2023 (4) TMI 223 - AT - Income Tax

Appeal partly allowed with fresh directions for correct comparables selection and working capital adjustments.

IG Infotech (India) Pvt. Ltd. Versus ACIT Circle-3 (1) (1) Bengaluru

The appeal was partly allowed for statistical purposes, with specific directions to the AO/TPO for fresh consideration and correction of errors. The ... TP Adjustment - comparable selection - HELD THAT:- We direct the AO/TPO to exclude the comparables on the basis of high turnover. Since the assessee’s turnover is only Rs.32.81 crores on the basis of turnover filter, selected comparables to be excluded. This ground of appeal is allowed. Order u/s 92CA(3) suffers from several computational errors which has led to incorrect computation of adjustment made in respect of the subject transaction - HELD THAT:- At the time of hearing, the Ld. A.R. submitted that there are various computational errors which lead to incorrect computation of ALP and this may be corrected. We acceded to the request of the Ld. A.R. Accordingly, any computational error committed by AO/TPO to be corrected. Accordingly, the issue remitted to AO/TPO to correct the mistake in computation of adjustments made in respect of international transactions while determining the ALP. Non-granting of working capital adjustment - HELD THAT:- We inclined to remit the issue to the file of AO/TPO to determine the correct working capital adjustment. Issues Involved:1. Addition to total income in respect of international transaction pertaining to provision of software development services.2. Non-acceptance of economic analysis for determination of arm's length price (ALP).3. Use of 'persistent operating losses' to reject companies for benchmarking.4. Consideration of employee cost less than 25 percent of turnover as a comparability criterion.5. Consideration of export earnings less than 75 percent of sales as a comparability criterion.6. Selection of companies earning super normal profits as comparable.7. Exclusion and inclusion of certain companies in the final set of comparables.8. Computational errors in the order under section 92CA(3).9. Failure to make appropriate adjustments for differences in working capital.10. Failure to make suitable adjustments for differences in risk profile.11. Levying of consequential interest under section 234B.Detailed Analysis:Ground No. 7.1: Exclusion of Certain Companies from Final Set of ComparablesThe learned AO/TPO/DRP excluded Batchmaster Software, DCIS Dot Com Solutions India, and Evoke Technologies from the final set of comparables. The Tribunal referred to a previous case, M/s. Quicklogic Software (India) Pvt. Ltd., where these companies were directed to be reconsidered based on their annual reports. The Tribunal remitted the issue back to AO/TPO for fresh consideration.Ground No. 7.2: Inclusion of Certain Companies in the Final Set of ComparablesThe appellant sought the exclusion of eight comparables: L&T Infotech, Mindtree, R Systems, Persistent Systems, Tata Elxsi, Infosys Ltd., Nihilent, and Cybage Software. The Tribunal noted that these companies had high turnovers and were not similar in functions to the appellant, a captive service provider with a turnover of only Rs. 13 crores. The Tribunal directed the AO/TPO to exclude these comparables based on high turnover, following the principle that companies with high turnover should not be compared with those having significantly lower turnover.Ground No. 8: Computational ErrorsThe appellant argued that the order under section 92CA(3) contained several computational errors. The Tribunal agreed to the request for correction and remitted the issue to the AO/TPO to correct any computational mistakes in the adjustment of international transactions while determining the ALP.Ground No. 9: Working Capital AdjustmentThe appellant claimed that the AO/TPO/DRP failed to make appropriate adjustments for differences in working capital. The Tribunal referred to a previous case, Huawei Technologies India Pvt. Ltd., where it was held that working capital adjustments should be allowed. The Tribunal remitted the issue back to the AO/TPO to determine the correct working capital adjustment.Conclusion:The appeal was partly allowed for statistical purposes, with specific directions to the AO/TPO for fresh consideration and correction of errors. The Tribunal emphasized the need for proper inclusion and exclusion of comparables based on turnover and functional similarity, and the necessity of making appropriate working capital adjustments.