Tribunal dismisses Revenue appeal, allows part of assessee's appeal, remits Transfer Pricing adjustment issue for reconsideration.

The Asst. Commissioner of Income Tax, Circle-14, Pune Versus M/s. MSC Software Corporation of India Pvt. Ltd.

The Asst. Commissioner of Income Tax, Circle-14, Pune Versus M/s. MSC Software Corporation of India Pvt. Ltd. - TMI Issues Involved:
1. Exclusion of comparables by the Dispute Resolution Panel (DRP).
2. Acceptance of comparables selected by the assessee.
3. Transfer pricing adjustment for management fees, meeting expenses, and communication costs.
4. Initiation of penalty proceedings under section 271(1)(c) of the Income-tax Act.
5. Levy of interest under section 234B of the Income-tax Act.

Issue-wise Detailed Analysis:

1. Exclusion of Comparables by the DRP:
The Revenue contended that the DRP erred in excluding certain comparables based on higher turnover and higher assets without analyzing the Functions, Assets, and Risks (FAR) of the company. The Tribunal upheld the DRP’s direction to apply a turnover filter of Rs. 1 crore to Rs. 300 crores, thereby excluding companies like Mindtree Ltd., Infosys Technology Ltd., Larsen & Turbo Infotech Ltd., Persistent Systems Ltd., and Sasken Communication Tech Ltd. This decision was based on the precedent that turnover filters are a valid criterion for selecting comparables.

2. Acceptance of Comparables Selected by the Assessee:
The Revenue challenged the inclusion of new comparables selected by the assessee during the Transfer Pricing (TP) proceedings. The Tribunal referred to the case of M/s. Vishay Components India Pvt. Ltd. Vs. DCIT, which allowed the inclusion of functionally comparable companies identified during TP proceedings, provided they meet all other filters. Consequently, the Tribunal upheld the DRP’s direction to include Maveric Systems Ltd., Silverline Technologies Ltd., and Evoke Technologies Pvt. Ltd. as comparables.

3. Transfer Pricing Adjustment for Management Fees, Meeting Expenses, and Communication Costs:
The assessee challenged the TP adjustment of Rs. 2,00,61,662 made by disallowing expenses towards management fees, meeting expenses, and communication costs. The Tribunal noted that similar adjustments were made in previous assessment years (2008-09 and 2009-10) and remitted the issue back to the TPO/Assessing Officer to decide afresh. The Tribunal directed the TPO/Assessing Officer to consider the assessee’s plea that these costs were recovered on a cost-plus markup basis and to adjudicate the issue in accordance with the law.

4. Initiation of Penalty Proceedings under Section 271(1)(c):
The Tribunal dismissed the assessee’s challenge against the initiation of penalty proceedings under section 271(1)(c) as premature, noting that the issue of penalty would be considered separately after the final determination of the TP adjustments.

5. Levy of Interest under Section 234B:
The Tribunal dismissed the assessee’s ground against the levy of interest under section 234B, stating that it is consequential to the final determination of the total income after TP adjustments. The Tribunal noted that the shortfall in advance tax resulted from unanticipated additions to total income.

Conclusion:
The appeal of the Revenue was dismissed, and the appeal of the assessee was partly allowed. The Tribunal remitted the issue of TP adjustment for management fees, meeting expenses, and communication costs back to the TPO/Assessing Officer for reconsideration. The initiation of penalty proceedings and the levy of interest were dismissed as premature and consequential, respectively. The Tribunal upheld the DRP’s application of turnover filters and inclusion of new comparables identified during TP proceedings.