HEWLETT-PACKARD (INDIA) SOFTWARE OPERATION PRIVATE LIMITED,BANGALORE vs. DCIT, BANGALORE

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ITA 668/BANG/2016Status: DisposedITAT Bangalore16 March 2020AY 2011-126 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal recalled its earlier order to address the inadvertently omitted ground. After considering submissions, it directed the TPO to re-examine the comparable's segmental figures and recompute its margin, setting aside the issue to the AO/TPO.

What were the facts?

The assessee filed an appeal seeking to exclude a comparable company, Sasken Communication Technologies Pvt. Ltd., from the transfer pricing analysis. The Tribunal had inadvertently failed to adjudicate this specific ground in its original order.

What were the issues?

Whether Sasken Communication Technologies Pvt. Ltd. is a valid comparable for the assessee, and if so, how its margin should be computed considering segmental data.

Which sections of the Income-tax Act were involved?

Not specified

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, ‘B’ BENCH : BANGALORE

Before: SHRI. B. R. BASKARAN, ACCOUNTANT & SMT. BEENA PILLAI

For Appellant: Shri Sharat Rao, C.A
For Respondent: Shri Mulaffar Hussain, , CIT – DR

ORDER PER BEENA PILLAI, JUDICIAL MEMBER Present appeal arises out of order dated 05/12/2019 passed in MP No.120/Bang/2019 filed by assessee in referring to certain inadvertent mistake Page 2 of 6 IT(TP)A 668/Bang/2016 A. Y : 2011 – 12 in order passed by this Tribunal dated 7/8/2019 for assessment year 2011-12.

2.

Vide order dated 05/12/2009, this Tribunal recalled additional ground pertaining to Sasken Communication Technologies Pvt Ltd., wherein assessee sought exclusion of this comparable.

3.

We have perused the order dated 7/8/2019 passed by this Tribunal, wherein additional ground was admitted. However, inadvertently Sasken Communication Technologies Pvt. Ltd., raised in additional ground 11, remained to be adjudicated which reads as under:

11. The Honbie DRP and the Ld. TPO have erred in the fresh study, in selecting Sasken Communication Technologies Private Limited as comparable to the Appellant despite the same being functionally different to the Appellant or fails to meet the legally acceptable criteria for comparability.

4.

In the original order dated 7/8/2019, comparables sought for inclusion/exclusion in assessee’s appeal has been dealt with from para 14 onwards. In paragraph 16 therein this Tribunal analysed FAR of assessee under software development service segment and has categorised assessee to be a low risk bearing contract service provider to its associated enterprises. Referring to comparability analysis carried out by this Tribunal in original order dated 7/8/2019, we in paragraph 17 are convinced that Sasken Communications Technologies Ltd., raised in additional Page 3 of 6 IT(TP)A 668/Bang/2016 A. Y : 2011 – 12 ground No.11 was inadvertently not adjudicated which was a mistake apparent on record.

5.

We have perused our notings in the log book, wherein Ld.AR submitted as under, seeking exclusion of Sasken Communications. Therefore this comparable is adjudicated as under: Sasken Communications Technologies Ltd Assessee seek exclusion of this comparable for the reason that it is engaged in development of software products and has inventory is an intangible assets. It has been submitted by Ld.AR that this company is also having huge expenditures on our and the. He further submitted that during the year under consideration revenue from software products is more and it launched a new product called VYAPAR SEVA. Ld.AR submitted that this company has significant intangibles and inventory is and therefore should be rejected to be compared with a captive service provider like assessee. In support of his contentions he placed reliance upon decision of this Tribunal in case of Sexo India Pvt.Ltd. vs ITO in IT(TP)A No.166 & 181/B/2016, vide order dated 22/02/2017. On the contrary, Ld.CIT DR placed reliance on orders passed by authorities below. He submitted that, though there is revenue from 3 separate segments, segmental information are available. It is submitted that product launched is for a future period and has not generated any revenue during the year under consideration. There is no impact of this launch on financials of this company for year Page 4 of 6 IT(TP)A 668/Bang/2016 A. Y : 2011 – 12 under consideration. In all fairness he submitted that the issue may be set aside to Ld.AO/TPO for verification of the same. We have perused submissions advanced by both sides in light of records placed before. At page 1476 and 1486 of annual report, placed in volume – III it is observed that segmental detail is available. All details relevant for computing margin of this comparable are available at page 604 and 659 of paper book volume I. It has also been submitted that Ld. TPO computed working capital adjustment of this comparables wrongly. We therefore direct Ld. TPO to consider segmental figure appearing in segmental breakup at page 1486 instead of considering consolidated profits from software services of this company and to compute correct margin as per law. We therefore set aside this comparable to Ld.AO/TPO to verify relevant observations recorded herein above and to recompute margins of this comparable. Accordingly this comparable is set aside to Ld.AO/TPO.

6.

Accordingly, Additional Ground.11 raised by assessee stands allowed for statistical purposes Order pronounced in the open court on 16th March, 2020 Sd/- Sd/- (B. R. BASKARAN) (BEENA PILLAI) Accountant Member Judicial Member Bangalore, Dated, the 16th March, 2020. /Vms/ Page 5 of 6 IT(TP)A 668/Bang/2016 A. Y : 2011 – 12 Copy to: 1. Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR, ITAT, Bangalore 6. Guard file

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