M/S VODAFONE GLOBAL SERVICES P LTD,,PUNE vs. ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE 1(1),, PUNE

During the course of hearing, Ld. Counsel for the assessee has not pressed Grounds of Appeal No.7, 8, 9 and 10 as well as additional ground. Therefore, the said grounds are dismissed as ‘not pressed’.

Brief facts of the case are that the assessee is a company incorporated in India and is a wholly owned subsidiary of Vodafone Tele Services (India) holdings Limited, Mauritius and Vodafone Mauritius Limited (VGSPL). Assessee is engaged in the business of providing Telecommunication Networking Services which include Network Design, Project Management and implementation, Network Management and Maintenance services. Income of Rs.18,83,22,690/- declared in the return for A.Y. 2018-19 furnished on 30.11.2018. Subsequently, case selected for scrutiny through CASS followed by validly serving of statutory notices u/s.143(1)/142(1) of the Act. Since during the year assessee entered into an international transaction with its Associated Enterprise (AE), Assessing Officer made a reference to the Transfer Pricing Officer (TPO) on 18.02.2021. After taking mandatory approval, ld. TPO carried out the proceedings considering the submissions of the assessee and framed the order u/s.92CA(3) of the Act making two adjustments. Firstly by computing the Operating Profit Margin (OPM) @8.80% as against 12.49% declared by the assessee and for arriving at the OPM @8.80% ld. TPO did not consider the Net gain/Loss on Foreign Currency transactions and Translations and gain on measurement of defined benefit obligations treating them to be non-operating income. Secondly, ld. TPO examined the Arms M/s. Vodafone Global Services Private Limited Length Price (ALP) of the international transaction of the Information Technology Enabled Services (ITeS) between the assessee and its AE amounting to Rs.119.89 crore approx and observed that asseseess has calculated the ALP based on the Transactional Net Margin Method (TNMM) considering various comparables. Ld. TPO rejected some of the comparables adopted by assessee and also introduced certain comparables for the purpose of calculating Profit Level Indicator (PLI) and after detailed discussion in para 24 of the order TPO’s has calculated the median PLI at 24.02%. Ld. TPO applied PLI 24.02% on the total operating cost since the total operating revenue of the assessee company was from ITeS provided to AE. Ld. TPO accordingly calculated the ALP of the international transaction at 138.67 crore and since the difference between the ALP of the international transaction calculated by ld. TPO and the value of international transaction declared by the assessee was more than 3% of the international transaction, final adjustment for the addition in the ALP of the international transaction was made at Rs.17.02 crore approx. Ld. AO based on the order of ld. TPO dated 30.07.2021 prepared the draft assessment order against which the assessee went before the ld. Dispute Resolution Panel (DRP) and vide order dated 12.05.2022 ld. DRP directed the TPO to re-verify the claims of the appellant related to computation of margins of comparables and the order giving effect dated 20.06.2022 was received by the assessee wherein range of comparable companies was 15.35% to 24.76% with median of 23.40% resulting in the Transfer Pricing adjustment amounting to Rs.16.32 crore.

As discussed (supra), assessee has raised various grounds of appeal of which some have not been pressed including the additional ground and the following two effective issues remain for our adjudication :

Ld. Counsel for the assessee vehemently argued referring to the detailed written submissions and contents of the same will be dealt while adjudicating the respective issue.

On the other hand, ld. Departmental Representative vehemently argued supporting the orders of the lower authorities.

We have heard the rival contentions and perused the record placed before us and carefully gone through the decisions and paper book referred and relied on by both the sides. So far as the issue of Foreign Exchange Gain/loss is concerned, assessee has treated it as Operating Income but this claim of the assessee has been reversed by the ld. DRP. During the year, assessee has earned Net Gain from Foreign Currency Transactions and Translations at Rs.17.02 crore. Before us, Ld. Counsel for the assessee has submitted that if the assessee did not opt for Safe M/s. Vodafone Global Services Private Limited Harbour Rules as provided in Rule 10TA of the Income Tax Rules, 1962, then as per the Organisation for Economic Co- operation and Development (OECD), if the Foreign Exchange Gain/loss is related to trade receivable and payable then it has to be consistently accounted for the purpose of calculating PLI. Further certain judicial pronouncements have been referred by ld. Counsel for the assessee and observing the same we find that Hon'ble High Court of Delhi in the case of PCIT Vs. B.C. Management Services Pvt. Ltd. judgment dated 28.11.2017 has held that Foreign Exchange Fluctuations in relation to trading items and emanating from international transactions, direct value derived from it cannot be treated non-operating loss/gain. Following the said judgment, this Tribunal in the case of Transperfect Solutions India Pvt. Ltd., Vs. ACIT [ITA No.331/PUN/2021, order dated 29.07.2022], has held that Foreign Exchange fluctuations cannot be treated as non- operating loss/gain. So far as the contentions made by ld. DR that under the Safe Harbour Rules, Foreign Exchange gains/losses are to be excluded, we on going through the decisions of Coordinate Bench, Delhi in the case of Validor Capital India Pvt. Ltd. vs. ITO in order dated 22.11.2018 referred by ld. Counsel for the assessee, find that the Tribunal has held that Safe Harbour Rules are like presumptive taxation and if are not opted by the assessee those are not binding on the assessee. Similar view was also adopted by this Tribunal in the case of Delval Flow Controls Private Limited in Vs. DCIT order dated 20.01.2021 referred and relied on by ld. Counsel for the assessee holding that Foreign Exchange gain/loss earned/incurred by the assessee and the other comparables needs to be considered as a part of operating revenue/cost not only for the reason that the assessment year M/s. Vodafone Global Services Private Limited under consideration is prior to the applicability of the safe harbor rules but also that there can be no question of applying Rule 10TA in the absence of the assessee having or exercising option to be subjected to the safe harbor rules.

In view of the above discussion and placing reliance on the ratio laid down by the Hon'ble High Court of Delhi in the case of B.C. Management Services Pvt. Ltd. (supra) we find that Revenue of the assessee company is only from Information Technology Enabled services provided to its Associated Enterprise and Net Gain on Foreign Currency Transactions and Translations are on the trade receivables from the AE and therefore we hold that the assessee has rightly treated the Net Gain from Foreign Currency Transactions and Translations at Rs.17.02 crore as Operating Income and has rightly been included for the purpose of calculating Operating Profit Margin for the year. Ld. Assessing Officer is directed to give due effect to our directions. Thus, ground No.6 raised by the assessee is allowed as per the terms indicated herein above.

Second issue which has been raised by the assessee through grounds No.2, 3, 4 and 5 relate to exclusion of the comparables selected by ld. TPO and inclusion of the comparables selected by assessee for the purpose of calculating ALP of the international transaction of ITeS provided by the assessee to its AE.

Before us, following are the list of alleged disputed comparable companies which ld. TPO has included for the purpose of calculating PLI in order to computer ALP of International Transactions with AE :

Before us, Ld. Counsel for the assessee at the outset has submitted companies mentioned at Sl.Nos. 1 to 4 were included by ld. TPO while carrying out the proceedings for A.Y. 2017-18 also and this Tribunal in order dated 12.04.2023 has held that all these four comparables needs to be excluded as the services rendered by these comparables are not similar to the activity carried by the assessee and are functionally different and therefore are not good comparables. Ld. Departmental Representative failed to controvert the contentions putforth by ld. Counsel for the assessee. We therefore respectfully following the decision of this Tribunal in assessee’s own case for A.Y. 2017-18 hold that the comparables namely (1) Manipal Digital Systems Pvt. Ltd.(2) C E S Ltd.(3) M P S Ltd. and (4) Domex E-Data Pvt. Ltd. are hereby excluded from the list of comparables adopted by ld. TPO and should not be considered for calculating PLI.

So far as the company mentioned at Sl.No.5 namely Tech Mahindra Business Services Ltd. which has been adopted as comparable by ld. TPO, we on going through the order of this Tribunal for A.Y. 2017-18 find that this Tribunal has held against the assessee observing that Tech Mahindra Business Services Ltd. is a good comparable. Ld. Counsel for the assessee failed to controvert this fact and we therefore hold that Tech Mahindra Business Services Ltd. is a good comparable and has been rightly selected by ld. TPO.

Now we take up the remaining comparables mentioned at Sl.Nos. 6, 7 and 8 namely Integra Software Services Pvt. Ltd.; Vitae International Accounting Services Pvt. Ltd.; and Access Healthcare Services Pvt. Ltd. Ld. Counsel for the assessee has referred and relied on the decision of this Tribunal in the case of Rage Frameworks India Private Limited Vs. ACIT – order dated 05.01.2023 where it has been held that these companies are not good comparables with regard to the ITeS segment. Finding of this Tribunal given at para No.6 of the order dated 05.01.2023 reads as under :

Going through the above decision of this Tribunal, we find merit in the contention of ld. Counsel for the assessee and are inclined to hold that since these three companies have been held to be not good comparables for determining the ALP of ITeS segment by this Tribunal in Rage Frameworks India Private Limited (supra) and ld. Departmental Representative having failed to controvert by placing any binding precedence in favour of Revenue, the same are hereby directed to be excluded from the list of comparables adopted by ld. TPO for the purpose of calculating PLI.

To conclude, out of eight comparables referred in the list above only one comparable namely Tech Mahindra Business Services Ltd. is held to be a good comparable included by ld. TPO and all the remaining comparables are hereby excluded.

Now we take up the list of comparables included by the assessee for the purpose of calculating PLI but not accepted by ld. DRP :

Comparables namely Bhilwara Info Technology Ltd. (Medical Transcription segment) ; Cosmic Global Ltd. ; and Jindal Intellicom Ltd. were rejected by ld. TPO because the Forex Revenue was less than 75% of the Operating Revenue. Ld. DRP also upheld the observation of ld.TPO because in the case of assessee total Operating Revenue is from Export services whereas in the case of comparables under consideration Forex Revenue is less than 75%. We also notice that comparables, Bhilwara Info Technology Ltd. and Cosmic Global Ltd. are in the field of Transcription M/s. Vodafone Global Services Private Limited services and business processing and outsourcing and Jindal Intellicom Ltd. is engaged in rendering business processing and outsourcing services in the field of Healthcare and Business Process Management to transform the way hospitals manage patients. However, the assessee company is purely in the business of Telecommunication Networking Services which include Network Design, Project Management and implementation, Network Management and Maintenance services. In other words, all the activities of the assessee company are in the field of Telecommunication Networking services and are functionally different from the alleged three comparables mentioned at Sl.No.1, 3 and 5 of the list at para 18 above. Under these given facts, the three comparables namely Bhilwara Info Technology Ltd. (Medical Transcription segment) ; Cosmic Global Ltd. ; and Jindal Intellicom Ltd. are not held to be good comparables and we hold that they should not be included in the list of comparables meant for calculating PLI for calculation of ALP of transaction with AE under TNMM. Therefore, arguments advanced by ld. Counsel for the assessee for inclusion of these comparables are hereby rejected and are not to be included in the final list of comparables.

Next coming in the list of comparables given by the assessee is R systems International Ltd. (ITeS Segment). We find that this Tribunal in assessee’s own case for A.Y. 2017-18 has accepted this comparable as a good comparable. Therefore, following the judicial precedent in dated 12.04.2023, we direct the Assessing Officer/ld. Transfer Pricing Officer to include R systems International Ltd. as a comparable for calculating PLI.

Last comparable provided by the assessee for inclusion in the list of comparables is Digicall Global Pvt. Ltd. Ld. TPO rejected this comparable because there was diminishing Revenue. Ld. DRP also upheld the rejection stating that cost plus billing model, the receivables are not generally outstanding for such long time unless extraneous/unusual set of circumstances are involved. Ld. DRP also observed that company showing persistent losses/diminishing revenues is clearly having peculiar economic circumstances including chances of closure, under utilization of assets etc. and hence shall be rejected. Ld. Counsel for the assessee has stated that Digicall Global Pvt. Ltd. operates in the field of Telephone call center service provider and offering voice solutions and end to end customer care solutions to BFSI and Healthcare industry verticals serving mid size corporate and receivables management companies. Main revenue of the company is from Call Center operations. He also stated that the company is comparable to Tech Mahendra Business Services Ltd. which is selected by ld. TPO in its own search and even accepted by this Tribunal. We on going through the observations of ld.TPO/DRP and the submissions made by ld. Counsel for the assessee find that so far as functionality is concerned, assessee company to some extent is comparable to Digicall Global Pvt. Ltd. as it is operating in some common fields. However, we do not find it to be a fit comparable because the Revenue in the case of the assessee are consistent whereas the Revenue in the case of Digicall Global Pvt. Ltd. are on the diminishing side. There may be many reasons for such diminishing Revenue and due to diminishing Revenue profits will also be on a decreasing trend. As we have discussed above that for the purpose of including the comparables most of the parameters should be similar. In the case of Digicall Global Pvt. Ltd. eventhough functionally they are comparable to some extent but it cannot be included as a good comparable because the Revenue are not consistent and are not at par with the Revenue consistency of the assessee company. Therefore, we hold that Digicall Global Pvt. Ltd. is not a good comparable and the request of the assessee for inclusion of this comparable in the list of comparables is hereby rejected.

To conclude, the summary of the list of alleged comparables directed to be excluded/included is given below :

In light of the above observations, issues raised in Ground Nos. 2 to 5 are remitted back to the file of ld. AO/TPO with a M/s. Vodafone Global Services Private Limited direction to re-calculate the PLI for the purpose of determining the ALP of the international transaction of ITeS. Grounds of appeal No. 2 to 5 are hereby allowed for statistical purposes.

In the result, appeal of the assessee is partly allowed for statistical purposes.