2022 (12) TMI 418 - AT - Income Tax

TP Adjustment - exclusion of the comparable - HELD THAT - Companies functionally dissimilar with that of assessee company engaged in the business of export of Information Technology enabled Services (ITeS) need to be deselected from final list. Acquisition of a new type of business during the year is an exceptional event and renders the comparability of this entity which the assessee, who has no such event. So also the comparability depends upon the segment which forms the predominant activities of the entity and on this score, compnaies does not pass the test of comparability. Foreign exchange loss - treatment as operating in nature for transfer pricing purpose - HELD THAT - In DHL Express (India) (P) Ltd. 2011 (4) TMI 856 - ITAT MUMBAI and Hanil Tube India (P) Ltd. 2017 (2) TMI 1449 - ITAT CHENNAI it is held that foreign exchange fluctuations and profit on sale of assets do not form part of the operational income because these items have nothing to do with the main operations of the assessee. In these circumstances, we are of the considered opinion that the foreign exchange loss should not have been treated as operational expense and we direct the learned AO/Ld. TPO to treat the foreign exchange fluctuation loss as non-operating in nature for calculation of margins. Disallowance of interest on unsecured loan taken which is 100% subsidiary of the assessee - addition on the ground as it is not incurred for the purpose of assessee s business though the said borrowings were utilised for investments in subsidiaries which is part of business purpose of the assessee company - HELD THAT - As in assessee s own case for the assessment year 2011-12 wherein it is clearly held that the interest on unsecured loan taken from M/s. Social Media India Ltd., is an allowable expenditure. Respectfully following the view taken by a coordinate Bench of this Tribunal in assessee s own case, we allow this ground and direct the learned Assessing Officer to delete this addition.

Summary

Issues Involved:
1. Exclusion of certain comparables from the list for Transfer Pricing (TP) purposes.
2. Treatment of foreign exchange loss as operating or non-operating in nature for TP purposes.
3. Disallowance of interest on unsecured loans.
4. Treatment of trade receivables and the addition of interest on delayed payments.

Issue-wise Detailed Analysis:

1. Exclusion of Certain Comparables:
The assessee challenged the inclusion of certain comparables used by the Transfer Pricing Officer (TPO) for determining the Arm's Length Price (ALP) of international transactions. The TPO had included companies like Accentia Technologies Ltd., TCS e-Serve International Ltd., Cosmic Global Ltd., and Crossdomain Solutions Ltd. The assessee argued these companies were not functionally comparable due to reasons such as high turnover, super profits, and diversified activities. The Tribunal agreed with the assessee, citing previous decisions and extraordinary events affecting these companies. For instance, Accentia Technologies Ltd. was excluded due to an amalgamation impacting its profits, and TCS e-Serve International Ltd. was excluded due to its acquisition of Citi group's BPO arm, which was an exceptional event. Similarly, Cosmic Global Ltd. and Crossdomain Solutions Ltd. were excluded for failing the functional comparability test.

2. Treatment of Foreign Exchange Loss:
The assessee contended that foreign exchange loss should not be treated as an operating expense for TP purposes. The Tribunal referred to precedents such as DHL Express (India) (P) Ltd. vs. ACIT and DCIT vs. Hanil Tube India (P) Ltd., which held that foreign exchange fluctuations do not form part of operational income. Consequently, the Tribunal directed the Assessing Officer/TPO to treat the foreign exchange loss as non-operating in nature for the calculation of margins.

3. Disallowance of Interest on Unsecured Loans:
The assessee challenged the disallowance of interest on unsecured loans taken from its 100% subsidiary, arguing that the borrowings were used for business purposes. The Tribunal referred to its previous decision in the assessee's case for AY 2011-12, where it was held that investments in subsidiaries are for business purposes, following the Supreme Court's decision in SA Builders Ltd. vs. CIT. Therefore, the Tribunal directed the deletion of the disallowance of interest on unsecured loans.

4. Treatment of Trade Receivables:
The TPO had suggested an addition of interest on trade receivables beyond the credit period of 30 days, which was computed by the Dispute Resolution Panel (DRP) using international interest rates (LIBOR +2%). However, during the arguments, the assessee conceded this ground and did not insist on it. Consequently, the Tribunal dismissed this ground.

Conclusion:
The Tribunal allowed the appeal of the assessee for statistical purposes, directing the exclusion of certain comparables from the TP study, treating foreign exchange loss as non-operating, and allowing the interest on unsecured loans as a deductible expense. The issue of trade receivables was dismissed based on the assessee's concession.