2013 (11) TMI 1413 - AT - Income Tax

Tax Tribunal Upholds Adjustments, Excludes Comparable, Directs TPO on TNMM, Dismisses Assessee's Pleas

The Tribunal upheld the Tax Officer's adjustments based on current year data, dismissing the assessee's plea for using multiple years' data. Saket ... Selection of comparables – Held that:- The event management division of Saket Projects Limited was taken as comparable - The event management was done by sponsorships in the case of assessee which is evident form various documents placed - Further the segment allocation of expenses also appears to be not reliable - In the case of Saket Projects Ltd. there is functional dissimilarity - When direct comparables are available then segmental results of companies engaged in other business should not be taken as comparable – Decided in favour of assessee. Non-operating income – Held that:- While computing operating margin under TNMM non-operating income is not to be considered – The TPO is directed to exclude miscellaneous income of ICRA Mannagement Consultancy Services – The nature of such miscellaneous income could not be defined with the documents available – The issue was restored for fresh decision. Overstated profit of comparable – Held that:- On perusal of the Audit Report of the comparable company - There was an abnormality in the accounts of comparable Education Consultant (P) Ltd. overstating the profit to the tune of ₹ 2.72 crores – This abnormal profit needs to be adjusted while working out the OP/TC in this account of comparables – The issue was restored for fresh decision. Foreign exchange difference – Held that:- The issue was no more res integra – Following ITAT, Bangalore Bench in the case of SAP Labs India (P) Ltd. vs. ACIT [2010 (8) TMI 676 - ITAT, BANGALORE] - The foreign exchange gain is an integral part of the sale proceeds of an assessee carrying on an export business - This income should not be excluded from the computation of the operating margin of the assessee company – Decided in favour of assessee. Risk profile and working capital adjustment – Held that:- No risk adjustment can be allowed when the same has not been quantified - The assessee has failed to bring any evidence on record to show that there was any difference in risk profile of comparable companies – If difference in the risk results into deflation and inflation of the financial results of comparables adjustment can be made on this fact - The assessee has also failed to establish any working capital difference – Decided against assessee. Arms length Range – Held that:- As per amendment inserted by the Finance Act, 2012 retrospectively - Benefit of +/- 5% under the Proviso to section 92C(2) of the Act shall not be allowed for the purpose of computation of arm’s length price – Decided against assessee. Depreciation on computer peripherals – Held that:- Following Commissioner of Income Tax vs. BSES Yamuna Powers Ltd. [2010 (8) TMI 58 - DELHI HIGH COURT] - Computer accessories and peripherals such as, printers, scanners and server etc. form an integral part of the computer system - The computer accessories and peripherals cannot be used without the computer - Depreciation @ 60% on such items shall be allowed – Decided in favour of assessee. Professional consultancy fee – Held that:- The DRP has directed the Assessing Officer to verify the claim of the assessee and allow deduction if the TDS has been deducted - The direction of the DRP is upheld – Decided against assessee. Issues Involved:1. Validity of the assessment order under Section 143(3) read with Section 144C.2. Difference in assessed income and declared income.3. Addition due to difference in arm's length price.4. Inclusion of Saket Projects Limited as a comparable.5. TNMM (OP/TC) calculation for ICRA Management Consultant Services Limited.6. Profit overstatement by Educational Consultants (P) Ltd.7. Uniform application of comparability criteria/filters.8. Use of segment accounts versus direct comparables.9. Appropriateness of comparables with the level of operation.10. Exclusion of exceptional comparables with abnormal profits/losses.11. Exclusion of foreign exchange fluctuation income.12. Exclusion of foreign exchange fluctuations in comparables.13. Adjustments for varying risk profiles and working capital differences.14. Rejection of comparables provided by the appellant.15. Application of +/- 5% range under Section 92C(2).16. Use of multiple years' data versus current year data.17. Depreciation rate on computer peripherals.18. Disallowance of professional consultancy fee under Section 40(a)(ia).19. Disallowance of donation under Section 80G.Detailed Analysis:1. Validity of the Assessment Order:The order passed by the Assessing Officer under Section 143(3) read with Section 144C was challenged but no specific issue was raised, and it was dismissed as general in nature.2. Difference in Assessed Income and Declared Income:The assessee's objection to the assessed income being higher than declared income was dismissed as it was general in nature.3. Addition Due to Difference in Arm's Length Price:The addition of Rs.3,99,21,602 as a difference in arm's length price was contested. The Tribunal upheld the TPO's adjustments based on current year data, dismissing the assessee's plea for using multiple years' data.4. Inclusion of Saket Projects Limited as Comparable:The Tribunal found that Saket Projects Limited was not functionally comparable to the assessee due to its involvement in event management with sponsorships. The segmental allocation of expenses was also unreliable. Therefore, Saket Projects Limited was excluded as a comparable.5. TNMM (OP/TC) Calculation for ICRA Management Consultant Services Limited:The TPO included miscellaneous income in the calculation of TNMM, which the assessee contested. The Tribunal remanded the issue to the TPO to exclude the miscellaneous income if it was not operational.6. Profit Overstatement by Educational Consultants (P) Ltd.:The auditors reported an overstatement of profit by Rs.2.72 crores. The Tribunal directed the TPO to adjust the profit while working out the OP/TC.7. Uniform Application of Comparability Criteria/Filters:The Tribunal dismissed the grounds related to the uniform application of comparability criteria/filters as they were general and settled against the assessee.8. Use of Segment Accounts versus Direct Comparables:The Tribunal held that when direct comparables are available, segmental results of companies engaged in other businesses should not be used. This supported the exclusion of Saket Projects Limited.9. Appropriateness of Comparables with the Level of Operation:The Tribunal found no merit in the assessee's plea that the comparables used by the TPO were not appropriate for the level of operation.10. Exclusion of Exceptional Comparables with Abnormal Profits/Losses:The Tribunal upheld the principle that high-profit comparables should not be excluded solely based on high margins if they are functionally comparable.11. Exclusion of Foreign Exchange Fluctuation Income:The Tribunal directed the TPO to include foreign exchange fluctuation income as part of the operating income while computing the PLI, following established precedents.12. Exclusion of Foreign Exchange Fluctuations in Comparables:The Tribunal agreed that if foreign exchange fluctuation income is included for the assessee, it should also be included for the comparables.13. Adjustments for Varying Risk Profiles and Working Capital Differences:The Tribunal dismissed the plea for risk adjustment and working capital differences due to lack of quantification and evidence from the assessee.14. Rejection of Comparables Provided by the Appellant:The Tribunal found no merit in the assessee's plea regarding the rejection of comparables provided by it.15. Application of +/- 5% Range under Section 92C(2):The Tribunal dismissed the ground, citing the retrospective amendment by the Finance Act, 2012, which clarified that the +/- 5% range is not allowed for computing arm's length price.16. Use of Multiple Years' Data versus Current Year Data:The Tribunal upheld the TPO's use of current year data, dismissing the assessee's plea for using multiple years' data, in line with Rule 10B(4) and precedents.17. Depreciation Rate on Computer Peripherals:The Tribunal allowed the higher depreciation rate of 60% on computer peripherals, following the jurisdictional High Court's decisions.18. Disallowance of Professional Consultancy Fee under Section 40(a)(ia):The Tribunal upheld the DRP's direction to the Assessing Officer to verify the TDS deduction and allow the deduction if verified.19. Disallowance of Donation under Section 80G:The ground was not pressed by the assessee and was dismissed as not pressed.Conclusion:The Tribunal provided a detailed analysis of each issue, upholding some of the assessee's contentions while dismissing others based on legal precedents and factual findings.