M/S CONTATA SOLUTIONS PVT. LTD.,,NEW DELHI vs. ITO, NEW DELHI

The Ld. Assessing Officer has completely ignored the facts in the submissions made before him and proceeded to make transfer pricing adjustment on the basis of TPO's order.

The Ld. Transfer Pricing Officer has erred in facts and in law to reject, based on his subjective grounds and presumptions, the economic analysis conducted by the appellant for determination of the arm's length price.

The Ld. Transfer Pricing Officer has erred in laws and facts of the case by ignoring Functions, Assets and Risk Profile of companies selected by Ld. Transfer Pricing Officer as comparables and that of appellant.

The Ld. Transfer Pricing Officer has erred on facts and circumstances of the case by considering companies having very high turnover, mergers and acquisitions activity, products/ intangibles, high R&D and advertising marketing spend as comparables.

The Ld. Transfer Pricing Officer has erred in laws and facts of the case by ignoring the differences between risk profile of appellant and companies selected by him as comparables and denying adjustment on account of such differences in risk profiles

The Ld. Transfer Pricing Officer has erred in laws and facts of the case by ignoring the differences between working capital requirements of appellant and companies selected by him as comparables and erroneously computing adjustment on account of such differences in working capital requirements.

The Ld. Transfer Pricing Officer has erred in laws and facts of the case by ignoring the idle capacity adjustment made on account of the idle capacity.

The Ld. Transfer Pricing Officer has erred in law by treating Foreign exchange income/expenses - 15 Honourable DRP has completely ignored the entire submission made by the appellant and passed the order in a mechanical manner without considering any of the submission/fact placed before it. 16. Honourable DRP / Ld. Transfer Pricing Officer has considered tiny sized appellant with the huge giant like Infosys, Wipro, L&T etc disregarding completely not only the FAR analysis but also contrary to various judicial pronouncements made by the higher Appellate Authorities. 17. The above grounds are without prejudice to each other.” 2. The brief fact shows that the assessee filed its return of income on 25/11/2011 declaring income of Rs. 25811/–. The return was subsequently revised on 25/2/2013 declaring income of Rs. 25810 after claiming deduction under section 10 A of the income tax act amounting to INR 10236515/-. Assessee paid the tax on the book profit u/s 115JB of the act. 3. Assessee is a company Incorporated on 27/5/2002 registered as a unit under software technology Park scheme of India at Noida. It is engaged in the business of computer software development, data processing, value addition services, content development and solution provider exclusively to its associated enterprise. The assessee has undertaken the international transaction of rendering of software development services amounting to INR 104222574/- , therefore learned AO referred the matter to the learned TPO for determining the arm‟s-length price of the about transaction. 4. The functional profile of the assessee shown that is engaged in providing services exclusively to its AE for software development. The assignments are allocated in execution of the same on case to case basis. Assessee benchmarked its International Transactions adopting transactional net margin method [ TNMM] as the most appropriate method [ MAM] adopting profit level indicator [PLI] of operating profit/operating cost[ OP/OC] . The assessee selected 8 comparables Page | 3 whose average margin was 10.15 percentage and the operating margin of the assessee was computed at 12.34 percentage, hence , it was held that the international transactions are at arm‟s-length.

The learned transfer pricing officer rejected the transfer pricing study report of the assessee and further carried out the fresh search, selected 20 comparables whose profit level indicator of operating profit/operating cost was 22.77%, applied the same on the international transaction and determine ALP at Rs. 117815356/–. Accordingly difference of RS. 13592782/- was worked out. Consequently draft of proposed assessment was passed. The assessee filed objection before The Dispute Resolution Panel – 1, New Delhi [ The Ld DRP] who passed the direction on 20/8/2015 holding that all the comparable selected by the learned TPO are valid comparables. Further the learned DRP enhanced the ALP of the international transaction as determined by the TPO from INR 13592782/– to Rs. 13880675/–. Consequently the assessment order u/s 143 (3) read with section 144C of the income tax act was passed on 28/9/2015 wherein the addition of INR 13880675/– was included in the total income, it was determined at INR 13906485/–. The assessee aggrieved with that order has preferred this appeal.

The learned authorised representative submitted a detailed chart before us with respect to the various comparables. He further stated that the coordinate bench in assessee‟s own case for assessment year 2010 – 11 has decided the issue of the comparability analysis. He referred para number 19.3 of the order of the coordinate bench dated 15/1/2019 in ITA number 1565/Del/2015 wherein the coordinate bench has directed to exclude 6 comparables on certain criteria. He further referred to para number 21 wherein 2 comparables which were decided for the exclusion. He further referred to para number 23 wherein 2 comparables the issue has been set aside to the file of the learned transfer pricing officer for determining the comparability analysis afresh after carrying out proper FAR analysis in respect of the comparables. He therefore submitted that in the case of the assessee the issue is decided for assessment year 2010 – 11 and therefore same may be followed in this year too. Page | 4

We have carefully considered the rival contention and perused the orders of the lower authorities. The transfer pricing study report prepared by the assessee is placed at page number 95 – 184 of the paper book. The functional analysis prepared by the assessee of the functions performed by it is placed at page number 11 – 15 of the TP study report. More precisely the functions performed by the assessee are mentioned at para number 5.1 at page number 13 of the transfer pricing study report. It is mentioned that assessee performs research and development activities along with its associated enterprise. The product strategy and design is also undertaken by both the parties. The marketing advertisement and sales promotion and distribution activity is are only performed by the associated enterprise. With respect to the general management both the entities perform their own functions with respect to their own activities. Therefore on the plain reading of the functional analysis performed by the assessee it is not clear what kind of activities of software development services assessee is performing. Even the risk metrics does not show what kind of risk are borne by the assessee as well as the associated enterprises. Further on careful reading of the order of Ld TPO u/s 92CA (3) of the act, he has merely discussed the profile of the assessee and group in para number 2 of his order. Further , the learned transfer pricing officer has merely reproduced the agreement entered into by the assessee at page number 11 – 13 of his order. At page number 17, the learned transfer pricing officer has merely referred to the employee profile of the assessee. However he has only mentioned that from the details the employees of the assessee company, he noted that they are highly qualified personal having professional qualification in the field of engineering and management. Therefore the learned transfer pricing officer held that assessee is employing highly qualified personnel for rendering services who were capable of providing software development services having different facets in the nature of application development, Page | 5 software consultancy et cetera relating to different vertical such as banking and financial services, software solutions et cetera. He held that the objection of the assessee to differentiate between assessee and the comparable on the basis of different kinds of software services was rejected. However it was never mentioned that what kind of activities the assessee is performing. Nowhere the functions performed by the assessee are discussed. In view of this the assessee as well as the learned transfer pricing officer has straight away jumped to the comparability analysis without 1st analyzing the functions performed by the assessee company. When the matter reached to the learned dispute resolution panel, vide paragraph number A the learned DRP held that assessee is engaged in providing high-end software development services to its associated enterprise. Even this finding of the learned dispute resolution panel was also not supported by any functional analysis carried out. During the course of hearing also we have raised querry to the learned authorised representative to show the functions performed by the assessee, the learned authorised representative also mentioned the various paragraphs of the transfer pricing study report, order of the learned transfer pricing officer only, which we have already referred. Therefore, We are of the opinion that in absence of the proper functional analysis carried out of the functions performed by the assessee, it is difficult to analyze the international transactions entered into by the assessee by putting the proper comparability analysis. Merely looking at the agreement with the associated enterprise does not throw any light on the finding of the learned lower authorities that assessee is providing high-end software development services , it cannot be sustained. Neither the assessee, nor the transfer pricing officer has carried out the analysis of the functional profile of the assessee. We have also tried to analyze the functions performed by the assessee by looking at the agreement for software services which is placed at page number 188 onwards of the paper book. We could not find anything from that particular agreement that what kind of activities the assessee is performing. Even there is no definition in the agreement for software services i.e. what do we mean Page | 6 by „work for software development or other IT enabled services‟ which are provided by the assessee to its associated enterprise. It is very general. In view of this, we do not have any other alternative but to set aside the whole issue back to the file of the learned AO/TPO with a direction to the assessee to 1st put the complete functional profile before the assessing authority, and, then proceed with the comparability analysis. We are also supported by the order of the coordinate bench in assessee‟s own case for earlier year assessment year 2010 – 11, where the lower turnover filter applied by TPO but there is no higher turnover filter applied was under challenge. Further in para number 23.5 the coordinate bench set aside the matter to the learned transfer pricing officer to carry out proper FAR analysis in respect of the comparables. Accordingly, the matter with all aspect of determination of the ALP of the international transaction entered into by the assessee have been set aside to the file of the learned transfer pricing officer/assessing officer with a direction to the assessee to 1st submit the functional profile of the assessee, and then submit comparability analysis by selecting suitable comparables. The assessee is further directed to demonstrate before the transfer pricing officer/AO the complete justification with respect to all filters applied , accept / reject matrix, and the method of determination of ALP adopted. The learned AO/TPO may examine the same and then determine the ALP of the international transaction. The AO is further directed to pass first draft of the assessment proposed, so that the assessee gets proper opportunity once again to go before the dispute resolution panel, which is the mandate of the law. Accordingly all the grounds of the appeal are set aside with above direction.