2022 (12) TMI 998 - AT - Income Tax

Tribunal adjusts comparables list, modifies interest rate on receivables

The Tribunal partially allowed the appeal, directing the exclusion of certain companies from the list of comparables and remanding the inclusion of others ... TP adjustment - comparable selection - functional Dissimilarity - HELD THAT:- When an extra ordinary event takes place by way of amalgamation, then that company cannot be considered as a comparable. Companies functionally dissimilar with that of assessee and with huge turnover need to be deselected from final list. Interest on outstanding receivables - as submitted DRP had bench marked the international transaction by taking the Short Term deposit rate of SBI - HELD THAT:- DRP had restricted the charging of interest for the delayed period after allowing the reasonable period of 30 days. Accordingly, the Assessing Officer / TPO was directed to recompute the interest based on delay period. We do not find any error in the said finding recorded by the DRP. Rate of interest, the assessee had raised the alternative argument of applying the Libor plus as the outstanding amount is receivable in foreign currency - In the present case, the receivable from A.E. was Rs.1,47,99,409/-, which is almost 1/8th of the total turnover of the assessee. In view of the above and respectfully following the decision of Kusum Health Care [2017 (4) TMI 1254 - DELHI HIGH COURT] we restrict the levy of interest on outstanding receivables to Libor plus 250 points. The other arguments raised by the Revenue supporting the charging of bank rate interest on the short term deposit is left open to be decided in appropriate case. Accordingly, these grounds are partly allowed. Issues Involved:1. Incorrect Selection of Comparable Companies2. Incorrect Rejection of Comparable Companies Selected by the Appellant3. Interest on Outstanding ReceivablesDetailed Analysis:1. Incorrect Selection of Comparable Companies:a. L&T Infotech Ltd.:The assessee argued that L&T Infotech Ltd. should be excluded due to brand value, extraordinary events like amalgamation, and functional differences. The Tribunal found that due to the amalgamation of ISRC and GDA Technologies Limited, the profitability of L&T was affected, making it incomparable. The Tribunal directed the AO/TPO to exclude L&T Infotech Ltd. from the list of comparables.b. Tata Elxsi Ltd.:The assessee contended that Tata Elxsi Ltd. is functionally different, involved in high-end KPO services, and has incomplete segmental details. The Tribunal noted that Tata Elxsi Ltd. is engaged in diversified activities and directed the AO/TPO to exclude it from the list of comparables.c. Persistent Systems Ltd.:The assessee argued that Persistent Systems Ltd. is a product development company with significant revenue from products and lacks segmental details. The Tribunal found that Persistent Systems Ltd. is functionally different and engaged in diversified activities, directing the AO/TPO to exclude it from the list of comparables.d. Infosys Ltd.:The assessee submitted that Infosys Ltd. has a huge turnover, is functionally different, and engaged in diversified activities. The Tribunal observed that Infosys Ltd. is not comparable due to its size, scale of operations, and diversified activities. The Tribunal directed the AO/TPO to exclude Infosys Ltd. from the list of comparables.e. Thirdware Solutions Ltd.:The assessee argued that Thirdware Solutions Ltd. is functionally different, engaged in diversified activities, and lacks segmental details. The Tribunal found that Thirdware Solutions Ltd. is not comparable due to its diversified activities and directed the AO/TPO to exclude it from the list of comparables.2. Incorrect Rejection of Comparable Companies Selected by the Appellant:a. Evoke Technologies Private Ltd.:The assessee requested the inclusion of Evoke Technologies Private Ltd., arguing it is functionally comparable and was accepted in earlier years. The Tribunal remanded the inclusion of Evoke Technologies to the TPO to examine its functional similarity based on Rule 10B of the Income Tax Rules.b. Sagarsoft (India) Limited:The assessee requested the inclusion of Sagarsoft (India) Limited, arguing it is functionally comparable and passed all filters of the Transfer Pricing Officer. The Tribunal remanded the inclusion of Sagarsoft (India) Limited to the TPO to examine its functional similarity based on Rule 10B of the Income Tax Rules.3. Interest on Outstanding Receivables:The assessee contested the interest computed on outstanding receivables, arguing for the application of LIBOR Plus instead of the SBI Short Term deposit rate. The Tribunal upheld the DRP's decision to restrict the charging of interest for the delayed period after allowing a reasonable period of 30 days. The Tribunal directed the levy of interest on outstanding receivables to LIBOR plus 250 points, following the decision of the Hon'ble Delhi High Court in the case of Kusum Health Care.Conclusion:The Tribunal allowed the appeal partly for statistical purposes, directing the exclusion of certain companies from the list of comparables and remanding the inclusion of others for further examination. The Tribunal also modified the interest rate on outstanding receivables to LIBOR plus 250 points.