2017 (8) TMI 1557 - AT - Income Tax

ITAT deselects TCS-e-Serve, Infosys BPO, Excel Infoways as comparables for HR services transfer pricing

The ITAT Delhi ruled on transfer pricing adjustments for an assessee providing HR services, payroll processing, and data entry to its associated ... TP Adjustment - arm's length price adjustment to provision for ITES - purchase of fixed assets - netting off of receivables and payables - Comparable selection - HELD THAT:- Asessee is engaged in providing human resource related services, payroll processing services, training and performance system data entry, etc. to its AE. As a compensation for these services, the AE remunerated Baxter India at a cost plus 10% basis, thus companies functionally dissimilar with that of assessee need to be deselected from final list. TCS-e-Serve Ltd. functions included rendering of technical services like software testing etc., which required skilled persons. As far as the objection regarding related party transaction is concerned, we are in agreement with the reasoning given by ORP that since this company was taken over by TCS group, therefore, there was no question of any separate details being given about related party transaction. However, keeping in view the various factors, pointed out by Id. counsel for the assessee, which we have noted earlier, this company cannot be taken as a comparable to the tested party. Infosys BPO Ltd is predominantly into areas like Insurance, Banking, Financial Services, Manufacturing and Telecom which are in the niche areas, unlike the assessee. Functionally not comparable, presence of brand and extraordinary event that has taken place during the year on account of acquisition of Australian based company, we are of the considered opinion that Infosys BPO Ltd. should not be included in the list of comparables Excel Infoways Ltd. fails TPO's own filter of diminishing revenue and abnormal volatility in revenue and margins. The department has excluded such companies with consistent losses/diminishing revenue in an environment where Indian economy is growing at consistent rate. Having held so, the Assessing Officer included Excel Infoways Ltd. as a comparable without considering the fact that the said company does not pass the diminishing revenue filter - above company has super normal profits. R System International Limited - Since the assessee in the instant case has provided the audited quarterly results of the comparable company and the margin of the relevant financial year has been calculated, therefore, following the decisions MCKINSEY KNOWLEDGE CENTRE INDIA PVT. LTD. [2015 (3) TMI 1226 - DELHI HIGH COURT], the company cannot be excluded from the list of comparables Addition on account of purchase of fixed assets - DRP directed the TPO to restrict the addition to the amount of depreciation claimed during the year without the mark-up which resulted into adjustment - HELD THAT:- Since the facts of the impugned assessment year are identical to the facts of the case in the immediately preceding assessment year, therefore, following the order of the Tribunal in assessee's own case we restore this issue to the file of the Assessing Officer/TPO with direction to re-compute the addition, if any, in the light of the direction of the Tribunal. The grounds raised by the assessee are accordingly allowed for statistical purposes. Issues Involved:1. Adjustment of Arm's Length Price (ALP) in IT Enabled Services (ITES) Segment.2. Adjustment on Purchase of Fixed Assets.3. Levy of Interest under Sections 234B and 234C.4. Initiation of Penalty Proceedings under Section 271(1)(c).Issue-wise Detailed Analysis:1. Adjustment of Arm's Length Price (ALP) in IT Enabled Services (ITES) Segment:The assessee, engaged in providing ITES to its associated enterprises (AE), contested the TPO's adjustments. The TPO had initially selected 12 comparables with a mark-up of 25.38%, which was later reduced to 9 comparables with a mark-up of 27.65%. The DRP directed the exclusion of two comparables, reducing the mark-up to 22.26%. The assessee's mark-up was 10%. The Tribunal considered the exclusion of TCS e-Serve Ltd., Infosys BPO Ltd., and Excel Infoways Ltd., and the inclusion of R System International Ltd. It was noted that TCS e-Serve Ltd. and Infosys BPO Ltd. were functionally different, had significant brand value, and had undergone extraordinary events. Excel Infoways Ltd. failed the TPO's own filter of diminishing revenue and had supernormal profits. R System International Ltd. was included as it was functionally comparable, and quarterly results were available. The Tribunal directed the TPO to exclude TCS e-Serve Ltd., Infosys BPO Ltd., and Excel Infoways Ltd., and include R System International Ltd. in the list of comparables.2. Adjustment on Purchase of Fixed Assets:The assessee purchased fixed assets from its AE, which were necessary for its manufacturing plant. The TPO determined the arm's length value of the purchase as Nil, leading to an adjustment of Rs. 11,35,06,642/-. The DRP accepted the genuineness of the purchase but restricted the arm's length cost to the invoice value without mark-up, resulting in an adjustment of Rs. 13,51,543/-. The Tribunal restored the issue to the TPO with directions to re-compute the addition, if any, following the directions of the Tribunal in the assessee's own case for the preceding assessment year.3. Levy of Interest under Sections 234B and 234C:The Tribunal found that the levy of interest under Sections 234B and 234C is mandatory and consequential in nature. Therefore, the ground raised by the assessee was dismissed.4. Initiation of Penalty Proceedings under Section 271(1)(c):The Tribunal dismissed the ground relating to the initiation of penalty proceedings under Section 271(1)(c) as premature at this juncture.Conclusion:The appeal filed by the assessee was partly allowed for statistical purposes. The Tribunal directed the TPO to exclude certain comparables and include others in the ITES segment and to re-compute the addition on the purchase of fixed assets following the directions provided. The levy of interest under Sections 234B and 234C was upheld as mandatory and consequential, while the initiation of penalty proceedings was dismissed as premature.