2019 (4) TMI 1517 - AT - Income Tax

Transfer Pricing Appeal Success: Functional Dissimilarities Excluded, Margin Accepted

The Tribunal partially allowed the appeal by directing the exclusion of specific companies from the final list of comparables due to functional ... TP Adjustment - exclusion & inclusion of comparable company - functional comparability - FAR Analysis Capgemeni Business Services (India) Ltd - functional comparability - HELD THAT:- Capgemeni Business Services (India) Ltd during the year, provided I.T. enabled assured services in finance and accounting to many Indian and Global clients and has widened the scope of services in supply chain, programme, technology and engineering services etc.,whereas the assessee is providing services in financial processes, annual and quarterly financial reports. Therefore, we are satisfied that both the companies are not into similar type of activities as Capgemeni Business Services (India) Ltd is also into more diversified activities such as Technology & Engineering services and therefore, the activities rendered by it are functionally different. Both the companies used brands of their holding companies and therefore, are on par with each other. However, due to functional dissimilarity, we direct the AO to exclude this company from the final list of comparables. Hartron Communications Ltd - income from BPO services is ₹ 17,99,52,212 which has been booked on the basis of Indian currency realized. At note 17, the revenue from operations is reported, we find that the export income has been reported at ₹ 17,99,52,211/-. Further, from the data published by the assessee, this year is an exceptional year of operation. The financial results of Hartron Communications Ltd cannot be considered for the preceding and succeeding financial years It can be seen that this year has been an exceptional year for the said company. Therefore, we are of the opinion that Hartron Communication Ltd cannot be considered as a comparable company to the assessee. In this view of the matter, without commenting on the other objections of the assessee, against this company, we direct the AO/TPO to exclude this company from the final list of comparables only for the ground of exceptional performance during the relevant year. Though the assessee has sought inclusion of Informed Technologies India Ltd, Jindal Intelicom Ltd, we find that by exclusion of the two companies in the above paragraphs, the assessee’s margin falls within + or -3% of the average margin of the comparables. Therefore, we do not venture to adjudicate on the inclusion of these two companies at this stage, as it would only result in an academic exercise. Issues Involved:1. Addition to total income concerning international transactions.2. Acceptance of economic analysis for determining Arm's Length Price (ALP).3. Use of multiple year data for transfer pricing documentation.4. Rejection and selection of comparable companies.5. Computational errors in the margin of comparable companies.6. Exclusion and inclusion of specific companies in the final set of comparables.7. Adjustments for differences in risk profiles.8. Initiation of penalty proceedings under section 271(1)(c).9. Levying of consequential interest under sections 234B and 234C.Detailed Analysis:1. Addition to Total Income:The primary issue was the addition of INR 251,061,407 to the total income of the assessee concerning the provision of IT-enabled services to its associated enterprise (AE). The assessee challenged the adjustments proposed by the Transfer Pricing Officer (TPO) and confirmed by the Dispute Resolution Panel (DRP).2. Acceptance of Economic Analysis:The assessee contended that the TPO and DRP erred in not accepting the economic analysis undertaken by the assessee for determining the ALP. The TPO rejected the assessee's TP document, citing defects in the method of search and selection of inappropriate comparables.3. Use of Multiple Year Data:The assessee argued against the TPO's determination of arm's length margins using data only from the Financial Year (FY) 2012-13, which was not available at the time of complying with Indian TP documentation requirements. The TPO did not accept the use of multiple year data as adopted by the assessee.4. Rejection and Selection of Comparable Companies:The TPO rejected certain comparable companies selected by the assessee based on criteria such as different accounting years and employee costs being less than 25% of the total cost. The TPO conducted an independent analysis and selected additional companies as comparables.5. Computational Errors:The assessee claimed that the TPO and DRP made computational errors in the margin of the comparable companies used for determining the arm's length margin.6. Exclusion and Inclusion of Specific Companies:The assessee contested the exclusion of Informed Technologies Limited and Jindal Intellicom Private Limited from the final set of comparables, and the inclusion of Hartron Communications Limited and Capgemini Business Services (India) Limited. The Tribunal found Capgemini to be functionally different due to its diversified high-end services and directed its exclusion. Similarly, Hartron was excluded due to its exceptional performance during the relevant year.7. Adjustments for Differences in Risk Profiles:The assessee argued that suitable adjustments were not made to account for differences in the risk profile of the comparable companies vis-a-vis the assessee.8. Initiation of Penalty Proceedings:The assessee objected to the initiation of penalty proceedings under section 271(1)(c) of the Act, which was initiated by the AO.9. Levying of Consequential Interest:The assessee also contested the levy of consequential interest under sections 234B and 234C of the Act by the AO.Conclusion:The Tribunal directed the exclusion of Capgemini Business Services (India) Ltd and Hartron Communications Ltd from the final list of comparables due to functional dissimilarities and exceptional performance, respectively. With these exclusions, the assessee's margin fell within the acceptable range of +/-3% of the average margin of the comparables, rendering further adjudication on the inclusion of other companies unnecessary. The appeal was partly allowed, and the order was pronounced on 24th April 2019.