2017 (5) TMI 1501 - AT - Income Tax

Assessee's Appeals Partly Allowed for AY 2011-12 & 2012-13

The Tribunal partly allowed the assessee's appeals for AY 2011-12 and 2012-13, directing the exclusion of non-comparable companies and treating foreign ... TPA - comparable selection criteria - Held that:- Assessee provides IT and Financial back office support services to various entities/ subsidiaries of its Parent Company all across the world. The assessee alongwith BC holdings (UK Limited) is a part of British Council which is an international organization based in UK, established for fostering educational opportunities and cultural relations.In the transfer pricing study report, the assessee has characterized itself as a service provide, thus companies functionally dissimilar with that of assessee need to be deselected as final list of comparable. Transfer pricing adjustment on account of imputing the interest on outstanding receivables - Held that:- Here in this year also, the fact remains the same that assessee is a debt free and it has neither received any interest from any creditors nor paid interest to debtors and no borrowed funds have been utilized for extending the time period of the receivables. Apart from this, it is also a fact that credit period extended to third parties is also same as provide to the AE, hence no adjustment is required to be made by treating it to be loan transaction and imputing interest on the delayed period receivables. Since similar facts and finding of Revenue authorities are permeating in this year also therefore, our finding given in the appeal for the AY 2011-12 would be squarely applicable and accordingly, this issue is decided in favour of the assessee. Foreign exchange gain or loss is operating in nature - Held that:- As already held that it is part of the operating income and therefore, it cannot be removed from the computation/working of the PLI. Accordingly, in view of the finding given in the appeal in the assessment year 2012-13, this issue too his decided in favour of the assessee. Issues Involved:1. Transfer Pricing Adjustment for Finance/IT Back Office Support Services.2. Treatment of Foreign Exchange Gain/Loss as Operating Income.3. Arm's Length Price (ALP) for Import of Fixed Assets.4. Interest on Delayed Receivables from Associated Enterprises (AEs).5. Penalty Proceedings under Section 271(1)(c).6. Computation of Interest under Sections 234B and 234C.Detailed Analysis:1. Transfer Pricing Adjustment for Finance/IT Back Office Support Services:The primary issue was the adjustment to the arm’s length price (ALP) of the assessee’s international transactions related to finance/IT back office support services. The assessee challenged the inclusion of three comparable companies: E-clerx Services Limited, TCS E-Serve Limited, and ICRA Techno Analytics Limited. The Tribunal found that E-clerx was not comparable due to its high-end KPO services and outsourcing model, which differed significantly from the assessee's back office support services. Similarly, ICRA Techno Analytics Limited was excluded as it was engaged in diverse activities like software development and consultancy, which were not comparable to the assessee’s services. TCS E-Serve Limited was also excluded due to its high brand value and lack of segmental bifurcation between transaction processing and technical services. Consequently, the Tribunal directed the AO/TPO to remove these comparables from the list.2. Treatment of Foreign Exchange Gain/Loss as Operating Income:The assessee argued that foreign exchange gain/loss should be treated as operating in nature while computing the operating margin. The Tribunal agreed, citing the Delhi High Court’s decision in Amri Price India Private Limited, which held that foreign exchange fluctuations are part of operating income. The Tribunal directed the TPO to treat foreign exchange gain/loss as operating in nature and adjust the PLI accordingly.3. Arm's Length Price (ALP) for Import of Fixed Assets:The TPO had determined the ALP of the assessee’s import of fixed assets as ‘Nil’ due to lack of third-party invoices. The Tribunal held that the TPO should have conducted a comparability analysis and could not arbitrarily determine the ALP as ‘Nil’. Additionally, the Tribunal noted that the transaction was tax-neutral since the depreciation on these assets was already considered in the operating cost. The Tribunal directed that no adjustment should be made on this account.4. Interest on Delayed Receivables from Associated Enterprises (AEs):The TPO treated the delay in receipt of payments from AEs as unsecured loans and charged interest. The Tribunal found that the assessee was a debt-free company and had extended similar credit periods to third parties without charging interest. Citing the Tribunal’s decision in Bechtel India Private Limited, the Tribunal held that no interest should be imputed on the delayed receivables and directed the deletion of this adjustment.5. Penalty Proceedings under Section 271(1)(c):The assessee contended that the AO/TPO erred in not examining the validity of initiation of penalty proceedings under Section 271(1)(c). However, this issue was not elaborated upon in the judgment.6. Computation of Interest under Sections 234B and 234C:The assessee challenged the AO’s computation of interest under Sections 234B and 234C. The Tribunal did not provide a detailed discussion on this issue, implying that it was not a significant point of contention in the appeals.Revenue’s Appeal:The Revenue’s appeal contested the exclusion of Accentia Technologies Private Limited as a comparable. The Tribunal upheld the DRP’s decision to exclude Accentia due to its acquisition of Tangent Corporation, which significantly affected its revenue and profit margins, making it non-comparable to the assessee.Conclusion:The appeals of the assessee for AY 2011-12 and 2012-13 were partly allowed, while the Revenue’s appeal for AY 2011-12 was dismissed. The Tribunal directed the AO/TPO to re-compute the ALP by excluding the non-comparable companies and treating foreign exchange gain/loss as operating income.