Tribunal directs exclusion of comparables, reconsiders notional interest, and verifies TDS deduction.

Salesforce. com India Pvt. Ltd. Versus The Dy. Commissioner of Income-Tax, Circle-6 (1) (1), Bengaluru.

Salesforce. com India Pvt. Ltd. Versus The Dy. Commissioner of Income-Tax, Circle-6 (1) (1), Bengaluru. - TMI Issues Involved:

1. Transfer Pricing Matters
2. Grounds for Imputation of Notional Interest on Outstanding Receivables
3. Disallowance under Section 40(a)(ia) of the Act

Detailed Analysis:

Transfer Pricing Matters:

1. Adjustment to Transfer Price:
- The Dispute Resolution Panel (DRP) confirmed the adjustment of Rs. 26,548,569 for software development services, Rs. 102,622,022 for marketing and sales support services, and Rs. 113,123 for notional interest on outstanding receivables.
- The assessee contested the rejection of its Transfer Pricing (TP) documentation and comparability analysis by the Assessing Officer (AO) and Transfer Pricing Officer (TPO). The TPO conducted a fresh comparability analysis using additional filters and non-contemporaneous data.
- The TPO included companies like Infosys Limited, Persistent Systems Limited, and others, which the assessee argued were functionally different. The TPO excluded companies the assessee considered comparable.

2. Exclusion of Certain Comparables:
- The Tribunal excluded Infosys Limited, Persistent Systems Limited, Thirdware Solutions Limited, Mindtree Limited, Larsen & Toubro Infotech Limited, and Cigniti Technologies Ltd. from the final list of comparables for the software development services segment due to functional dissimilarity and other reasons.
- For the marketing and sales support services segment, I Media Corp Limited, Irunway India Pvt. Ltd., and Killick Agencies & Marketing Limited were excluded for reasons such as extraordinary events, functional dissimilarity, and significant related party transactions.

3. Inclusion of Certain Comparables:
- The Tribunal remanded the inclusion of I2T2 India Ltd., Kireeti Soft Technologies Ltd., Exiliant Technologies Pvt. Ltd., Celstream Technologies Ltd., and Evoke Technologies Ltd. for the software development services segment to the AO/TPO for verification.
- For the marketing and sales support services segment, Concept Public Relation India Ltd. and MCI Management India Ltd. were also remanded to the AO/TPO for reconsideration.

Grounds for Imputation of Notional Interest on Outstanding Receivables:

1. Independent International Transaction:
- The TPO considered overdue receivables from Associated Enterprises (AEs) as a separate international transaction under Section 92B of the Act and computed interest using LIBOR + 300 basis points.
- The Tribunal noted that the working capital adjustment should subsume the receivables. Referring to the Special Bench decision in Instrumentation Corpn. Ltd. and the Delhi High Court's decision in Orange Business Services India Solutions (P.) Ltd., the Tribunal set aside the issue and remitted it to the AO/TPO for fresh consideration.

Disallowance under Section 40(a)(ia) of the Act:

1. Verification of TDS Deduction:
- The AO disallowed Rs. 24,586,946 under Section 40(a)(ia) for non-deduction of TDS on certain expenses.
- The assessee claimed that TDS was deducted and deposited with the government. The Tribunal remanded the issue to the AO for verification of the TDS deduction and deposit.

Conclusion:

- The Tribunal directed the AO/TPO to exclude certain comparables and reconsider others based on functional similarity and compliance with filters.
- The issue of notional interest on outstanding receivables was remanded for fresh consideration, taking into account the working capital adjustment.
- The disallowance under Section 40(a)(ia) was remanded for verification of TDS deduction and deposit.