2015 (9) TMI 1476 - AT - Income Tax

Tribunal allows appeal, adds new comparable, resolves transfer pricing issue; directs Assessing Officer on TDS, foreign tax credits.

Ness Technologies (India) Pvt. Ltd. Versus Dy. Commissioner of Income Tax Central Circle–6 (1), Mumbai

The Tribunal partly allowed the appeal, directing the inclusion of CG-Vak Software and Exports Ltd. as a comparable, resolving the transfer pricing ... Transfer pricing adjustment - selection of comparable CG–Vak Software and Exports Ltd. - Held that:- No reason to sustain the order of the DRP in rejecting CG–Vak Software and Exports Ltd. as a comparable. Accordingly, we direct the Transfer Pricing Officer to include this company as comparable and determine the arm's length price. In the course of hearing, learned Counsel for the assessee submitted a working indicating the margin of comparables finally selected after including CG–Vak Software and Exports Ltd. as comparable. It was submitted, if CG–Vak Software and Exports Ltd. is included as a comparable, then the arithmetic mean of comparable companies would be 17.60% compared to assessee’s 13.50%. Hence, there would be no need for further adjustment to the arm's length price, as assessee’s margin would be within the tolerance band of ± 5%. Thus, he submitted, there will be no need to adjudicate other grounds on T.P. adjustment. On a perusal of the working submitted before us by the learned Counsel, we find the aforesaid submissions of learned Counsel for the assessee to be correct. In view of the aforesaid, as we have directed the Transfer Pricing Officer to include CG–Vak Software and Exports Ltd. as a comparable, by virtue of which assessee’s margin comes within the range of 5% of average arithmetic mean of comparables requiring no further adjustment, there is no need to adjudicate the other grounds relating to selection / rejection of comparables as well as risk and working capital adjustment raised by the assessee as they are of mere academic interest. However, we leave the issue raised in these grounds open for adjudication if they arise in future in any other assessment year. Short credit of TDS while computing the tax liability - Held that:- We cannot direct the Assessing Officer to give tax credits to the assessee without verifying the factual details. However, considering the fact that assessee has filed petition under section 154 of the Act before the Assessing Officer raising the aforesaid issues which is still pending, we direct the Assessing Officer to consider assessee’s petition under section 154 of the Act on merits and in accordance with law. Issues Involved:1. Rejection of CG-Vak Software and Exports Ltd. as a comparable.2. Giving short credit of TDS.3. Not giving effect to foreign tax credit.4. Levy of interest under sections 234B and 234C.5. Initiation of penalty proceedings under section 271(1)(c).Detailed Analysis:1. Rejection of CG-Vak Software and Exports Ltd. as a Comparable:The assessee argued that the Transfer Pricing Officer (TPO) rejected CG-Vak Software and Exports Ltd. on the ground that it is a loss-making company, which was factually incorrect. The Dispute Resolution Panel (DRP) rejected this company due to its turnover being significantly lower than the assessee's. The assessee contended that turnover should not impact profit margin comparability, citing several judicial precedents. The Tribunal agreed, noting that neither the assessee nor the TPO applied the turnover filter initially. It emphasized that low turnover alone does not affect profitability unless other factors are involved. The Tribunal directed the TPO to include CG-Vak Software and Exports Ltd. as a comparable, which, when included, brought the assessee's margin within the acceptable range, negating the need for further adjustments or adjudication on other grounds related to transfer pricing.2. Giving Short Credit of TDS:The assessee claimed that the Assessing Officer (AO) did not give full credit for TDS amounting to Rs. 6,64,856. The Tribunal acknowledged the issue and directed the AO to verify and give credit for the TDS after considering the assessee's application under section 154, which included the necessary details.3. Not Giving Effect to Foreign Tax Credit:The assessee raised the issue of not receiving credit for foreign taxes amounting to Rs. 20,28,803. Similar to the TDS issue, the Tribunal directed the AO to verify and give effect to the foreign tax credit based on the assessee's application under section 154, which provided the requisite details.4. Levy of Interest under Sections 234B and 234C:The Tribunal noted that the levy of interest under sections 234B and 234C is consequential and does not require adjudication at this stage.5. Initiation of Penalty Proceedings under Section 271(1)(c):The Tribunal deemed the challenge to the initiation of penalty proceedings under section 271(1)(c) as premature and dismissed this ground without adjudication.Conclusion:The Tribunal partly allowed the assessee's appeal, directing the inclusion of CG-Vak Software and Exports Ltd. as a comparable, which resolved the transfer pricing adjustment issue. It also instructed the AO to verify and give effect to the TDS and foreign tax credits based on the assessee's applications under section 154. Other grounds related to interest and penalty proceedings were dismissed as either consequential or premature.