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of <h1>Appeal partly allowed with directions on comparables, interest addition upheld, premature penalty challenge rejected.</h1> <h3>M/s. FIS Solutions (India) Private Limited. Versus The Deputy Commissioner of Income Tax, Circle 1 (2), Pune.</h3> M/s. FIS Solutions (India) Private Limited. Versus The Deputy Commissioner of Income Tax, Circle 1 (2), Pune. - [2020] 79 ITR (Trib) 656 (ITAT [Pune]) Issues Involved:1. Transfer Pricing Adjustment2. Exclusion of Comparable Companies3. Inclusion of Comparable Companies4. Working Capital Adjustment5. Disallowances/Additions Other than Transfer Pricing Adjustment6. Initiation of Penalty ProceedingsDetailed Analysis:1. Transfer Pricing Adjustment:The appeal by the assessee pertains to 'Transfer Pricing Adjustment' and 'Corporate Tax.' The primary contention is the exclusion of certain comparable companies from the final list of comparables for the software development service segment.2. Exclusion of Comparable Companies:(A) Persistent Systems Limited:The TPO included Persistent Systems Limited based on turnover filters and segment reporting. However, the Tribunal, referencing previous cases like Symantec Software India Private Limited vs. DCIT, found Persistent Systems Limited functionally different due to its engagement in IT services and software products without segmental information. The Tribunal directed the AO/TPO to exclude Persistent Systems Limited from the final list of comparables.(B) Thirdware Solutions Limited:The TPO included Thirdware Solutions Limited, but the Tribunal, citing cases like Symantec Software India Private Limited vs. DCIT, found it functionally dissimilar due to its engagement in software development implementation, support services, and software products. The Tribunal directed the AO/TPO to exclude Thirdware Solutions Limited from the final list of comparables.(C) Cigniti Technologies Limited:The TPO included Cigniti Technologies Limited, but the Tribunal, referencing cases like Avaya India (P) Ltd. vs. ACIT, found it engaged primarily in software testing services and involved in an extraordinary event of acquisition. The Tribunal directed the AO/TPO to exclude Cigniti Technologies Limited from the final list of comparables.(D) Mindtree Limited:The TPO included Mindtree Limited, but the Tribunal, referencing cases like M/s. Alcatel-Lucent India Ltd. vs. Addl. CIT, found it engaged in diverse business activities and research and development, making it functionally different. The Tribunal directed the AO/TPO to exclude Mindtree Limited from the final list of comparables.3. Inclusion of Comparable Companies:(E) Akshay Software Technologies Ltd:The TPO excluded Akshay Software Technologies Ltd., citing its involvement in professional services akin to staffing rather than software services. The Tribunal upheld the exclusion, agreeing with the DRP's findings that the company's revenue was primarily from professional services.4. Working Capital Adjustment:The assessee argued that working capital adjustment should always be positive. The Tribunal, referencing cases like Adaptec (India) P Ltd. vs. ACIT, remitted the issue to the TPO/AO for reconsideration, emphasizing the need to align with judicial precedents and the specific facts of the case.5. Disallowances/Additions Other than Transfer Pricing Adjustment:The assessee contested the addition of INR 25,84,042 as interest on income tax refund. The Tribunal, citing Avada Trading Co. (P.) Ltd. vs Assistant Commissioner Of Income Tax, held that interest on refund is assessable in the year it is granted, even if adjusted against prior tax liabilities. The Tribunal dismissed this ground of appeal.6. Initiation of Penalty Proceedings:The assessee challenged the initiation of penalty proceedings under section 271(1)(c) of the Act. The Tribunal deemed this challenge premature and rejected it.Conclusion:The appeal was partly allowed for statistical purposes, with specific directions for the exclusion and inclusion of certain comparable companies and reconsideration of the working capital adjustment. The Tribunal upheld the addition of interest on the income tax refund and rejected the premature challenge to penalty proceedings.
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