2014 (4) TMI 1089 - AT - Income Tax

Tribunal excludes companies from transfer pricing comparables, upholding CIT(A) decision.

Income Tax Officer Ward 2 (1), Versus. M/s. Knoah Solutions (P) Ltd.,

The Tribunal upheld the CIT(A)'s decision to exclude Infosys BPO Ltd. and Wipro Ltd. from the list of comparables for determining the Arm's Length Price ... Transfer pricing adjustment - exclusion of comparable - Held that:- No infirmity in the action of the CIT(A) in excluding the two companies, viz. Infosys and Wipro from the list of comparables. We accordingly uphold the order of the CIT(A) on this aspect reject the grounds of the Revenue on this appeal. See Capital IQ Information Systems (India) (P.) Ltd. Versus Deputy Commissioner of Income-tax (International Taxation) [ 2014 (3) TMI 626 - ITAT HYDERABAD ] Eclerx Services Technologies it is difficult to find out any relatively equal degree of comparability as Eclerx Services, which is engaged in providing high end services involving specialized knowledge and domain enterprise, i.e. KPO companies, and the said entities cannot be taken as comparable for the purpose of determining ALP of the transactions of the assessee company with its AE. Further, in the case of Market Tools Research (2013 (12) TMI 414 - ITAT HYDERABAD), it has been held that Eclerx Services cannot be taken as a comparable in view of the extraordinary profits of that company and that the company was engaged with knowledge process outsourcing business, which is distinct and different from the assessee’s business. Moldtek Technologies Ltd., in the proceedings for the assessment year 2008-09, in assessee’s own case, the DRP has accepted the assessee’s contention that that company cannot be taken as comparable because of exceptional financial results, due to merger/de-merger. In this view of the matter, the CIT(A) in our view is justified in excluding these two companies as well from the list of comparables. - Decided against revnue Issues:1. Determination of ALP with respect to exclusion of certain companies from the list of comparables.Analysis:The judgment pertains to an appeal by the Revenue against the order of the Commissioner of Income-tax(Appeals) III, Hyderabad for the assessment year 2007-08. The grievance of the Revenue primarily revolves around the determination of Arm's Length Price (ALP) concerning the exclusion of specific companies from the list of comparables, namely Infosys BPO Ltd., Wipro Ltd., Moldtek Technologies, and Eclerx Services Limited.Regarding Infosys BPO Ltd. and Wipro Limited, the Learned Departmental Representative argued that their exclusion based on turnover differences was unjustified. It was contended that in the ITES sector, the size of the company does not impact margins significantly, and turnover should not be a decisive factor, especially for entities operating on a cost-plus pricing model. The Revenue emphasized the importance of quality manpower over turnover size, citing relevant tribunal decisions. However, the assessee's counsel highlighted the giants' turnover exceeding Rs. 200 Crores and relied on precedents supporting their exclusion, emphasizing the relevance of turnover in determining comparability.The Tribunal, after considering the arguments and precedents, upheld the CIT(A)'s decision to exclude Infosys and Wipro from the list of comparables. The Tribunal found consistency in Hyderabad bench decisions and agreed with the rationale provided by the CIT(A), thereby rejecting the Revenue's grounds on this issue.Regarding the exclusion of Moldtek Technologies and Eclerx Services Technologies, the Revenue supported the Assessing Officer's stance, while the assessee's counsel justified their exclusion due to exceptional circumstances. The Tribunal analyzed the functional profiles of these companies, particularly Eclerx Services, as KPO entities providing specialized services, which led to their non-comparability with the assessee. Referring to the Maersk Global Services Centres case and other precedents, the Tribunal concluded that these companies could not be considered comparable due to their unique nature and financial results. Consequently, the Tribunal upheld the CIT(A)'s decision to exclude Moldtek Technologies and Eclerx Services Technologies from the comparables list, dismissing the Revenue's appeal.In conclusion, the Tribunal dismissed the Revenue's appeal, affirming the CIT(A)'s orders on the exclusion of specific companies from the list of comparables, based on detailed analysis and consistent legal principles.Order pronounced in the court on 25.04.2014.