2021 (11) TMI 1150 - AT - Income Tax

Tribunal directs ALP computation for Software Development services, emphasizing risk adjustments and working capital.

M/s. Capco Technologies Private Limited Versus The Deputy Commissioner of Income Tax, Circle -2 (1) (1), Bengaluru.

M/s. Capco Technologies Private Limited Versus The Deputy Commissioner of Income Tax, Circle -2 (1) (1), Bengaluru. - TMI Issues Involved:1. Choice of comparable companies for determining the Arm's Length Price (ALP).2. Non-acceptance of certain companies as comparable by the assessee.3. Non-grant of working capital adjustment.4. Re-computation of profit margins of specific companies.5. Risk adjustment in computing ALP.Detailed Analysis:1. Choice of Comparable Companies:The primary issue was the determination of the ALP for the international transaction of rendering Software Development (SWD) services by the assessee to its Associated Enterprises (AEs). The assessee used the Transaction Net Margin Method (TNMM) with Operating Profit/Operating Cost (OP/OC) as the Profit Level Indicator (PLI). The Transfer Pricing Officer (TPO) accepted TNMM but included additional companies in the comparable set, resulting in a higher PLI of 24.83%. The assessee contested the inclusion of certain high-turnover companies, arguing that high turnover affects profitability. The Tribunal, referencing multiple decisions, concluded that companies with turnover exceeding Rs.200 Crores should be excluded from the comparable set.2. Non-Acceptance of Certain Companies as Comparable:The assessee sought inclusion of certain companies such as Sasken Communication Technologies Ltd., Sagarsoft (India) Ltd., Akshay Software Technologies Ltd., and Evoke Technologies Ltd. The Tribunal excluded Sasken Communication Technologies Ltd. due to its high turnover. For Sagarsoft (India) Ltd., the Tribunal remanded the issue to the TPO/AO for fresh consideration. Similarly, the inclusion of Akshay Software Technologies Ltd. and Evoke Technologies Ltd. was remanded to the TPO/AO for fresh consideration, aligning with previous Tribunal decisions.3. Non-Grant of Working Capital Adjustment:The Tribunal addressed the non-grant of working capital adjustment, referencing the OECD Transfer Pricing Guidelines and previous Tribunal decisions. It emphasized that working capital adjustments are necessary to account for differences in the time value of money between the tested party and comparables. The Tribunal directed the TPO/AO to re-examine the issue, ensuring reasonable adjustments to bring both the comparable and test party on the same footing.4. Re-Computing Profit Margins:The assessee raised concerns about the computation of margins for Kals Information Systems Pvt. Ltd. and CG Vak Software and Exports Ltd., particularly regarding the treatment of foreign exchange gains/losses. The Tribunal upheld the DRP's decision, which followed the ITAT Bangalore Bench's ruling in Sap Labs India Pvt. Ltd., considering foreign exchange fluctuations related to business as operating in nature.5. Risk Adjustment in Computing ALP:The assessee argued for a risk adjustment, citing differences in risk levels between the assessee and comparable companies. The DRP rejected this plea due to the lack of quantification and reliable computation of risk adjustment. The Tribunal agreed with the DRP, finding no grounds to interfere with its conclusions.Conclusion:The Tribunal partly allowed the appeal, directing the TPO/AO to compute the ALP for the international transaction in accordance with the Tribunal's directions, after affording the assessee an opportunity to be heard. The decision emphasized the importance of appropriate comparability criteria, reasonable adjustments for working capital, and the need for reliable quantification in risk adjustments.