG Software India Pvt. Ltd. 2020 (8) TMI 832 - ITAT BANGALORE in the Assessment Year 2011-12 on the reason that the company is functionally distinguishable to the assessee's company since Sasken Communication Technologies is dealing with the Media Products and R D activities with no break up of segmental information. Accordingly, we direct the TPO/Assessing Officer to exclude this company from the list of comparables. Evoke Technologies Limited - When both the Assessee and the revenue seek inclusion of this company, there was no valid basis for the DRP to suo motto exclude this company from the list of comparable companies. In the decision cited STERLING COMMERCE SOLUTIONS INDIA PRIVATE LTD. 2020 (2) TMI 1279 - ITAT BANGALORE such as the Assessee, this company was held to be a valid comparable company and included in the list of comparable companies. We therefore direct inclusion of this company in the list of comparable companies.

Issues Involved:
1. Rejection of Transfer Pricing (TP) documentation.
2. Comparability analysis and selection of comparable companies.
3. Inclusion and exclusion of specific companies for comparability.
4. Application of multiple year/prior year data.
5. Treatment of foreign exchange fluctuations.
6. Adjustment towards the difference in risk profile.
7. Charging of interest under section 234B of the Income-tax Act, 1961.

Detailed Analysis:

1. Rejection of Transfer Pricing (TP) documentation:
The assessee challenged the rejection of its TP documentation by the TPO and the subsequent adjustment to the transfer price for its software development services. The Tribunal noted that the assessee did not press this ground during the hearing, thus it was not adjudicated.

2. Comparability analysis and selection of comparable companies:
The Tribunal examined the rejection of the comparability analysis performed by the assessee and the acceptance of the analysis by the TPO. The assessee did not press this ground either, leading to no adjudication on this issue.

3. Inclusion and exclusion of specific companies for comparability:
Persistent Systems Limited: The Tribunal found that this company, engaged in diversified activities with no segmental breakup, was not comparable. The Tribunal directed the TPO/Assessing Officer to exclude Persistent Systems Limited from the list of comparables, following the judicial precedence set in the case of LG Software India Pvt. Ltd.

Sasken Communication Technologies Limited: The Tribunal noted that this company was engaged in media products and R&D activities with no segmental information, making it functionally dissimilar to the assessee. Therefore, the Tribunal directed the TPO/Assessing Officer to exclude this company from the list of comparables.

E-Zest Solutions Limited: The assessee argued for the exclusion of this company, claiming it was engaged in Knowledge Process Outsourcing (KPO) and not software development. The Tribunal remitted the issue to the Assessing Officer/TPO for examination of functional dissimilarities.

LGS Global Limited: The Tribunal referred to a previous decision where it was held that the inclusion/exclusion of this company should be determined after verifying the employee cost and other relevant facts. The Tribunal remitted the issue back to the Assessing Officer/TPO for fresh consideration.

Evoke Technologies Pvt. Ltd.: The Tribunal found merit in the assessee's argument that this company should not have been excluded by the DRP suo moto, especially when both the assessee and the revenue sought its inclusion. The Tribunal directed the TPO/Assessing Officer to include Evoke Technologies Pvt. Ltd. in the list of comparables.

4. Application of multiple year/prior year data:
The assessee did not press this ground during the hearing, and thus it was not adjudicated.

5. Treatment of foreign exchange fluctuations:
The assessee did not press this ground during the hearing, and thus it was not adjudicated.

6. Adjustment towards the difference in risk profile:
The assessee did not press this ground during the hearing, and thus it was not adjudicated.

7. Charging of interest under section 234B of the Income-tax Act, 1961:
The assessee did not press this ground during the hearing, and thus it was not adjudicated.

Conclusion:
The Tribunal partly allowed the appeal for statistical purposes, directing the TPO/Assessing Officer to exclude Persistent Systems Limited and Sasken Communication Technologies Limited from the list of comparables, and to include Evoke Technologies Pvt. Ltd. The issues regarding E-Zest Solutions Limited and LGS Global Limited were remitted back to the TPO/Assessing Officer for fresh consideration. No other grounds were argued before the Tribunal.

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