Tribunal excludes companies from comparables list, corrects margin computation. Addressed consequential and academic grounds.

M/s Sitel India Pvt. Ltd. Versus Dy. Commissioner of Income Tax-11 (2) (1), Mumbai

M/s Sitel India Pvt. Ltd. Versus Dy. Commissioner of Income Tax-11 (2) (1), Mumbai - TMI Issues Involved:
1. Inclusion of Accentia Technologies Ltd. as a comparable.
2. Inclusion of Acropetal Technologies Ltd. (Seg) as a comparable.
3. Inclusion of ICRA Online Ltd. (Seg) as a comparable and computation of its operating margin.
4. Consequential and academic grounds of appeal.

Detailed Analysis:

1. Inclusion of Accentia Technologies Ltd. as a comparable:
The appellant contended that Accentia Technologies Ltd. (Accentia) is functionally different as it is engaged in software services and operates under peculiar circumstances. The Transfer Pricing Officer (TPO) included Accentia on the grounds that it is a BPO involved in healthcare receivable management. The appellant argued that Accentia is involved in software development and KPO services without separate segmental information, making it an unsuitable comparable. The Tribunal noted that Accentia's annual report indicates engagement in software services and sales of software products without segmental breakup. Citing various Tribunal and High Court decisions, the Tribunal directed the TPO/AO to exclude Accentia from the final list of comparables, thereby allowing the 13th ground of appeal.

2. Inclusion of Acropetal Technologies Ltd. (Seg) as a comparable:
The appellant argued that Acropetal Technologies Ltd. (Seg) (Acropetal) is engaged in KPO services, specifically in 'Engineering Design Services,' which are functionally different from the appellant's ITeS. The TPO/AO included Acropetal citing no distinction between BPO and KPO per CBDT Notification No. 11521. The Tribunal found that Acropetal's services, such as design engineering and architectural services, are indeed KPO services and functionally dissimilar to the appellant's BPO services. Following the Tribunal's decision in the appellant's own case for AY 2010-11, the Tribunal directed the TPO/AO to exclude Acropetal from the list of comparables, allowing the 14th ground of appeal.

3. Inclusion of ICRA Online Ltd. (Seg) as a comparable and computation of its operating margin:
The appellant contended that ICRA Online Ltd. (Seg) (ICRA) is engaged in KPO services, making it functionally different from the appellant's BPO services. The TPO included ICRA, considering it engaged in data processing and mining, similar to ITeS. The Tribunal found that ICRA's annual report does not describe the nature of services in the 'Outsourced Services' segment, but references to ICRA Ltd.'s annual report indicate KPO and online software services. The Tribunal also noted the incorrect computation of ICRA's margin by the TPO. Following the Tribunal's decision in the appellant's case for AY 2010-11, the Tribunal directed the exclusion of ICRA from the list of comparables and corrected the margin computation, allowing the 15th and 17th grounds of appeal.

4. Consequential and academic grounds of appeal:
Since the 13th, 14th, 15th, and 17th grounds of appeal were allowed, the 8th to 12th, 16th, 18th, and 19th grounds became academic in nature. The 20th ground of appeal regarding the benefit of +/- 5% under proviso to section 92C(2) of the Act and the 21st ground regarding levy of interest u/s 234B became consequential. The 22nd ground of appeal regarding initiation of penalty u/s 271(1)(c) was deemed premature.

Conclusion:
The appeal filed by the assessee was allowed, with the Tribunal directing the exclusion of Accentia Technologies Ltd., Acropetal Technologies Ltd. (Seg), and ICRA Online Ltd. (Seg) from the list of comparables, and correcting the computation of ICRA's margin. The consequential and academic grounds of appeal were addressed accordingly.