2019 (6) TMI 1117 - AT - Income Tax

ITAT includes Scal Services & Isgec Coverma in comparables for ALP determination

ACIT, Circle-1 (1), Gurgaon. Versus M/s Comverse Network Systems India Pvt. Ltd. And (Vice-Versa)

ACIT, Circle-1 (1), Gurgaon. Versus M/s Comverse Network Systems India Pvt. Ltd. And (Vice-Versa) - TMI Issues Involved:1. Rejection of comparables by the CIT (A) for determining Arm's Length Price (ALP).2. Deletion of disallowance of club expenses by the CIT (A).3. Admission of additional evidence by the CIT (A) without calling for a remand report from the AO.4. Treatment of provision for gratuity and provision for leave encashment as ascertained liabilities for book profit calculation under section 115JB.Detailed Analysis:1. Rejection of Comparables by the CIT (A) for Determining ALP:The primary issue was whether the CIT (A) erred in rejecting five out of six comparables selected by the TPO for determining the ALP. The assessee had initially selected four comparables, but the TPO replaced them with seven new comparables based on the previous year's study. The CIT (A) excluded five of these comparables, leading to the department's appeal.- Hindustan Housing Co. Ltd.: The CIT (A) rejected this company as a comparable because it was primarily engaged in providing air conditioning, lift, and intercom services, which were not functionally comparable to the assessee's business of providing pre-sales and post-sales support services. Additionally, the company's Related Party Transactions constituted 38.86% of its operating revenue, failing the Related Party Transaction filter.- Choksi Laboratories Ltd.: This company was excluded as it was a commercial testing and analysis laboratory, which was not functionally comparable to the assessee's service-oriented business. It also had a high proportion of testing instruments, indicating capital-intensive operations.- Vimta Labs Ltd.: This company was engaged in multi-disciplinary contract research and testing services, which were not comparable to the assessee's services. It had significant expenditure on testing and analysis and was more capital intensive.- Scal Services Ltd. and Isgec Coverma Ltd.: The assessee had no objection to including these two companies in the final set of comparables.2. Deletion of Disallowance of Club Expenses by the CIT (A):The CIT (A) deleted the disallowance of club expenses made by the AO, who had disallowed 50% of the expenditure on the grounds of potential personal use. The CIT (A) observed that the AO had made the disallowance on an ad hoc basis without any factual basis. The ITAT upheld the CIT (A)'s decision, referencing the Bombay High Court's ruling in C.I.T. vs. Lubrizol India Ltd., which treated club membership fees as revenue expenditure.3. Admission of Additional Evidence by the CIT (A) without Calling for a Remand Report from the AO:The department contended that the CIT (A) erred by admitting additional evidence regarding the approval of the assessee's gratuity fund without calling for a remand report. The ITAT found that the CIT (A) had not admitted any new evidence but had considered the approval letter of the gratuity fund, which was a matter of record. Therefore, the ITAT found no infirmity in the CIT (A)'s action.4. Treatment of Provision for Gratuity and Provision for Leave Encashment as Ascertained Liabilities for Book Profit Calculation under Section 115JB:The department challenged the CIT (A)'s treatment of provisions for gratuity and leave encashment as ascertained liabilities. The ITAT noted that the provision for gratuity was based on actual payment, and the provision for leave encashment was based on actuarial valuation. The ITAT referenced the Bombay High Court's judgment in C.I.T. vs. Echjay Forgings (P) Ltd., which held that such provisions should be excluded from net profit for computing book profit under section 115JB. Therefore, the ITAT upheld the CIT (A)'s decision.Conclusion:The ITAT partly allowed the revenue's appeal by including Scal Services Ltd. and Isgec Coverma Ltd. in the final set of comparables and dismissed the other grounds of appeal. The assessee's Cross Objection was dismissed as it was not pressed. The final result was that the revenue's appeal was partly allowed, and the assessee's C.O. was dismissed.