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Income Tax Appellate Tribunal, “K” BENCH, MUMBAI
Before: SHRI SAKTIJIT DEY & SHRI MANOJ KUMAR AGGARWAL
The Captioned appeal by the assessee is directed against the order dated 22nd March 2017, passed by the learned Commissioner of Income Tax (Appeals)–2, Chandigarh, pertaining to the assessment year 2010–11.
2 Agilyst Consulting Pvt. Ltd. (Merged with eClerx Services Ltd.)
The grounds raised by the assessee, though, basically pertain to the addition made of ` 1,15,66,256, on account of transfer pricing adjustment, however, the dispute between the parties is confined to selection of three comparables by the Transfer Pricing Officer and upheld by learned Commissioner (Appeals).
Brief facts are, the assessee is an Indian company and is a wholly owned subsidiary of Agilyst Inc., a company incorporated in United States of America (USA). The assessee is basically a captive service provider to the parent company and provided Information Technology Enabled Service (ITES)to its Associated Enterprises (AE) which includes identification and correction of errors within customer’s accounts, performing back end remote troubleshooting, measuring the experience customers have when interacting with support agents, etc. During the year under consideration, the assessee provided ITES to its AE and earned revenue of ` 13,07,93,056. In its transfer pricing study report, the assessee benchmarked the aforesaid transaction with the AE by adopting Transactional Net Margin Method (TNMM) as the most appropriate method, the assessee selected ten companies as comparables with arithmetic mean of 4.31% as against the margin shown by the assessee of 15.92%. Therefore, the price charged for service rendered was claimed to be at arm's length. Though, the 3 Agilyst Consulting Pvt. Ltd. (Merged with eClerx Services Ltd.)
Transfer Pricing Officer accepted TNMM as the most appropriate method, however, he did not accept most of the comparables selected by the assessee. Further, in course of transfer pricing proceedings, the assessee had furnished a fresh set of comparables, out of which, the Transfer Pricing Officer accepted two. In addition, he added seven fresh comparables. Thus, finally, the Transfer Pricing Officer selected nine companies as comparable with arithmetic mean of 32.35%.By applying the arithmetic mean of the comparables to the operating cost, he determined the arm's length price of the ITES provided to the AE at ` 14,93,09,713. The resultant short fall of ` 1,85,16,657, was treated as the transfer pricing adjustment. The aforesaid adjustment proposed by the Transfer Pricing Officer was added back to the income of the assessee in the assessment order. Against the assessment order so passed, the assessee preferred appeal before the first appellate authority.
The grievance of the assessee before the first appellate authority was against selection of three comparables viz. Accentia Technologies Ltd., TCS e–serve International Ltd. and TCS e–serve Ltd. However, learned Commissioner (Appeals) upheld the selection of the aforesaid comparables. Being aggrieved, the assessee is in appeal before us.
4 Agilyst Consulting Pvt. Ltd. (Merged with eClerx Services Ltd.)
Since the dispute before us is confined to the selection of the aforesaid three comparables, we will directly deal with the submissions by both the parties and render our decision thereon.
Objecting to the selection of this company, the learned Authorised Representative submitted, the company provides diversified knowledge process outsourcing (KPO) services and is a Healthcare Receivables Cycle Management Co. He submitted, the company is providing medical transcription, coding service as well as software products. He submitted, the company has a wide global delivery model and wide geographical customer base. He submitted, the share capital reserve of this company is ` 14 crore as compared to assessee’s share capital reserve of ` 1 lakh. Further, the company has loan fund of ` 29.60 crore, whereas, the assessee has no loans. Thus, he submitted, the company is functionally different from the assessee. He submitted, the company has substantial intangibles in the nature of goodwill, whereas, the assessee does not own any intangible. He submitted, extra ordinary event during the year like acquisition and amalgamation by the company also has impacted the profitability making it incomparable. Drawing our attention to the annual report of the company, he submitted, the fact that it has incurred substantial
5 Agilyst Consulting Pvt. Ltd. (Merged with eClerx Services Ltd.) overseas marketing expenditure of ` 8.94 crore indicates that the company is engaged into marketing activity. Thus, he submitted, the company cannot be treated as comparable. In support, he relied upon the following decisions:– i) PCIT v/s Ameriprise India Pvt. Ltd., dated 19.10.2016 (Del. HC); ii) PCIT v/s United Health Group Information Services Pvt. Ltd., ITA no.1180/2017, dated 21.12.2017 (Del. HC); iii) PCIT v/s B.C. Management Services Pvt. Ltd., [2018] 89 taxmann.com 68 (Del.); iv) PCIT v/s PTC Software India Pvt. Ltd., ITA no.598 of 2016, dated 16.04.2018; v) PCIT v/s BNY Mellon International Operations India Pvt. Ltd., [2018] 93 taxmann.com 363 (Bom.); vi) PCIT v/s Aptara Technology Pvt. Ltd., [2018] 92 taxmann.com 240 (Bom.); vii) OSC Services Pvt. Ltd. v/s DCIT, [2018] 97 taxmann.com 299 (Del.); viii) XL India Business Services Pvt. Ltd. v/s ACIT, [2017] 97 taxmann.com 77 (Del. Trib.); ix) Amba Research India Pvt. Ltd. v/s DCIT, [2016] 67 taxmann.com 342 (Bang. Trib.); x) Schlumberger India Technology Centre Pvt. Ltd. v/s DDIT, ITA no.640/Pun./2014, dated 10.01.2018; xi) Principal Global Services Pvt. Ltd. v/s DCIT, ITA no.323/ Pun./2015, dated 29.11.2017, dated 29.11.2017; xii) ITO v/s Systime Global Solutions Ltd., ITA no.336/Pun./ 2015, dated 31.01.2017;
6 Agilyst Consulting Pvt. Ltd. (Merged with eClerx Services Ltd.) xiii) PCIT v/s Actis Global Services Pvt. Ltd., dated 15.05.2017 (Del. HC); xiv) Evalueserve SEZ (Gurgaon) Pvt. Ltd. v/s ACIT, [2017] 8. Taxmann.com 371 (Del.); xv) Morningstar India Pvt. Ltd. v/s DCIT, ITA no.1520/Del./ 2015, dated 06.05.2019; xvi) C3i Support Services Pvt. Ltd. v/s DCIT, [2016] 68 taxmann.com 378 (Hyd. Trib.); and xvii) Agilent Technologies (International) Pvt. Ltd. v/s ITO, [2018] 91 taxmann.com 59 (Del. Trib.).
The learned Departmental Representative strongly relied upon the observations of the Transfer Pricing Officer and the learned Commissioner (Appeals).
We have considered rival submissions and perused material on record. The annual report of this comparable placed in the paper book indicates that the service provided by the company, such as, medical transcription is in the nature of KPO services. Though, it is into diversified activities, however, segmental information is not available in the annual report of the company. Further, extra ordinary events relating to acquisition and amalgamation in the company might have impacted the profitability. Thus, from the aforesaid analysis of facts it becomes clear that the company is not only functionally dissimilar to the assessee, but various other factors also make this company non– comparable to the assessee. It is relevant to observe, considering the 7 Agilyst Consulting Pvt. Ltd. (Merged with eClerx Services Ltd.)
above narrated facts different Benches of the Tribunal have held that this company is not a comparable to ITES service provider. Pertinently, the decision of the Tribunal in case of Ameriprise India Pvt. Ltd. (supra), B.C. Management Services Pvt. Ltd., BNY Mellon International Operations (supra) and Aptara Technologies Pvt. Ltd. (supra) have been approved by the Hon’ble High Courts. Since, many of these decisions pertained to the very same assessment year, consistent with the view taken in these decisions, we hold that this company cannot be a comparable to the assessee.
TCS e–SERVE LTD.
Objecting to the selection of this company, the learned Authorised Representative submitted, this company is engaged in the business of providing business process management service in the banking and financial sectors. The company is engaged in providing ITES / BPO service primarily to Citi Group entitles globally. He submitted, since the company is an integral part of the Tata Consultancy Services Ltd., there is dissimilarity in the scale of operation with the assessee and further, the company has a strategy to build on its ‘Full Services Offering’, that offer global customers an integrated portfolio of services ranging from information technology services to BPO services. He submitted, the company provides wide
8 Agilyst Consulting Pvt. Ltd. (Merged with eClerx Services Ltd.) range of financial products and enterprise support functions such as financial information processing, customer conduct, business process management and analytics. He submitted, operations of the company comprise of transaction processing and other services. Thus, he submitted, the company being functionally different, cannot be a comparable. Further, he submitted, the company owns substantial intangibles which is not the case with the assessee. He submitted, even though the company is in ITES segment, however, it has only one segment of banking and financial service activity. Therefore, it cannot be treated as comparable to the assessee. In support, he relied upon the following decisions:– i) PCIT v/s United Health Group Information Services Pvt. Ltd., dated 21.12.2017 (Del. HC); ii) PCIT v/s B.C. Management Services Pvt. Ltd., [2018] 89 taxmann.com 68 (Del.); iii) PCIT v/s Actis Global Services Pvt. Ltd., ITA no.94/2017, dated 15.05.2017 (Del. HC); iv) OSC Services Pvt. Ltd. v/s DCIT, [2018] 97 taxmann.com 299 (Del.); v) Vertex Customers Services India Pvt. Ltd., [2017] 88 taxmann.com 286 (Del. Trib.); vi) Evalueserve SEZ (Gurgaon) Pvt. Ltd. v/s ACIT, [2017] 8. Taxmann.com 371 (Del.); vii) Knoah Solutions Pvt. Ltd., [2016] 73 taxmann.com 79 (Hyd. Trib.);
9 Agilyst Consulting Pvt. Ltd. (Merged with eClerx Services Ltd.) viii) C3i Support Services Pvt. Ltd. v/s DCIT, [2016] 68 taxmann.com 378 (Hyd. Trib.); ix) Agilent Technologies (International) Pvt. Ltd. v/s ITO, [2018] 91 taxmann.com 59 (Del. Trib.). x) H&S Software Development & Knowledge Management Centre Pvt. Ltd., [2018] 91 taxmann.com 358 (Del. Trib.); xi) Ominiglobe Information Technologies India Pvt. Ltd., [2017] 88 taxmann.com 315 (Del. Trib.); xii) Infor India Pvt. Ltd., [2017] 85 taxmann.com 202 (Hyd. Trib.); xiii) Avineon India Pvt. Ltd., [2017] 84 taxmann.com 243 (Hyd. Trib.); xiv) Morningstar India Pvt. Ltd. v/s DCIT, ITA no.1520/Del./ 2015, dated 06.05.2019; xv) Kronos Solutions India Pvt. Ltd., [2017] 88 taxmann.com 310 (Del. Trib.); and xvi) Exevo India Pvt. Ltd., [2016] 72 taxmann.com 339 (Del. Trib.).
The learned Departmental Representative strongly relying upon the observations of the Transfer Pricing Officer and learned Commissioner (Appeals) submitted, this company being functionally similar to the assessee should be treated as comparable.
We have considered rival submissions and perused material on record. We have also applied our mind to the decisions relied upon. Undisputedly, this company is a subsidiary of Tata Consultancy Services Ltd. and has the benefit and advantage of Tata Brand. It also 10 Agilyst Consulting Pvt. Ltd. (Merged with eClerx Services Ltd.)
appears from the financial statement of the company that it has contributed towards Tata Brand equity. Thus, the brand value of Tata Group certainly has an impact on the pricing and profitability of the company, which may not be available with the assessee. It also appears that the company owned substantial intangible. Considering the aforesaid factors, in various decisions of the Tribunal it has been held that this company cannot be treated as comparable. On a careful examination of the aforesaid decisions, we have noticed that a number of these decisions pertain to the impugned assessment year as well. Thus, consistent with the view taken by the Co–ordinate Benches as regards comparability of this company, we are inclined to hold that this company cannot be treated as comparable to the assessee. In this context, we may also refer to the decision of the Tribunal, Delhi Bench, in Morning Star India Pvt. Ltd. v/s DCIT, ITA no.1520/Del./2015, dated 6th May 2019.
TCS e–SERVE INTERNATIONAL LTD.
Objecting to the selection of this company, the learned Authorised Representative submitted, this company provides broad range of services that cater to the process management requirements of wide range of financial products and enterprise support functions including financial information processing (data processing and 11 Agilyst Consulting Pvt. Ltd. (Merged with eClerx Services Ltd.)
customer contact and transaction processing service). He submitted, the company is engaged in the business process outsourcing services to the banking and financial service industry and transport, tourism and hospitality. He submitted, the information available in public domain indicate that the company has got two segments, whereas, the Transfer Pricing Officer has taken entity wide results. Further, he submitted, the company owned substantial intangible and has un– allocable expenditure. Thus, he submitted, for the aforesaid factors, the company cannot be treated as comparable. In support, the learned Authorised Representative relied upon the following decisions:– i) OSC Services Pvt. Ltd. v/s DCIT, [2018] 97 taxmann.com 299 (Del.); ii) Vertex Customer Services India Pvt. Ltd., [2017] 88 taxmann.com 286 (Del. Trib.); iii) Evalueserve SEZ (Gurgaon) Pvt. Ltd. v/s ACIT, [2017] 8. Taxmann.com 371 (Del.); iv) Morningstar India Pvt. Ltd. v/s DCIT, ITA no.1520/Del./ 2015, dated 06.05.2019; v) Knoah Solutions Pvt. Ltd., [2016] 73 taxmann.com 79 (Hyd. Trib.); and vi) C3i Support Services Pvt. Ltd., [2016] 68 taxmann.com 378 (Hyd. Trib.).
The learned Departmental Representative strongly relied upon the observations of the Transfer Pricing Officer and learned Commissioner (Appeals).
12 Agilyst Consulting Pvt. Ltd. (Merged with eClerx Services Ltd.)
We have considered rival submissions and perused material on record. We have also applied our mind to the decisions relied upon. On perusal of the material on record, it is evident, the company belongs to the Tata Group and has the benefit and advantage of Tata Brand. Further, the annual report of the company reveals that it is providing diversified service which is not the case with the assessee. It has also made contribution towards Tata Brand Equity. All these factors make this company functionally different from the assessee. Our aforesaid view is duly supported by the decisions cited before us by the learned Authorised Representative, a number of which pertain to the impugned assessment year. Thus, following the consistent view of the Tribunal on the issue of comparability of this company, we hold that this company cannot be a comparable to the assessee. Accordingly, we direct the Assessing Officer to compute the arm's length price of the international transaction relating to provision of ITES to the AE keeping in view our observations hereinabove. Grounds raised are partly allowed.