2016 (8) TMI 1582 - AT - Income Tax

Appeal allowed with directions on benchmarking and comparables in tax dispute.

The appeal was partly allowed, with directions given regarding correct benchmarking of international transactions and exclusion of certain comparables. ... TP Adjustment - Comparable selection - international transaction pertaining to provision of software development services undertaken by the assessee with its AE - HELD THAT:- Companies functionally dissimilar with that of assessee need to be deselected. Depreciation on UPS - treating it as ‘Plant and Machinery’ eligible for 15% rate of deprecation as against the claim of 60% made by the assessee on the ground that, the same has to be treated as part of the computer - HELD THAT:- Before us, nothing has been brought on record to the on the fate of such a finding given by the DRP in the AY 2009-10. Once in the earlier year, depreciation has been allowed @ 15% not 60%, then no different stand can be taken in this year, because depreciation has to be allowed on WDV. Accordingly, ground as taken by the assessee is treated as dismissed. Issues Involved:1. Jurisdiction of Transfer Pricing proceedings.2. Transfer Pricing Adjustment for software development services.3. Rejection and selection of comparables by AO/DRP/TPO.4. Methodology for benchmarking international transactions.5. Depreciation disallowance on UPS/batteries.6. Levy of interest under Section 234B.7. Initiation of penalty proceedings under Section 271(1)(c).Detailed Analysis:Jurisdiction of Transfer Pricing Proceedings:The assessee challenged the jurisdiction of the Transfer Pricing proceedings initiated by the AO under Section 92CA(1) of the Act, arguing that they were without jurisdiction and ought to be quashed. However, the judgment does not provide a detailed analysis or ruling on this specific ground.Transfer Pricing Adjustment for Software Development Services:The main issue revolved around the Transfer Pricing Adjustment of Rs. 95,25,556/- related to the international transaction of software development services between the assessee and its AE, V2 Solutions Inc. The AO determined the taxable income of the assessee at INR 2,07,01,300 as against the declared income of INR 1,11,27,160. The assessee's benchmarking using the Cost Plus Method (CPM) was rejected by the TPO, who instead adopted the Transactional Net Margin Method (TNMM).Rejection and Selection of Comparables by AO/DRP/TPO:The TPO rejected the external CPM analysis and the external TNMM analysis conducted by the assessee. The TPO conducted an independent search and identified 22 comparables, which was later reduced to 17 by the DRP. The assessee contested the inclusion of certain comparables, particularly Persistent Systems Ltd., Sonata Software Ltd., Vishwa Vikas Services Ltd., and Elnet Technologies Ltd. The Tribunal ultimately directed the exclusion of Elnet Technologies Ltd. from the comparability list due to functional dissimilarities.Methodology for Benchmarking International Transactions:The Tribunal upheld the use of TNMM as the Most Appropriate Method (MAM) for benchmarking the international transaction. The TPO's selection of comparables was scrutinized, and the Tribunal directed the AO to verify the correct operating profits for Kals Information Systems Ltd. and Kerala Ayurveda Ltd., and to adopt the correct margins for benchmarking.Depreciation Disallowance on UPS/Batteries:The assessee challenged the disallowance of Rs. 48,584/- on UPS, which was treated as 'Plant and Machinery' eligible for 15% depreciation instead of 60% as claimed. The Tribunal upheld the DRP's decision, following the precedent set in the previous assessment year, and dismissed this ground.Levy of Interest under Section 234B:The judgment does not provide a detailed discussion on the levy of interest under Section 234B, implying that this ground was not a focal point of contention.Initiation of Penalty Proceedings under Section 271(1)(c):Similarly, the initiation of penalty proceedings under Section 271(1)(c) was mentioned as a ground but was not elaborated upon in the judgment.Conclusion:The appeal was partly allowed, with significant directions given regarding the correct benchmarking of international transactions and the exclusion of certain comparables. The Tribunal directed the AO to verify and adopt the correct operating profits for specific comparables and to exclude Elnet Technologies Ltd. from the comparability list. The depreciation claim on UPS was dismissed, adhering to the previous year's decision. The judgment emphasized the importance of functional similarity in selecting comparables and upheld the use of TNMM for benchmarking.