TaxTMI 
TaxTMI 
2018 (10) TMI 1816
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.... with regard to non consideration of revised return of income filed by the assessee. The brief facts of this issue are that the assessee filed its original return of income for the Asst Year 2011-12 on 17.11.2011 declaring total income of Rs. 54,56,160/-. The revised return of income was filed on 29.11.2012 declaring total income of Rs. 53,14,323/-. Admittedly this revised return was filed within the time limit prescribed u/s 139(5) of the Act. The ld AO while completing the assessment ought to have taken note of the same and computed the total income of the assessee. Hence we direct the ld AO accordingly. The Ground Nos. 1 & 2 raised by the assessee are allowed. 3. The Grounds 3 to 5 raised by the assessee are general in nature and does not require any specific adjudication . DETERMINATION OF ARM'S LENGTH PRICE 4. The only issue to be decided in these cross appeals is with regard to inclusion and exclusion of certain comparables for the purpose of determining the Arm's Length Price (ALP) of international transactions entered into by the assessee with its Associated Enterprise (AE). 5. The brief facts of this issue are that the assessee is engaged in the business of ren....
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....nal transaction is as under:- Type Of Functions ASPL Anshinsoft Corp Business risk Limited Yes Product development Risk No Yes Service liability Risk Yes No Utilization risk Yes No Credit and collection risk Limited No Intellectual Property right risk No Yes Foreign exchange risk Yes No 5.3. The details of assets employed as on 31.3.2011 by assessee are as under:- Tangibie & Intengible Assets Amount (INR) Computer & Allied Equipment 4,031,308 Computer software 1,142,753 Office equipment and others 2,134,494 Furniture and fixtures 3,307,808 Motor car 34,156 Total 10,650,518 5.4. Based on the results of the functional, risk and asset analysis, the assessee concluded that it can be characterized as Software Service Provider bearing limited risks typically borne by captive service provider in IT industries. 5.5. For the international transaction under consideration, ASPL (i.e the assessee ) has been chosen as the tested party for the purposes of the Transfer Pricing Study due to the fact that it does not own any significant intangible and its profitabil....
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.... (Consolidated) NA NA 0.28% 0.28% 4 CG-VAK Software & Exports Limited (Segmental) 3.48% -12.31% 1.01% -2.45% 5 Goldstone Technologies -3.15% -2.46% -4.58% -3.52% 6 Helios & Matheson Limited Information Technology Limited 9.74% NA NA 9.74% 7 Larsen & Toubro Infotech Limited 15.84% 18.01% 15.22% 16.27% 8 LGS Global Limited 5.27% 14.95% 9.42% 9.52% 9 Maveric Systems Limited - 11.34% 12.65% 10.13% 0.85% 10 Mindtree Limited (Segmental) 9.17% 19.48% 4.58% 10.49% 11 Persistent Systems Limited 24.57% 28.92% 15.02% 22.64% 12 R S Software (India) Limited 15.91% 9.42% 10.63% 12.15% 13 R Systems International Limited(Segmental) 4.37% 15.49% 8.45% 9.34% 14 Sasken Communication Technologies Limited 26.24% 24.22% 13.77% 20.66% 15 Thinksoft Global Services Limited 0.60% 10.08% 17.48% 10.01% 16 Zylog Systems Limited 21.36% 14.47% 10.48% 15.56% Arithmetic Mean 7.73% 5.8. The assessee specifically stated ....
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.... functionally not comparable ; financial period of comparable was different with that of the assessee etc. 6.1. The various filters arrived by the ld TPO for evaluating the comparable companies are as under:- a) Rejecting companies having different financial year ending on whose data does not fall within 12 month period i.e 1.4.2010 to 31.3.2011 for comparability analysis ; b) Rejecting companies having turnover of less than Rs. 1 crore and more than Rs. 200 crores ; c) Rejecting companies having employee cost less than 20% of turnover ; d) Rejecting companies having related party transactions of more than 20% of sales ; e) Rejecting companies having service income less than 40% of the turnover. The TPO on his own identified certain comparables applying the aforesaid filters and arrived at the operating profit to operating cost of these companies and determined the arms length price of the international taxation as follows :- 6.2. The list of final comparables selected by the ld TPO, along with the margins is as follows : Sl. No. Name of the company PLI =OP/TC 1 8K Miles Software Services Ltd 41.77%  ....
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.... DRP held that certain comparables chosen by the ld TPO as well as the assessee needs to be included and excluded as under:- Inclusion of Comparables by ld DRP a. Akshay Software Technologies Limited b. Vibrant Digital Limited (formerly LGS Global Ltd) c. Acropetal Technologies Ltd d. E-Infochips Bangalore Limited e. Aurum Soft Systems Limited f. Sagarsoft (India) Limited g. Spry Resources India Private Limited h. Axis IT & T Ltd Exclusion of Comparables by ld DRP a. Ancent Software Technologies Limited b. CG-VAK Software & Exports Limited c. Goldstone Technologies Limited d. Helios & Matheson Information Technology Limited e. Larsen & Toubro Infotech Limited f. Mindtree Systems Limited g. Lucid Software Limited h. Sankhya Infotech Private Limited i. Prelude Sys India Limited j. 8K Miles Software Services Limited 7.1. The assessee submitted before the ld DRP that the ld TPO erred in computing profit margins of certain comparables . The ld DRP directed the ld TPO to verify the computational error if any....
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....n case by this tribunal for the Asst Year 2010-11 dated 4.10.2017 reported in (2017) 87 taxmann.com 169 (Kolkata Trib.) wherein it was held as under:- 15. As far as ground no. 5 is concerned, the admitted position of law is that multiple data cannot be used in the transfer pricing analysis as per the law as it stood at the relevant point of time in A.Y.2010-11. Rule 10B(4) of the Income Tax Rules, 1962 (Rules) provides that the data to be used in analysing the comparability of an uncontrolled transaction with an international transaction shall be the data relating to the financial year in which the international transaction has been entered into. This being the admitted position, we are of the view that there is no merit in ground no. 5 raised by the assessee and we hold that for the purpose of comparability, multiple year data i.e., the weighted average of three financial years of the comparable companies cannot be used in TP Analysis as per the laws that existed for AY 2010-11. The ld AR also fairly agreed that this ground is to be decided against the assessee. Accordingly, the Ground No. 6 raised by the assessee is dismissed. 9.1. The Ground No. 7 raised by the as....
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....e employee cost percentage of Acropetal is 11.51% of turnover (i.e less than 20% of turnover). The ld. AR has argued that the ld. TPO applied the incorrect operating margin of this comparable. The assessee pleaded that this comparable is functionally different and hence requires to be excluded . It was submitted before the ld. TPO that for the assessment year 2010-11 i.e. immediately preceding year, this comparable, even though was sought to be included in the show cause notice to the assessee , was later dropped by the ld. TPO himself from the list of comparables by applying the employee cost filter. This point was also brought to the notice of the ld. TPO by the assessee while filing its reply to the show cause notice before the ld. TPO. Even though before the ld. TPO, the assessee had stated that the employee cost was 15.91% of turnover of this comparable and that the same has been reduced to 11.51% of turnover before us, in any case, we find that the total employee cost is less than 20% of turnover in the case of this comparable, which remain undisputed before us. We find that the ld. DR vehemently opposed to various objections raised by the assessee with regard to different fu....
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....arable are left open and no opinion is given herein. Accordingly, ground no. 13 raised by the assessee is allowed. 10.3. E-Infochips Bangalore Limited We find that the ld TPO had included this company in the final list of comparables for computing the arm's length margin. We find that the inclusion of the said company was the subject matter of adjudication by this tribunal in assessee's own case for Asst Year 2010-11 in ITA No. 587/Kol/2015 dated 4.10.2017 wherein it was held as under:- 16. As far as ground no. 6 raised by the assessee is concerned, the same is with regard to the action of the TPO and the DRP in accepting E-Infochips Bangalore Limited and Inteq Software Limited as comparable companies with that of the assessee. As far as the aforesaid companies are concerned the facts are that admittedly the information regarding the financial statement of these two companies were not available in the public domain and the AO obtained the details about the financial results of these two companies by issuing notices u/s. 133(6) of the Act to these two companies. At the time of hearing the ld. Counsel for the assessee brought to our notice that E-Infochips Bangalore Li....
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....he company has been merged with its Holding Company-Infinite Computer Solutions (India) Ltd. during the financial year 201112. We are inclined to agree with the submissions of the Ld. AR that this Comparable Infinite Date Systems Pvt. Ltd. was created for purpose of transfer of business. Hence, the nature of services and business model of assessee company and comparable company are entirely different. Apart from this, we also find that there exist abnormal circumstances in the said comparable. During the last 3 years, variations in margins earned show an abnormal circumstances leading to huge fluctuations and supernormal profit, the margin earned by Infinite is 88.25% which is abnormally high. It was argued that such companies which are making more than twice the arithmetical mean margin as compared by the Ld. TPO should not be considered as comparable. The Ld. AR referred to page 591 of the Paper Book where the details of the fluctuation in the revenue, profit and margins has been provided. It is true that where company in which extraordinary events had taken place during the year like major acquisitions which had impact on profits of company, it could not be selected as comparabl....
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....n available on Accentia Technologies Ltd. to demonstrate that the said company is not diversified knowledge process outsourcing activities. It is seen there from that the said company is involved in Healthcare documentation as well as receivables, management services including installation and maintenance of all software, hardware and band width infrastructure required for the same, deployment of man power and service delivery in all these areas. It is also seen that it is engaged in legal process outsourcing. From Schedule-IV showing the fixed assets of the assessee, it is also seen that the said company owns goodwill/brand/IPRS (Intellectual Property Rights). From the notes to the accounts, it is also seen that a subsidiary of the company Asscent Infoserve Pvt. Ltd., has been amalgamated with the company consequent to which, assets and liabilities of the erstwhile company were transferred and vested in the company w.e.f. 1st April, 2008 and the scheme has been given effect to in the accounts of the year. Therefore, it is clear that there is an extraordinary even in the case of Accentia Technologies Ltd., during the relevant financial year particularly since the approval of amalga....
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.... the same is not functionally comparable as the said company was involved in the business of providing IT as well as IT Enabled Services and that segmental details of IT and ITES were not available. We find that the same situation continues for the year under consideration also which remains undisputed before us. Apart from this, we also find that the said comparable has related party transactions of 37.96% of operating revenue (171291331 / 451181724*100) . The evidences in this regard are enclosed in pages 1075 and 1082 of Paper Book Volume II. We find that the ld TPO had applied one of the filters for rejecting the comparables where related party transactions are more than 20% of sales. In the instant case, the said comparable is having related party transactions of 37.96% of sales. Hence the same even according to filters applied by the ld TPO ought to have been excluded from the final list of comparables. No opinion is hereby given on the other objections raised by the assessee with regard to this comparable except related party transactions filter. Hence we hold that EInfochips Bangalore Limited should be excluded from the list of comparables for arriving at the arm's length m....
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....y given on the other objections raised by the assessee with regard to this comparable except related party transactions filter. Hence we hold that Aurum Soft Sytems Limited should be excluded from the list of comparables for arriving at the arm's length margin. Accordingly, the Ground No. 10(c ) raised by the assessee is allowed. 10.6. ASM Technologies Limited The Ground No. 10(d) raised by the assessee is with regard to erroneous inclusion of ASM Technologies Limited as a comparable while arriving at the arm's length margin. We find that the assessee had objected to the said inclusion on the ground that the same is functionally not comparable and the said comparable failing the related party filter. We find that the said comparable has purchases with related party to the tune of Rs. 1196.06 lakhs out of total software development expenses of Rs. 4904 lakhs which works out to 24.34% . This is only when the expenses considered separately vis a vis the related parties. But we find that the ld TPO had applied the filter for rejecting companies where the related party transactions are more than 20% of sales. Hence we reject the contention of the ld AR in this regard and according....
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....arning and changes envisaged in the way the Business / Industries plan and execute their charter. This is good news for the IT industry in particular lending itself to provide solutions for the Growth Phase. ASM will leverage this phase in consolidating and growing the organization by offering more services to the existing clients across other geographies and new client acquisitions. This growth phase will also set a platform to have more long term strategic partnerships with the customers moving up the value chain from project mode and center of excellence. The existing clients will be offered cross solutions across various technologies thus moving from a Technology Competency to Industry Vertical Specialisation relationship thus aligning more deeply with the Client's business. This model will be extended to the new Clients as the relationship progresses. New client acquisitions will be through addition of specialized sales and delivery professionals across geographies, through new company acqusitions and specializations in more Industry Verticals which offer high growth. Hence we find that the said comparable was involved in acquistions during the ye....
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....ent services, application management support services, enterprise application space. Our attention was drawn to this companies website extract copies of which are at page 612 of Vol-II paper book filed by the Assessee. Our attention was also drawn to the extract of this companies financials at page 607 paper book-II wherein the fact that it is developing software products from July, 2009 and that the products will be available for sale to the customers during the financial year 2010-11 is clearly spelt out. Our attention was also drawn to the fact that in the profit and loss account there is reference to income from sale of licenses which is not the case normally in the case of companies providing software development services. Finally it was submitted that the segmental information of these companies is not available as the primary segment is based on geographical area. Our attention was also drawn to several cases decided by various benches of the Tribunal on the comparability of this company with a software development service provider such as the Assessee. We deem it appropriate to make mention of onlyh one such decision rendered by the ITAT Ahmedabad Bench in the case of I-Man....
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....serve that the Co-ordinate Bench, Delhi in the case of Sun Life India Service Centre Pvt. Ltd. v. DCIT (ITA NO. 5799/Del/2012 for AY 2008-09 has held as under :- "21. We hove perused the Annual report of this company which is available on pages 100 onwards of the paper book. The Profit & Loss Account of this company is at page 107, which shows 'Sales & Other income'. Bifurcation of 'Sales ' is available as per Schedule 12, which comprises of 'Sale of licence' amounting to RS. 39.16 lac, 'Software services' amounting to Rs. 7.67 crore, 'Export from SEZ unit' amounting to Rs. 26,39 crore, 'Export from STPI unit' amounting to Rs. 16.88 crore and 'Revenue from subscription' amounting to RS. 92.93 lac. These tiqures indicate that apart from the revenue from 'Software services' which is only to the tune of Rs. 7.67 crore, this company earned total grass revenue from 'Sales' to the tune of Rs. 52,27 crore including from export from SEZlSTPI units. When we consider the figures of this company on an entity level as have been adopted by the TPO for comparison, it becomes vivid that it ceases to be comparable wit....
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....g at arithmetic mean of comparable companies. The ld AR argued that there is no change in functions performed by the assessee company during the year under consideration when compared to that of in the immediately preceding assessment year. This point was not disputed by the revenue before us. Hence we hold that the decision rendered by this tribunal in assessee's own case for Asst Year 2010-11 supra on the ground of functionally not comparable would hold good for this year also. Accordingly, we direct the ld TPO to exclude Thirdware Solutions Limited from the list of comparables while arriving at the arm's length margin. We would like to make it clear that this comparable has been directed to be excluded only on the ground of functionally not comparable and no opinion is given on other arguments advanced by the ld AR before us. Accordingly, the Ground No. 10(e) raised by the assessee is allowed. 10.8. Axis IT & T Ltd The Ground No. 12 raised by the assessee is with regard to erroneous inclusion of Axis IT & T Ltd as a comparable while arriving at the arm's length margin. With regard to inclusion of this comparable by the ld. TPO, we find that there is absolutely no discus....
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....tware consultancy services is different from company engaged in software development services. We find that the ld TPO had obtained information u/s 133(6) of the Act during the course of transfer pricing assessment proceedings from the said company wherein the said company had replied that it provides software development services. The ld TPO by placing reliance on the same held the said company to be a valid comparable with the assessee for computing the arm's length margin. We also find from the profit and loss account of the said company under the head 'Revenue from Operations', it is clearly mentioned that it had derived income from software development to the tune of Rs. 4,30,01,280/- out of total revenue of Rs. 4,30,07,534/-. In view of this, we are inclined to dismiss the preliminary argument advanced by the ld AR that this company is not engaged in software development. Accordingly, we hold that the said company is functionally comparable with that of the assessee company. Accordingly, the Ground No. 11 raised by the assessee is dismissed. 11. Ancent Software International Limited (currently known as Nakshatra Infrastructure Limited) The Ground No. 14 raised by the as....
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....rating profits of Rs. 1,31,24,482/-. It was also pointed out that in the financial years 2008-09 and 200910, it had earned operating profits of Rs. 1,25,70,603/- and Rs. 69,10,523/- respectively. It was also submitted that the break up of revenue from IT and ITES was duly provided to the ld TPO. However segmental margins were not provided for want of segmental data. The ld AR fairly agreed that though this company was treated as functionally comparable by the order of this tribunal in assessee's own case for Asst Year 2010-11, in that year also, there was no availability of segmental data before the ld TPO and that this tribunal did not give any finding on the same. We have been consistently holding that in the absence of segmental data , the segmental margins related to software services segment could not be identified thereby making it comparable with the related margins of the assessee. Hence we hold that Goldstone Technologies Limited had been rightly rejected by the ld TPO from the list of comparables. Accordingly, the Ground No. 15 raised by the assessee is dismissed. 11.2. CG-VAK Software and Exports Limited The Ground No. 16 raised by the assessee is with regard to....
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....he allocation of expenses and the attribution of the foreign exchange gain to the software development services segment of the comparable company CG-VAK software and Exports Ltd., has not been considered by the TPO or DRP. Further it has also to be seen as to what were the reasons for the losses in the case of this comparable company. If all these factors are considered and due adjustment can be given to the operating margins of this company, than the same should be considered as comparable company and added to the list of comparables for determining Arithmetic mean of profits of comparable companies. The TPO is directed to consider the comparability of this company afresh in the light of the aforesaid observations and also taking note of decision rendered on this aspect by Tribunals and Hon'ble High Courts if any. Both the parties before us fairly agreed that let similar direction be given for the year under consideration also. Accordingly, the Ground No. 16 raised by the assessee is remanded to the file of ld TPO with similar directions that were given for Asst Year 2010-11 by this tribunal. Accordingly, the Ground No. 16 raised by the assessee is allowed for statistical p....
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.... list of comparables. But at the time of hearing, no arguments were advanced by the ld AR before us. Hence we do not deem it fit to interfere with the action of the ld TPO in rejecting the said comparable. Accordingly, the Ground No. 17 raised by the assessee in respect of R Systems International Limited is dismissed. 11.5. Helios and Mathesan Information Technology Limited We find that this company has been rejected by the ld TPO in the list of comparables while computing the arm's length margin for having different financial year with that of the assessee. We find that this issue has been the subject matter of adjudication by this tribunal in assessee's own case for the Asst Year 2010-11 in ITA No. 587/Kol/2015 dated 4.10.2017 wherein it was set aside to the file of ld TPO with some directions. But during the course of hearing, the ld AR stated that the rejection of this comparable would be in consonance with the filters applied by the ld TPO in his order. We find that the ld TPO had applied one of the filters that companies having different financial years with that of the assessee should be rejected. In order to maintain consistency in the said stand the ld AR fairly agre....
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.... tribunal in assessee's own case for the Asst Year 2010-11 in ITA No. 587/Kol/2015 dated 4.10.2017 wherein it was held as under:- 41. As far as Gr. No. 15 and 16 are concerned, they project the grievance of the Assessee in the action of the TPO and DRP in not allowing adjustments to the arithmetic mean of profits of the final comparable companies towards working capital and other risks which according to the Assessee are required to be given under the provisions of Rule 10B(1)( e) of the Income Tax Rules, 1962 (Rules). 42. The DRP dealt with this issue as follows: "Decision: 10.2 The issue has been considered. The Assessee has objected to TPO not allowing working 'capital adjustment to the margins of the comparables as well as in its own case the-claim of working capital adjustment is not automatic the issue of working capital is relevant when there is a situation of inventory remaining tide up or receivables being held up or delay however this situations would not be very relevant to the service providers like the Assessee. While calculating the operating profit margin, the financial expenses and financial income is removed. Thus, the effect....
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....various factors including the market conditions, geographical conditions, cost of labour and capital in the market. Accounts receivable/payable effect the cost of working capital. A company which has a substantial amount blocked with the debtors for a long period cannot be fully comparable to the case which is able to recover the debt promptly. In our view, the average of opening and closing balance in the account receivable/payable for the relevant year may be adopted which may broadly give the representative level of working capital over the year. Even if there is some difference with respect to the representative level, it will not effect the comparability as the same method will be applied to all cases. Working capital adjustment cannot be denied to the assessee only on the ground that the assessee had not made any claim in the TP study if it is possible to make such adjustment." 44. Respectfully following the aforesaid ruling, we direct the TPO to make adjustments on account of working capital to the profit margin of the Assessee as well as the comparables and allow adjustments in accordance with law, after affording opportunity of being heard to the Assessee. We may ....
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..... 22,35,666/- as on 31.3.2011 . We find that the ld AR argued that the software products developed by the assessee in the earlier year were encashed during the year in the form of receipt of revenues thereon which is evident from the annual report. Hence it could be safely concluded that the said company's main stream of revenue is out of sale of software products and not only software development thereby making it functionally not comparable with the assessee. Hence we hold that the same has been rightly rejected by the ld DRP which in our considered opinion, requires no interference. Accordingly, the Ground No. 2 raised by the revenue in respect of Lucid Software Limited is dismissed. 14.1. Prelude Systems India Limited The assessee rejected this company in the list of comparables while benchmarking its international transactions. The ld TPO included this company in the list of comparables while computing the arm's length margin without any discussion in his order. This was rejected by the ld DRP on the ground that the company has diverse activities. Against this, the revenue is in appeal before us. We find that the said comparable has related party transactions of 87.20% o....
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....cos Internet Ltd) The assessee included this company in the list of comparables while benchmarking its international transactions. The ld TPO rejected this company in the list of comparables while computing the arm's length margin without any discussion in his order. The ld DRP vide para 8.1 of its order directed inclusion of the said company in the list of comparables on the ground that the functions performed, assets employed and risks assumed by the said company are similar to that of the assessee. Against this, the revenue is in appeal before us. We find from the annual report for the financial year ended 31.3.2011 of the said company, that it is engaged in providing software services and even the income from software development is accounted for on the basis of software developed and billed to clients on acceptance and / or on the basis of man days / man hours as per the terms of contract as per the accounting policy of the said company. We find that the total turnover of the said company for the year ended 31.3.2011 as per their annual report is 298,67,66,057/-. We find that the ld TPO had applied one of the filters for rejecting companies having turnover more than Rs. 200....
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....o Explanation 1 of Sec. 115JB of the Act independently after considering the expenses debited in the profit & loss account as mandated under the provisions of law. Accordingly, the Ground No. 25 raised by the assessee is allowed for statistical purposes. 18. The Ground No. 26 raised by the assessee is with regard to the action of the ld AO in adding back the disallowance conceived by the ld TPO in the sum of Rs. 1,42,89,924/- towards adjustment to ALP in the computation of book profits u/s 115JB of the Act. This issue is now settled in favour of the assessee by the decision of the co-ordinate bench of Delhi Tribunal in the case of M/s Cash Edge India (Pvt) Ltd vs ITO in ITA No. 64/Del/2015 for Asst Year 2010-11 dated 23.9.2015 wherein it was held that :- "36. We have considered the rival submissions and perused the material on record. It is settled law that except for adjustments provided in Explanation 1 Section 115JB(2) of the Act, no other adjustment can be made to book profits under Section 115JB of the Act. We find that that transfer pricing adjustment is not one of the adjustments contemplated under Explanation 1 Section 115JB(2) of the Act and, therefore....