2018 (12) TMI 1609 - AT - Income Tax

Tribunal excludes companies from comparables list in Transfer Pricing Adjustment.

M/s Evolving Systems Network India Pvt. Ltd., Versus The Income-tax Officer, Ward-2 (1) (2), Bengaluru.

The Tribunal partially allowed the appeal by directing the exclusion of certain companies from the list of comparables used for Transfer Pricing ... Transfer pricing adjustment - comparable selection - HELD THAT:- Assessee is a company engaged in the business of providing contract Software Development Services (SWD Services) and providing Information Technology Enabled Services (ITES) to its holding company Evolving Systems USA as a captive service provider. The transaction of rendering software development services to holding company was a transaction with an Associated Enterprise (AE) and was therefore an international transaction. Companies functionally dissimilar with that of assessee need to be deselected from final list of comparable. - Rule 10B Followed ITAT Delhi Bench decision in the case of Agilis Information Technologies India (P) Ltd. Vs. ACIT [2017 (11) TMI 908 - ITAT DELHI] Issues:Transfer Pricing Adjustment - Exclusion of Comparable CompaniesAnalysis:1. The appellant, a company providing Software Development Services and IT Enabled Services to its holding company, was involved in an international transaction. The Transfer Pricing Officer (TPO) determined the Arm's Length Price (ALP) using the Transaction Net Margin Method (TNMM) with Operating Profit/Total Cost (OP/TC) as the profit level indicator.2. The TPO selected 10 comparable companies for comparison, resulting in an average mark-up of 22.63%. The TPO's ALP calculation led to an adjustment of Rs. 1,40,06,512 in the appellant's income, which was added by the Assessing Officer (AO).3. The Disputes Resolution Panel (DRP) directed the exclusion of certain companies from the list of comparables. The appellant challenged the inclusion of four companies, arguing for their exclusion based on functional comparability. The Tribunal referred to a similar case and excluded three companies, namely Infosys Ltd., Larsen & Toubro Infotech Ltd., and Persistent Systems Ltd., from the list of comparables.4. The Tribunal found that these companies were not functionally comparable to the appellant based on their business profiles and activities. The exclusion was in line with previous decisions and the provisions of Rule 10B(2) of the Income Tax Rules, 1962.5. Additionally, the appellant sought the exclusion of Genesys International Corporation Ltd. The Tribunal determined that Genesys was not engaged in software development services but in GIS-based services, leading to its exclusion from the list of comparables.6. The Tribunal directed the TPO to exclude the mentioned companies, recalculate the average arithmetic mean of the remaining comparables, and apply the appropriate adjustment within the permissible range. The appeal was partly allowed, and the decision was pronounced on December 21, 2018.