2016 (7) TMI 321 - AT - Income Tax

Assessee's Appeal Partly Allowed in Transfer Pricing Case

M/s. Lason India Pvt. Ltd. Versus Joint Commissioner of Income Tax, Company Range-II, Chennai

The appeal by the assessee was partly allowed in a Transfer Pricing case. The Tribunal upheld the inclusion of 'pass through costs' in operating income, ... Transfer price adjustment - payment of subsidiaries - Pass through cost consideration for arriving at operative profit or operating profit margin of the assessee - Held that:- As it is an admitted fact that the assessee itself included the pass through cost in its Profit and Loss Account. It is not the case of assessee that it is charged only mark up receivable from A.E in its P&L A/c. It is also admitted fact that assessee raised bills upon its A.E as payment from its A.E and received the payments from its A.Es. It is also brought on record that for the work got done by the assessee from its subsidiary and other independent units, the bills have been raised by these entities on the assessee and the assessee has made the payments to them on its own accounts and not on behalf of the A.Es. Thus, the payments to the subsidiary and other independent units by the assessee cannot be treated as pass through cost as it is not the payment from A.E to subsidiary of the assessee. Being so, the AO is justified in considering the pass through cost also for arriving at the operative cost/operating cost and the decision relied upon by the ld.A.R cited above have no application. - Decided against assessee. Suitable adjustments to account for differences in the risk profile of the assessee and its comparables - Held that:- We direct the TPO to allow risk adjustment at 1% as decided in the case of M/s.HELLOSOFT INDIA (P.) LTD. Vs. DCIT. [2014 (4) TMI 72 - ITAT HYDERABAD ] Carry forward of current year unabsorbed depreciation - Held that:- It is held by the Hon’ble Karnataka High Court in the case of CIT Vs. Himatsingka Seide [2006 (8) TMI 125 - KARNATAKA High Court] held that brought forward depreciation had to be adjusted against the profit of the EOU before computing exemption allowable u/s.10B of the Act Issues Involved:1. Rejection of the assessee’s Transfer Pricing (TP) Study and adjustment of Rs. 21,60,43,705/-.2. Inclusion of 'pass through cost' in operating income and expenditure.3. Selection of comparables for Transfer Pricing analysis.4. Adjustments for differences in the risk profile of the assessee and its comparables.5. Eligibility to carry forward current year unabsorbed depreciation.Detailed Analysis:1. Rejection of the assessee’s Transfer Pricing (TP) Study and adjustment of Rs. 21,60,43,705/-:The assessee's appeal against the adjustment made by the Transfer Pricing Officer (TPO) was dismissed as the ground was deemed too general and did not require adjudication.2. Inclusion of 'pass through cost' in operating income and expenditure:The assessee argued that the 'pass through cost' or data conversion charges, which represented outsourced data entry work, should not be included in the operating income and expenditure. The TPO included these costs in the profit and loss account, observing that the assessee charged a markup on these costs. The Dispute Resolution Panel (DRP) upheld this decision, stating that the payments to the subsidiary and other independent units could not be categorized as pass-through costs, as the assessee was not merely acting as a conduit. The Tribunal agreed with the TPO and DRP, citing that the assessee included these costs in its financials and raised bills upon its associated enterprises (AEs), thus justifying their inclusion in the operating costs.3. Selection of comparables for Transfer Pricing analysis:The assessee contested the inclusion of certain comparables, arguing functional differences and extraordinary events. The Tribunal analyzed each comparable as follows:- Cosmic Global Ltd.: The Tribunal found Cosmic Global Ltd. comparable, noting that it is engaged in ITES, similar to the assessee, and there were no financial influences to suggest otherwise.- E4e-Healthcare Business Services Ltd.: The Tribunal upheld the inclusion of this company, rejecting the assessee's argument of higher value-added services and lack of employee cost details.- Accentia Technologies Ltd.: The Tribunal excluded this company due to its acquisition of M/s. Oak Technologies Inc. during the assessment year, which constituted an extraordinary event affecting profitability.- Micro Genetics Services Ltd.: The Tribunal included this company, rejecting the assessee's argument of higher value-added services.- Allsec Technologies Ltd.: The Tribunal excluded this company due to its persistent losses, aligning with the principle that loss-making companies cannot be compared with profit-making entities.4. Adjustments for differences in the risk profile of the assessee and its comparables:The assessee argued for risk adjustments due to differences in risk profiles. The Tribunal directed the TPO to allow a 1% risk adjustment, referencing the decision in the case of M/s. Hellosoft India (P.) Ltd. Vs. DCIT, which acknowledged the captive service provider status of the assessee and the associated risk borne by the AE.5. Eligibility to carry forward current year unabsorbed depreciation:The assessee contended that the unabsorbed depreciation should be carried forward. The Tribunal dismissed this ground, citing the Supreme Court decision in the case of Himatsingka Seide, which held that brought forward depreciation must be adjusted against the profit of the Export Oriented Unit (EOU) before computing exemption under section 10B of the Act.Conclusion:The appeal of the assessee was partly allowed, with specific directions regarding the inclusion/exclusion of certain comparables and the allowance of a 1% risk adjustment. Other grounds, including the inclusion of pass-through costs and the eligibility to carry forward unabsorbed depreciation, were dismissed.