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Income Tax Appellate Tribunal, DELHI BENCH “I-2”: NEW DELHI
Before: SHRI H.S.SIDHU & SHRI PRASHANT MAHARISHI
O R D E R PER PRASHANT MAHARISHI, A. M. 1. This is an appeal filed by the revenue against the direction of the learned dispute resolution panel – 2, New Delhi dated 16/10/2015 pursuant to which order of the ld Assessing Officer dated 30.11.2015 for the Assessment Year 2011-12 passed u/ 143 (3) read with section 144C of the income tax act 1961. 2. The revenue has raised the following grounds of appeal:- “1. Whether on the facts and circumstances of the case and in law the Ld. DRP is justified in rejecting a comparable considered by TPO by ignoring and misinterpreting the facts of each comparable.
2. Whether on the facts and circumstances of the case and in law the Ld. DRP is justified in rejecting comparable selected by the TPO by considering them as high end ITES comparable and at parallel allowing to retain other high end ITES comparable i.e. Infosys BPO Ltd. in the final set of comparables.
3. Whether on the facts and circumstances of the case and in law the Ld. DRP is justified in laying down stringent standards of comparability and attempting to identify exact replica of the taxpayer for comparability analysis, whereas the Indian laws and the international jurisprudence recognize the reality that there cannot be an exact comparable in a given situation without any difference without Page | 1 appreciating that such stringency will defeat the purpose of flexibility provided in comparability analysis for determination of ALP.
Whether on the facts and circumstances of the case and in law the Ld. DRP is justified in rejecting Eclerx Services Ltd as a comparable by stating it being a high end ITES company as compared to the assessee and ignoring the fact that it is an ITES company which can be comparable as per directions of CBDT.
Whether on the facts and circumstances of the case and in law the Ld. DRP is justified in rejecting ICRA Techno Analytics Ltd. (segmental) as a comparable by stating it being a high end ITES company as compared to the assessee and ignoring the fact that it is an ITES company which can be a comparable as per directions of CBDT.
That the order of the Ld. DRP is erroneous and is not tenable on facts and in law.”
The assessee is a subsidiary company of US Company engaged as a captive business process outsourcing unit of its parent company focusing on insurance claim processing for its parents clients in USA. Assessee filed its return of income declaring total income of INR 20 10299/– under normal provision and INR 3377 2753/– under section 115JB of the act. As the assessee has entered into an international transaction with its associated enterprise the learned assessing officer referred the matter to the transfer pricing officer for determining arm’s-length transaction as per the provisions of section 92CA of the income tax act. The international transactions entered into by the assessee are a provision of services of physician revenue cycle management which is a web-based service. The assessee is engaged in the delivery of technology-based healthcare reimbursement solution and other business and information management services to physicians’ network and ambulatory care Centre. The assessee is providing services of offshore medical coding, billing and claims processing support services, healthcare claims management and call centre activities pertaining to medical billing services. The assessee benchmarked the same by adopting transactional net margin method as the most appropriate method selecting the profit level indicator of operating profit/operating cost of the international transaction of INR 2 04877074/–. The margin of the assessee is 20% whereas the margin of the comparable selected by the assessee was 10.85 percent and therefore the assessee stated that the international transactions entered into by it are at arm’s-length. The learned transfer pricing officer not satisfied with the transfer pricing study report of the Page | 2 assessee issued a show cause notice on 5/12/2014 stating that the comparable to be selected in the case of the assessee is from the entire domain of the ITeS industries and there is no particular need to look for comparables in any particular niche area. He also objected to certain search processes and filters applied by the assessee. Consequently he applied his own filter. He also studied the comparable selected by the assessee. Assessee selected 11 comparables out of which he accepted the 2 comparables and rejected 9 comparables. The 2 comparables that are accepted by the learned transfer pricing officer selected by the assessee were Infosys BPO Ltd and Jindal Intellicom Pvt Ltd. He further introduced four further comparables such as Accentia technologies Ltd, E Clerkx Services Limited, ICRA Techno analytics Ltd (segmental) and TCS E serve limited. He computed their average profit level indicator of OP/OC at 35.40 percentage and applied the same to the operational cost of INR 169425005/– determined arm’s-length price of 229401457 against the actual price received of INR 2 04877074 and determined arm’s-length price of 215120928 and proposed an adjustment under section 92CA of INR 24524383/–. He passed an order u/s 92CA (3) of the act on 8/1/2015. The learned assessing officer passed draft assessment order on 26/2/2015 computing the arm’s-length price of the international transaction as well as other additions were made and total income of the assessee was computed at INR 64704670/-. The assessee filed an objection before the learned dispute resolution panel-2, New Delhi. The learned dispute resolution panel passed the direction under section 144C (5) of the IT act giving certain directions to the learned transfer pricing officer/AO wherein it directed the AO to exclude for comparables such as Accentia technology Ltd, E Clerx services Ltd, TCS E serve limited and ICRA Techno analyst Ltd (segmental). The learned dispute resolution panel gave the reason that assessee is a low end business process outsourcing company and it is functionally different from all these company which are selected as comparable by the learned transfer pricing officer. Based on these directions the learned assessing officer passed an assessment order u/s 143 (3) read with section 144C of the income tax act on 30/11/2015 wherein the total income of the assessee was computed at INR 3 4158130/–.
4. As the learned assessing officer was not satisfied with the order of the learned dispute resolution panel filed an appeal before us.
5. The learned senior departmental representative vehemently supported the order of the learned transfer pricing officer and stated that the learned dispute resolution panel has erred in directing the learned transfer pricing officer to exclude E Clerx services Ltd and ICRA Techno analytics Ltd as comparable company. She submitted that the functions assessing risk of all these companies which are selected as comparable by the learned transfer pricing officer are the good comparables for determining the arm’s- length price of the international transactions. 6. Despite notice to the assessee, none appeared and therefore the issue is decided on merits of the case as per information available on record. 7. We have carefully considered the rival contentions mentioned in the order of the learned transfer pricing officer and learned dispute resolution panel with respect to the comparable companies as well as the arguments advanced by the ld DR. We have also perused the orders of lower authorities. The learned dispute resolution panel has given a finding that assessee is a low end business process outsourcing company. This profile of the assessee is undisputed and not challenged before us. In view of this we need to consider whether the comparable selected by the learned transfer pricing officer are as having similar functional analysis, assets employed and risk assumed. 8. The ground number 1 of the appeal is general in nature challenging the various comparable. As each of the comparable is considered in other grounds, the ground number 1 is not required to be adjudicated separately and independently and therefore same is rejected and dismissed. 9. By ground number 2 of the learned assessing officer has challenged that when the dispute resolution panel has accepted the Infosys BPO Ltd as the comparable company which is also providing high and ITeS services the learned dispute resolution panel should not have excluded the other comparables. The learned assessing officer has challenged the fact that when the learned dispute resolution panel has retained the Infosys BPO Ltd in the final set of comparables it erred in directing the learned TPO to remove the other high-end ITeS comparable companies. It is apparent that the assessee has also selected the Infosys BPO Ltd at the functionally comparable which has been also accepted by the learned dispute resolution panel and the assessee and the TPO before the lower authorities. The learned departmental representative could not show us any reason to say that Infosys BPO Ltd is not comparable with the assessee. It was also not the facts before the learned dispute resolution panel with respect to challenge to the inclusion of Infosys BPO Ltd is a comparable. The comparability analysis is required to be verified and tested only on the forefront of the functional profile, assets employed and risk assumed by the respective comparable viz a viz assessee. Therefore it is not proper to say that when one comparable has been accepted by all the parties the learned dispute resolution panel has erred in not removing it and accepting the other comparables. When a comparable is not challenged by any of the parties therefore it is not the issue before the learned dispute resolution panel and hence no error can be found in the order of the learned dispute resolution panel in passing any order either removing or including a particular comparable. In view of this ground number 2 of the appeal of the learned assessing officer is dismissed.
The ground number 3 of the appeal is also with respect to stating that the learned dispute resolution panel is not justified in laying down stringent standards of comparability and attempting to identify exact replica of the taxpayer for comparability analysis, whereas the Indian laws in the international jurisprudence recognizes the reality that there cannot be an exact comparable in a given situation without any difference without appreciating that struck stringent civil defeat the purpose of flexibility provided in comparability analysis for determination of arm’s-length price of international transaction. This ground of appeal raises only the principal issue. In the transfer pricing analysis for determining the arm’s-length price of international transaction the functional comparability of the comparable company with respect to the assessee company are required to be tested is an accepted principle. Each of the comparable challenged by the learned assessing officer are separately dealt with in the appeal of the Assessing officer and therefore this ground of appeal is general in nature. In view of this ground number 3 of the appeal of the AO is dismissed.
The 4th ground of appeal
of the AO is against the direction of the learned dispute resolution panel in rejecting Eclerx Services Limited from comparability analysis. The Eclipse services Ltd is engaged in that analytics and process outsourcing services. And further that learned transfer pricing officer is also considered that it is engaged in the business as knowledge process outsourcing company. The allegation of the learned transfer pricing officer is that assessee itself is engaged in KPO activities therefore it is similar to the functions performed by the comparable company. However before us the functional profile of the assessee determined by the learned dispute resolution panel is not under challenge. The learned dispute resolution panel has held that assessee is providing low and ITeS services. Whereas the clocks comparable company is providing the KPO services. It is also an accepted principle that low end BPO service provider cannot be compared with the knowledge process outsourcing unit. Such is also the mandate of the honourable Delhi High Court in case of 377 ITR 533 in Rampgreen solutions private limited vs CIT. The learned departmental representative could not point out any infirmity with respect to the above functional profile of the assessee as well as the functional profile of the comparable company. In view of this we do not find any infirmity in the order of the learned dispute resolution panel in excluding Elerx Services Ltd from the comparability analysis. Accordingly ground number 4 of the appeal of the AO is dismissed.
12. Ground number 5 of the appeal of the AO is against the direction of the learned dispute resolution panel in directing the learned transfer pricing officer to exclude ICRA Techno analytics Ltd (segmental) from the comparability analysis. The learned dispute resolution panel considered that this company is also not functionally comparable with the functions performed by the assessee. The assessee is contended that the comparable companies providing overall business operational solution to it’s globally spread client base by using its own internally developed and customized software and processes. It is further stated that business analytics services are provided by this company. The learned transfer pricing officer rejected the contention of the assessee stating that it is in the similar line of business. The learned senior departmental representative could not dispute before us that the comparable companies not engaged in the business of business analytics and is also not having its own software. The learned dispute resolution panel has also given a categorical finding that there is a variation in the functionality and the far analysis of the comparable. In view of this we do not find any infirmity in the order of the learned dispute resolution panel. Accordingly ground number 5 of the appeal of the AO is dismissed.
13. Ground number 6 and 7 are general in nature and does not require any separate adjudication and hence they are dismissed.
In the result appeal of the assessing officer is dismissed. Order pronounced in the open court on 08/02/2019.