2022 (6) TMI 1334 - AT - Income Tax

Tribunal Partly Allows Appeal, Remands Issues for Review, Deletes Additions; Upholds Turnover and RPT Filters.

The Tribunal partly allowed the appeal, remanding certain issues back to the TPO/AO for further consideration and directing the deletion of specific ... TP Adjustment - Comparabaility - HELD THAT:- Companies functionally dissimilar with that of assessee functional profile need to be deselected from final list - RPT filter has to be applied adopting the threshold limit of 15%. Disallowing the import of equipment under the surmise that there were no supporting documents to prove its genuinity - AO treated the value of this asset as a benefit or perquisite by the assessee in the course of its business brought to tax the aforesaid sum under section 28(iv) - DRP rejected the claim of the assessee on the ground that no evidence was placed on record to show that the assessee returned back the equipment - HELD THAT:- We are of the view that this approach of the DRP is incorrect because the question of return of the equipment will arise only when there is evidence to show that the assessee received the benefit in the form of benefit or perquisite from the RDT. Revenue cannot place negative onus on assessee and seek to make impugned addition. The impugned addition is therefore directed to be deleted. Addition for non production of import invoices - HELD THAT:- From a perusal of the given table of import information for the balance assessable value along with the purpose for which these have been imported and the purpose of import as given in the last column of the above table, it is clear that the equipments in question were received from respective suppliers for testing and functionality of IT services provided by the Assessee to them. The issue therefore is identical to ground No.15 and for the reasons stated while deciding those grounds, we are of the view that the addition made cannot be sustained and the same is directed to be deleted. Issues Involved:1. Determination of Arms' Length Price (ALP) for Software Development Services (SWD) and Information Enabled Technology Services (ITeS).2. Inclusion and exclusion of comparable companies.3. Application of turnover filter.4. Related Party Transaction (RPT) filter.5. Adjustment for delayed realization of outstanding from Associated Enterprises (AE).6. Adjustment under section 28(1)(iv).7. Adjustment for import of equipment without supporting documents.Detailed Analysis:1. Determination of Arms' Length Price (ALP) for SWD and ITeS:The primary issue in this appeal is the determination of ALP for the international transaction of rendering SWD services and ITeS to the AE. The assessee used the Transaction Net Margin Method (TNMM) with Operating Profit/Operating Cost (OP/OC) as the Profit Level Indicator (PLI). The TPO accepted TNMM as the Most Appropriate Method (MAM) but reworked the PLI at 24.83%, leading to an addition of Rs.5,41,86,937/- to the total income of the assessee for the SWD segment.2. Inclusion and Exclusion of Comparable Companies:The assessee contested the inclusion of certain companies by the TPO and the exclusion of others. The Tribunal considered the functional comparability and availability of segmental information for companies like Akshay Software Technologies Ltd., Sagarsoft India Ltd., Evoke Technologies Pvt. Ltd., and Sankhya Infotech Ltd., remanding some issues back to the TPO for fresh consideration.3. Application of Turnover Filter:The Tribunal upheld the application of the turnover filter, excluding companies with a turnover of more than Rs.200 Crores from the list of comparable companies. This decision was based on the principle that high turnover companies are not comparable to the assessee, whose turnover was significantly lower.4. Related Party Transaction (RPT) Filter:The Tribunal applied the RPT filter with a threshold limit of 15%, following the decision of the Hon'ble Karnataka High Court. This led to the exclusion of R.S. Software (India) Ltd., whose related party transactions exceeded this limit.5. Adjustment for Delayed Realization of Outstanding from AE:The Tribunal remanded the issue of delayed realization of outstanding from AE to the TPO/AO for fresh consideration, allowing the assessee to adopt the internal CUP method for benchmarking this international transaction.6. Adjustment under Section 28(1)(iv):The AO had added Rs.3,59,722/- under section 28(1)(iv) for equipment received from a customer for testing purposes. The Tribunal directed the deletion of this addition, stating that the equipment was not a benefit or perquisite as the assessee had no right over it.7. Adjustment for Import of Equipment without Supporting Documents:The AO had added Rs.3,76,735/- for non-production of import invoices. The Tribunal directed the deletion of this addition, accepting the assessee's explanation that the equipment was received for testing and not recorded in the books of accounts.Conclusion:The Tribunal partly allowed the appeal, remanding certain issues back to the TPO/AO for fresh consideration and directing the deletion of specific additions made by the AO. The Tribunal's decisions were based on principles of comparability, functional similarity, and adherence to established filters for turnover and related party transactions.