2014 (3) TMI 626 - AT - Income Tax

Extraordinary Events, Supernormal Profits Affect ALP; Foreign Exchange Gains Included in Operating Margins

ITAT Hyderabad upheld the DRP's view that extraordinary events like mergers impact profitability and require verification by the TPO, excluding such ... Computation of Arm’s length price - Selection of comparables by TPO - Non-consideration of foreign exchange fluctuation gain/loss in determining Arm's Length Price (ALP) – Held that:- The view of the DRP is upheld that extra-ordinary event like merger and de-merger will have an effect on the profitability of the company in the financial year in which such event takes place - It is the contention of the assessee that in case of the aforesaid company, there is amalgamation in December, 2006, which has impacted the financial result - This fact has to be verified by the TPO - If it is found upon such verification that the amalgamation in fact has taken place, then the aforesaid comparable has to be excluded. Mold Tek Technologies Ltd. - Eclerx Services Ltd. – Held that:- The DRP has rightly accepted the assessee's contention that this company cannot be treated as comparable because of exceptional financial result due to merger/de-merger - the assessee's contention is accepted that this company cannot be treated as comparable - the company has shown super normal profit working out to 113% - Relying upon Teva India (P.) Ltd. Versus Deputy Commissioner of Income-tax, Range 8(2), Mumbai [2011 (1) TMI 1210 - ITAT MUMBAI] companies showing supernormal profit cannot be treated as comparable – thus, this company cannot be treated as a comparable. Maple e-Solutions Ltd. & Tricom Corp Ltd. – Held that:- The decision in ITO v. CRM Services India (P) Ltd. Delhi [2011 (6) TMI 398 - ITAT DELHI] followed - overall profitability of the company cannot be applied in the case of the assessee as it will amount to comparing incomparable cases - In view of a question mark on the reputation of the owner, it would be unsafe to take their results for comparison of the profitability of the assessee - these two companies cannot be accepted as comparables. HCL Comnet Systems & Services Limited, Infosys BPO Limited & Wipro Limited – Held that:- The TPO has excluded the companies whose turnover is less than Rs. One Crore, on the ground that they may not be representing the industry trend - That very logic also applies to the companies having high turnover of over ₹ 200 crores as against the assessee's turnover of only ₹ 60 crores, and therefore, it would be fair enough to exclude those companies also – The decision in Agnity India Technologies (Formerly Genband Pvt. Ltd.) Versus Income-tax Officer, [2010 (11) TMI 852 - ITAT DELHI] followed – thus, the orders of the DRP as well as the assessment order passed under S.143(3) read with S.144C of the Act set aside – the matter remitted back to the TPO for fresh examination of ALP – Decided in favour of Assessee. Foreign exchange fluctuation gain/loss not considered – Held that:- The decision in Sap Labs India (P.) Ltd. v. Asstt. CIT [2010 (8) TMI 676 - ITAT, BANGALORE] followed - The foreign exchange fluctuation gains is nothing but an integral part of the sales proceeds of an assessee carrying on export business - foreign exchange fluctuation gains form part of the sale proceeds of exporter-assessee - The foreign exchange fluctuations income cannot be excluded from the computation of the operating margin of the assessee company - even for the year under appeal also the same principle should be applied, and while computing the margin for determining the ALP for the assessment year under appeal, the foreign exchange gain/loss has to be taken as part of the operating margin – the AO is directed to treat the foreign exchange fluctuation gain/loss as part of the operating margin of the comparable company – Decided in favour of Assessee. 1. ISSUES PRESENTED and CONSIDERED 1. Whether the comparables selected by the Transfer Pricing Officer (TPO) for determining the Arm's Length Price (ALP) are appropriate and comply with statutory provisions and accepted transfer pricing principles. 2. Whether companies undergoing extraordinary events such as merger/demerger or having supernormal profits can be treated as comparables. 3. Whether companies functionally dissimilar or acting as intermediaries outsourcing major activities can be considered comparables. 4. Whether companies with directors involved in fraud and unreliable financials can be accepted as comparables. 5. Whether industrial giants or market leaders with substantially higher turnover than the assessee can be treated as comparables. 6. Whether the foreign exchange fluctuation gain/loss should be included in computing the operating margin for ALP determination. 2. ISSUE-WISE DETAILED ANALYSIS Issue 1: Appropriateness of Comparables Selected by the TPO Relevant Legal Framework and Precedents: - Transfer Pricing provisions under Sections 92 to 92F of the Income Tax Act and Rule 10B of the Income Tax Rules govern determination of ALP and comparability analysis. - Rule 10B(2) requires comparability analysis to consider functions performed, assets employed, risks assumed, contractual terms, and economic conditions including geographical location, market size, laws, labor and capital costs, and competition. - TNMM (Transactional Net Margin Method) is accepted as an appropriate method for ALP determination. Court's Interpretation and Reasoning: - The TPO accepted the TNMM method and the data bases (Prowess and Capitaline) used by the assessee for selecting comparables. - The TPO accepted 11 out of 15 comparables selected by the assessee but rejected others based on application of additional filters including financial year data availability, related party transactions, export revenue, operating losses, and functional/economic dissimilarity. - The Court noted the assessee's initial exclusion of many companies on qualitative grounds without detailed explanation and selective application of quantitative filters, which raised doubts on objectivity. - The TPO's approach of applying consistent filters including turnover, related party transactions, export sales, and functional similarity was upheld as necessary to ensure comparability. Key Evidence and Findings: - The TPO's filters excluded companies without data for FY 2006-07, with less than 75% ITES revenue, with more than 25% related party transactions, with less than 25% export sales, with persistent losses, or with different financial year ends. - The TPO computed operating margins excluding non-operating income/expenses to arrive at a reliable profit level indicator (PLI). Application of Law to Facts: - The TPO's selection of comparables after applying objective filters and rejection of others was consistent with Rule 10B and transfer pricing principles. - The Court found the TPO's methodology sound and accepted the need to exclude non-comparable companies to determine ALP reliably. Treatment of Competing Arguments: - The assessee challenged the TPO's rejection of certain comparables and the filters applied, alleging selective and mechanical approach. - The Department supported the TPO's approach, emphasizing the need for consistency and reliability in comparability analysis. Conclusions: - The Court upheld the TPO's approach to comparables selection subject to specific exceptions discussed below. Issue 2: Treatment of Companies Undergoing Extraordinary Events or Showing Supernormal Profits Relevant Legal Framework and Precedents: - Transfer pricing principles exclude companies with extraordinary circumstances affecting financial results to avoid distortion. - Judicial precedents hold that companies showing supernormal profits are not suitable comparables. Court's Interpretation and Reasoning: - Companies undergoing merger/demerger during the relevant year have exceptional financial results and should be excluded. - Companies showing supernormal profits are not representative of the market and should be excluded as comparables. Key Evidence and Findings: - Accentia Technologies Ltd. and Mold Tek Technologies Ltd. underwent merger/demerger impacting financials. - Mold Tek Technologies Ltd. showed supernormal profit of 113%. - Eclerx Services Ltd. showed supernormal profit of 89% and was engaged in KPO services. Application of Law to Facts: - The Court accepted the assessee's contention and prior DRP findings that merger/demerger impacts financial results and such companies should be excluded. - The Court relied on Tribunal decisions excluding companies with supernormal profits. Treatment of Competing Arguments: - The Department argued that merger facts were not placed before TPO and DRP order for AY 2008-09 is not binding for AY 2007-08. - The Court directed verification of merger facts by TPO and held that extraordinary events justify exclusion. Conclusions: - Companies with extraordinary events impacting financials and those with supernormal profits cannot be treated as comparables. Issue 3: Functional Dissimilarity and Outsourcing Companies as Comparables Relevant Legal Framework and Precedents: - FAR analysis is critical to comparability; companies with different functions or business models cannot be comparables. - Companies acting as intermediaries outsourcing major activities do not perform comparable functions. Court's Interpretation and Reasoning: - Coral Hub Ltd. (formerly Vishal Information Technologies Ltd.) outsourced significant portion of its work and acted as an agent, making it functionally dissimilar. - The Court relied on DRP and ITAT Mumbai decisions excluding such companies due to functional dissimilarity. Key Evidence and Findings: - Vendor payments and business model of Coral Hub Ltd. showed outsourcing and intermediary role. Application of Law to Facts: - The Court accepted that companies outsourcing major activities are not comparable to a company performing full ITES functions. Conclusions: - Companies functionally dissimilar or acting as intermediaries outsourcing major work cannot be considered comparables. Issue 4: Companies with Directors Involved in Fraud and Unreliable Financials Relevant Legal Framework and Precedents: - Financial reliability is a key criterion; companies with tainted financials or fraud allegations are unsuitable as comparables. Court's Interpretation and Reasoning: - Maple e-Solutions Ltd. and Triton Corp Ltd. were alleged to have directors involved in fraud, rendering financials unreliable. - The Court relied on a Delhi ITAT decision holding financials of these companies as unreliable and unsuitable for comparability. Conclusions: - Companies with fraudulent directors and unreliable financials cannot be accepted as comparables. Issue 5: Appropriateness of Industrial Giants or Market Leaders with Substantially Higher Turnover as Comparables Relevant Legal Framework and Precedents: - Size and turnover are relevant factors in comparability; companies with substantially higher turnover may have different risk profiles and bargaining power. - Judicial precedents exclude companies with turnover outside a reasonable range relative to the assessee. Court's Interpretation and Reasoning: - HCL Comnet Systems & Services Ltd., Infosys BPO Ltd., and Wipro Ltd. have turnovers significantly higher than the assessee. - The assessee operates as a captive unit with limited risk, unlike these industrial giants assuming full business risks. - The Court accepted the turnover filter of Rs. 1 crore to Rs. 200 crore as reasonable for comparability given the assessee's turnover of Rs. 60 crores. Key Evidence and Findings: - Turnovers: HCL Comnet ~Rs. 260 crores, Infosys BPO ~Rs. 650 crores, Wipro ~Rs. 940 crores versus assessee's Rs. 60 crores. Application of Law to Facts: - The Court applied consistent logic that just as low turnover companies are excluded, very high turnover companies should also be excluded to maintain comparability. Treatment of Competing Arguments: - The Department argued turnover alone is not sufficient ground for exclusion, as TPO considered only margins. - The Court rejected this, emphasizing that size impacts risk and profitability, affecting comparability. Conclusions: - Industrial giants or market leaders with substantially higher turnover than the assessee cannot be considered comparables. Issue 6: Inclusion of Foreign Exchange Fluctuation Gain/Loss in Operating Margin Computation Relevant Legal Framework and Precedents: - Foreign exchange gains/losses arising in the normal course of business should be included in operating margin for ALP computation. - Tribunal decisions have held foreign exchange fluctuations as integral to export business income and should not be excluded. Court's Interpretation and Reasoning: - The TPO and DRP excluded foreign exchange fluctuation gain/loss from operating margin computation, considering them non-operating. - The Court relied on Bangalore Bench decision in SAP Labs India and Hyderabad Bench decision in Four Soft Ltd. holding such gains/losses as part of operating margin. - The Court noted that in the assessee's own case for AY 2008-09, foreign exchange fluctuation was considered, and the same principle should apply. Application of Law to Facts: - The Court held that foreign exchange fluctuation gain/loss arises from normal business transactions and must be included in margin computations. Conclusions: - Foreign exchange fluctuation gain/loss must be treated as part of operating margin in ALP determination. 3. OVERALL CONCLUSIONS AND DIRECTIONS - The orders of the DRP and assessment under Sections 143(3) and 144C are set aside. - The matter is remanded to the TPO to determine ALP afresh after excluding comparables affected by extraordinary events, showing supernormal profits, functionally dissimilar, acting as intermediaries, with fraudulent financials, or having substantially higher turnover than the assessee. - The TPO is directed to include foreign exchange fluctuation gain/loss in computing operating margins for ALP determination. - The TPO shall verify facts of merger/amalgamation for relevant companies before exclusion.