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Income Tax Appellate Tribunal, BANGALORE BENCHES : “C”, BANGALORE
Before: SHRI B.R.BASKARAN & SMT.BEENA PILLAI
O R D E R
PER SMT BEENA PILLAI, JUDICIAL MEMBER Present appeal has been filed by assessee against order dated 04-10- 2016 passed by Ld. CIT (A)-5, Bangalore for assessment year 2011-12 on following revised grounds of appeal filed by assessee dated 09/11/18. In conformity with Rule 8 of Income-tax Appellate Tribunal Rules, 1963. The grounds of appeal raised by the Appellant are without prejudice to one another.
ITA No.155(B)/2017 2 That on the facts and circumstances of the case and in 1. law, the learned AO and the learned CIT (A) erred in; upholding inclusion of Acropetal Technologies Ltd (Segment) selected by the learned TPO, whereas the same should be excluded for the reasons of functional dissimilarity and otherwise failing the test of comparability; [corresponding to ground no. 3 d] That on the facts and circumstances of the case and in 2. law, the learned AO and the learned CIT (A) erred in; upholding inclusion of E-Infochips Ltd selected by the learned TPO, whereras the same should be excluded for the reasons of functional dissimilarity and otherwise failing the test of comparability; [corresponding to ground no. 3 d] That on the facts and circumstances of the case and 3. in law, the learned AO and the learned CIT (A) erred in; upholding inclusion of ICRA Techno Analytics Ltd selected by the learned TPO, whereas the same should be excluded for the reasons of functional dissimilarity and otherwise failing the test of comparability; [corresponding to ground no. 3 d] That on the facts and circumstances of the case and 4. in law, the learned AO and the learned CIT (A) erred in; upholding inclusion of Infosys Ltd selected by the learned TPO, whereas the same should be excluded for the reasons of functional dissimilarity and otherwise failing the test of comparability; [corresponding to ground no. 3 d] That on the facts and circumstances of the case and 5. in law, the learned AO and the learned CIT (A) erred in; upholding inclusion of Persistent Systems Limited selected by the learned TPO, whereas the same should be 3 excluded for the reasons of functional dissimilarity and otherwise failing the test of comparability; [corresponding to ground no. 3 d] That on the facts and circumstances of the case and 6. in law, the learned AO and the learned CIT (A) erred in; upholding inclusion of Sasken Communication Technologies Limited selected by the learned TPO, whereas the same should be excluded for the reasons of functional dissimilarity and otherwise failing the test of comparability; [corresponding to ground no. 3 d] That on the facts and circumstances of the case and 7. in law, the learned AO and the learned CIT (A) erred in; upholding inclusion of Tata Elxsi Limited (Segment) selected by the learned TPO, whereas the same should be excluded for the reasons of functional dissimilarity and otherwise failing the test of comparability; [corresponding to ground no. 3 d] 8. That on the facts and circumstances of the case and in law, the learned AO and the learned CIT (A) erred in; upholding exclusion of company LGS Global Limited, whereas the same should be included for the reasons of functional similarity and otherwise passing the test of comparability; [corresponding to ground no. 3 d] That on the facts and circumstances of the case, 9. and in law the learned AO and the learned CIT (A) erred in; upholding exclusion of company Spry Resources India Limited, whereas the same should be included for the reasons of functional similarity and otherwise passing the test of comparability; [corresponding to ground no. 3 d] That on the facts and circumstances of the case and 10. in law, the learned AO and the learned CIT (A) erred in; 4 upholding exclusion of company Thinksoft Global Services Limited, whereas the same should be included for the reasons of functional similarity and otherwise passing the test of comparability; [corresponding to ground no. 3 g]
That on the facts and circumstances of the case and in law, the learned AO and the learned CIT (A) erred in; upholding exclusion of company Akshay Software Technologies Limited, whereas the same should be included for the reasons of functional similarity and otherwise passing the test of comparability; [corresponding to ground no. 3 d] 12.That on the facts and circumstances of the case and in law, the learned AO and the learned CIT (A) erred in; upholding rejection of FCS Software Solutions Limited selected by the learned TPO as part of show cause notice which passes the TPO's test of comparability but later excluded in the transfer pricing order. [corresponding to ground no. 3 d] That the Appellant craves leave to add to and/or to alter, amend, rescind, modify the grounds herein above or produce further documents before or at the time of hearing of this Appeal”.
Brief facts of the case are as under: 2. Assessee filed its return of income for year under consideration declaring total income of Rs.10,11,87,793/-. The return was processed under section 143(1) and case was selected for scrutiny. Notice under section 143(2) was issued to assessee in response to which representative of assessee appeared before Ld.AO and filed requisite details as called for.
ITA No.155(B)/2017 5 2.1 Ld.AO observed that assessee is a company engaged in business of software development. As assessee entered into international transaction with its associated enterprise, issue was referred to Ld.TPO under section 92C of the Act. 2.2 On receipt of reference, Ld.TPO issued notice to assessee calling upon to file economic details of international transaction between assessee and AE in Form-3CEB. From details filed by assessee, Ld.AO observed that assessee had following international transaction with its AE: International transaction Paid (Rs.) Receipt from software and hardware development services 231,839,586 Receipt of commission 159,460,520 Import of hardware and software 190,912,730 Reimbursement of expenses 11,516,601 Recovery of expenses 5,515,038 2.3 Ld.TPO observed that assessee used TNMM as most appropriate method and OP/OC as PLI and determined margin to be 15% for software and hardware development service segment. It was observed that assessee used following 16 comparables with an average margin of 13%. Assessee thus held its transaction to be at arms length price. Sl.No Name of the company 1 Akshay Software Technologies 2 Bells Softech Ltd., 3 FCS Software Solutions Ltd. 4 Helios & Matheson Information Technology Ltd., 5 LGS Global Ltd 6 Mind tree Ltd.., 7 Omni Ax’s Software Ltd., 8 Persistent Systems & Solutions Ltd. 6 9 Quinnox Consultancy Services 10 Reliance Info Solutions Pvt.Ltd. 11 Spry Resources India Pvt.Ltd., 12 CCE Software Pvt.Ltd., 13 Allied Digital Services Ltd. 14 Octant Industries Ltd., 15 Tec process Solutins Ltd 16 Maximaa Systems Ltd. 2.4 Ld.TPO dissatisfied with economic analysis, filed by assessee, conducted fresh search and by applying various filters rejected comparables selected by assessee. Ld.TPO thus arrived at a set of following 13 comparables with average margin of 24.82% Sl.No. Name PLI 1 Acropetal Technologies Ltd (Seg.) 31.98% 2 e-Zest Solutions Ltd(from capitaline) 21.03% 3 E-Infichips Ltd 56.44% 4 Evoke (capitaline) 8.11% 5 ICRA Techno Analytics Ltd.(in ooo) 24.83% 6 Infosys Ltd. 43.39% 7 Larsen & Toubro Infotech Ltd. 19.83% 8 Mindtree Ltd(seg.) 10.66% 9 Persistent Systems & Solutions Ltd 22.12% 10 Persistent Systems Ltd 22.84% 11 R S Software (India) Ltd. 16.37% 12 Sasken Communication Technologies Ltd 24.13% 13 Tata Elxsi Ltd.(Seg.) 20.91% Average margin 24.82% 2.5 He thus proposed an adjustment of Rs.1,65,11,013/- being shortfall. Ld.AO restricted working capital adjustment in respect of ITA No.155(B)/2017 7 comparables 1.63% and denied any adjustment on account of risks to assessee. 2.6 As distribution segment was in accordance with independent search carried out by Ld.AO, no adverse inference was drawn regarding the same.
Aggrieved by order of Ld.TPO/AO, assessee filed appeal before Ld.CIT (A), who upheld action of Ld.AO/TPO.
Aggrieved by order of Ld.CIT (A), assessee is in appeal before us now. Ground no.1 to 12 4.1 At the outset, Ld.AR submitted that, following comparables deserves to be excluded on functional dissimilarities: Acropetal Technologies Ltd (segment-IT services) E- Infochips Ltd ICRA Techno Analytics Ltd Infosys Ltd Persistent Systems Ltd Sasken Communication Technologies Ltd Tata Elxsi Ltd (segmental) It is also been submitted that following comparables are to be included: LGS global Ltd Spry Resources India Ltd Thinksoft Global Services Ltd FCS software solutions Ltd Akshay Software Technologies 8 4.2 Before we undertake comparability analysis it is sine qua non to understand the functions performed, assets employed and risks assumed by assessee under software development service segment. In TP study, placed by assessee at page 509-564 FAR analysis has been carried out as under: Functions: 4.3 It has been submitted that assessee provides software and hardware development services to NI U.S., operating as an independent contractor. The foreign AE compensates assessee on cost plus markup basis for services rendered in accordance with agreement entered into between assessee and NI US. It is also been submitted that all technology developed by assessee would be owned by NI US. It has been submitted in TP study that, as per service agreement for software and hardware development between the parties, assessee develops and delivers hardware, software and related materials to NI US in respect of work delegated by NI US to assessee, based on skill set of engineers with assessee. It has been submitted that approach to software and hardware development begins at the system level requirement and progress is through analysis design coding testing and maintenance. Further commencement of a project by assessee requires approval of research and development manager and that of other relevant managers in NI US. The engineering Centre manager generates a document, detailing various steps to be followed by assessee as to specifications, design etc. The document is code developed by assessee and NI US. Employees of assessee are given training on relevant technologies and product. All projects are closely reviewed by NI US and assessee performs various acceptance test before it is delivered to NI US. (B)/2017 9 4.4 Thus in TP study software design and development team of assessee provides referred services in coordination with specifications, directions and instructions of NI US. According to agreement all intellectual property developed by assessee would belong to NI US. Assets employed 4.5 Assessee uses process, technical data software, quality standards etc., owned by NI US for its provision of service. Except for routine tangibles assets, assessee do not own any intangibles in respect of software, hardware developed by assessee. Risks assumed: 4.6 Assessee do not get exposed to market risk, product/service liability risk, credit risk. In the present facts of case, assessee is not exposed to foreign exchange risk also, as invoices are raised in Indian rupees. 4.7 Thus assessee has been characterised as a contract service provider which assumes less than normal risk associated with carrying out software and hardware development services. On the basis of above, we shall undertake the comparability analysis in respect of comparables alleged for exclusion by assessee. Acropetal Technologies Ltd (segment-IT services) 5. Ld.AR submitted that this company, operates in three segments and segmental results are not available placing reliance upon annual reports placed at page 585-664 of paper book. It has been submitted that revenue recognition is from export sales. It has been submitted that this comparable provides end to end solutions to its customers and is committed to delivering cost-effective software product, services and solutions to its customers. It is also been submitted that this (B)/2017 10 comparable does not satisfy service revenue filter which has been applied by Ld. TPO. 5.1 Ld. CIT DR placed reliance upon orders passed by authorities below. We have perused submissions advanced by both sides in light of the records placed before us. 5.2 It is observed from annual report at page 640 of paper book that the income has been earned by this company from 3 segments being engineering design service segment, information technology service segment and healthcare segment. Admittedly, revenue from software development service segment is only 81.40 crores out of total operating revenue of Rs.141 crores. Thus, in our view this company does not satisfy service revenue filter of more than 75%. It has been submitted by Ld.AR that this comparable has been excluded by following decisions of co-ordinate bench of this Tribunal on identical reasoning.
Finestra software solutions India private limited in ITA(TP) A No. 529 & 491/B/2016 for assessment year 2011-12, order dated 02/05/2018; 2. Applied Materials Pvt.Ltd., in ITA(TP) A No.17 and 39/B/2016 for assessment year 2011-12, order dated 21/09/16. Respectfully following the same we direct Ld. AO/TPO to exclude this company from the finalist. E- Infochips Ltd Ld.AR, on the other hand placed reliance upon decision of coordinate bench of this Tribunal in case of Autodesk India Pvt Ltd. vs ACIT ITA No.155(B)/2017 11 (supra) wherein, E- Infochips Ltd was excluded for failing service income filter. Ld.CIT DR submitted that Ld.TPO while analysing comparables observed that this company has revenue from software development up to 88% and therefore should be included 6. We have perused submissions advanced by both sides in light of records placed before us. It is observed that, this Tribunal in case of Autodesk India Pvt Ltd. vs ACIT (supra) excluded E- Infochips Ltd., by following view taken by this Tribunal in case of Comscop Network (India) Pvt. Ltd., vs ITO in IT (TP) A/Bang/2016 dated 22/02/17 wherein, this company was excluded for reason that there is no segmental information regarding diverse functions performed by this company, and that there was major fluctuation in its profits, which influenced turnover of this company. Further it is observed that in case of DCIT vs M/s CGI Information Systems and Management Consultations Pvt.Ltd., in for assessment year 2011-12 vide order dated 06/04/18 dealt with identical objection raised by Ld. CIT DR before as under: “24. As far as ground No. 4 raised by revenue is concerned, the said ground of appeal
is weak and any event comparability of companies that were excluded by the DRP were on valid grounds contemplated by the relevant statutory provisions of the act and rules. As far as ground No. 5 in revenue’s appeal is concerned, the revenue seeks to challenge the exclusion of AE Infotech Ltd. On the ground that it failed direct software service income filter at 75%. At the outset, the assessee submits that E Infotech Ltd was excluded by the DRP on the ground that: (i) no segmental information is regarding its diverse functions is (B)/2017 12 available; (ii) it failed the software service income filter and 75%; (iii) there were major fluctuations in profit and turnover every years which seems to be influenced by extraordinary/peculiar circumstances; and (iv) there is a presence of inventory (page 10 and 11 of the DRP’s directions). The revenue, in its appeal has challenged its exclusion only on the 2nd ground. In other words, the revenue has not challenged its exclusion on the other grounds stated hereinabove and thus its exclusion on these grounds have attained finality and cannot be disturbed by this Hon’ble Tribunal. Even otherwise, we are of the view that the DRP rightly arrived at the finding that companies software development service revenue for FY 2010-11 was less than 75% of its total operating revenue for the year. Thus the above action of the DRP in rejecting the above companies correct.” Respectfully following the view taken by coordinate bench of this Tribunal in DCIT vs M/s.CGI Information Systems and Management Consultations Pvt.Ltd (supra), we direct Ld.TPO to exclude this company. ICRA Techno Analytics Ltd 7.This comparable has been included by Ld. TPO and has been objected by assessee for the reason that it is engaged in diverse range of IT solutions services. It has been submitted by Ld. Counsel that this company is not a full-fledged software development company and provides services among its other wide array of IT solutions like business analytics, IT engineering and business process outsourcing etc. Placing reliance on annual report placed in paper book at page 1008-1043, Ld. Counsel submitted that this company is functionally dissimilar with that of assessee and that the service segment considered by Ld.TPO contains revenues from all other business (B)/2017 13 activities such as engineering services, Web development and hosting, business analytics and BPO services performed by this company. 7.1 Ld. CIT DR placed reliance upon views taken by Ld.TPO and objected for its exclusion.
7. We have perused submissions advanced by both sides in the light of records placed before us. 7.2 At page 832-926 annual report paper book, it is observed that this company derives its revenue from services consisting of revenues earned from software development and consultancy, licensing and sublicensing fees, Web development and hosting which is recognised to the extent of service performed. In profit and loss account, it is observed that income has been received from services and sales, without there being bifurcation in order to understand component of income earned by this company from software development exclusively. Thus it is amply clear that this company is engaged in diversified activities of software development for which segmental reporting has not been provided. We draw support for exclusion of this company from the decision of coordinate bench of this Tribunal in case of DCIT vs Electronics for Imaging India Pvt.Ltd (supra) and ACIT vs Broadcom India Research (P) Ltd (supra) for exclusion of this company. Respectfully following the same we direct Ld. AO/TPO to remove this comparable from final list. Infosys Ltd
8. This company has been included by Ld.TPO which is objected by assessee due to very high turnover, which is more than 200 crores. It has been submitted by Ld.Counsel that this company for during year ending 31/03/10 had turnover of about Rs.21,140 crores, which is (B)/2017 14 much higher than that of assessee. Further she submitted that this company is a joint and software development space while assessee is a small captive service provider, providing exclusive services only to its AE’s. It is also been submitted by Ld.Counsel that this company has heavy R&D expenses and thus has intangibles associated with it. 8.1 Ld. CIT DR placed reliance upon the order of Ld. TPO. We have perused submissions advanced by both sides in the light of the records placed before us. 8.2 It is observed that this company provides solutions that span entire software run life-cycle encompassing technical consulting, design, developed meant, re-engineering, maintenance, systems integration, package evaluation and implementation, testing and infrastructure management services. With such diversified activities carried on this company, it is not appropriate to compared it with a one-to-one service provider like assessee. 8.3 It is observed that in case of Agnity India Technologies Pvt Ltd reported in (2015) 58 Taxmann.com 167 Delhi benches of this Tribunal after analysing various aspects took a view that this company is not a fit comparable for a captive service provider . The said view has been upheld by Hon’ble Delhi High Court wherein, Hon’ble Court upholding the view taken by the Tribunal, observed that company having brand value as well as intangible assets cannot be compared with an ordinary entity who provide captive services. Respectfully following the decisions relied upon and cited hereinabove, we direct Ld. TPO to exclude this company from the finalist. Persistent Systems Ltd (B)/2017 15 9.This company has been included by Ld.TPO and assessee objects to the same as this company is engaged in rendering outsourced product development, as against software development services. It has been submitted that this is not functionally similar with that of assessee. 9.1Ld.CIT DR on the contrary supported view of authorities below and opposed exclusion. We have perused submissions advanced by both sides in light of the records placed before us. 9.2 It is observed that annual report of this company is placed at 1253 -1444 of paper book wherein, Schedule 15 forming part of profit and loss account shows income from sale of software services and products, however there is no separate segmental information in respect of these 2 segments. Thus it is clear that this company is earning revenue from activities which includes licensing of products, royalty on sale of products as well as income from maintenance contracts etc which could not be considered functionally similar with that of assessee holders only carrying out software development service at the behest of its AE’s on a captive basis. Similar view has been taken by this Tribunal in case of DCIT vs Electronics for Imaging India Pvt.Ltd (supra). Respectfully following the same we direct Ld.AO/TPO to exclude this company from the final list. Sasken Communication Technologies Ltd 10.It has been submitted that this company has been included by TPO even after various objections raised by assessee. Ld.AR submitted that this company recognises revenue from sale of product and revenue from software services include network engineering services. It is also been submitted that this company offers combination of (B)/2017 16 research and development consultancy, wireless software products and services. The segmental details of the sale software product and revenue from software services are not available. 10.1 On the contrary Ld. CIT DR placed reliance upon order passed by Ld.TPO. We have perused submissions advanced by both sides in the light of records placed before us. 10.2.Assessee has placed annual report of this company at page 1529-1652 of paper book. It is observed at page 1619 of paper book wherein the segment policy and identification of segments has been details in respect of this company which reads as under: “Identification of segment: The group is focused in the telecommunication space. The risk and returns of the group are predominantly determined by the nature of the solutions offered to its customers, which may be in the form of products or services. The primarily reporting segments are software services, software products, network engineering services and automotive, utilities and industrial.” 10.3 The revenue recognition as expressed at page 1615 is from software services, product and technology licensing and installation and commissioning services. Assessee also receives revenue from royalties which is basically related to the product segment, wherein products have been licensed in earlier years. It is also observed that this company owns substantial intellectual properties in form of patents regarding the products developed by assessee.. It also owns revenue from cross licensing of such patents developed and owned by assessee. (B)/2017 17 10.4 Thus in our considered opinion the functions performed by this company cannot be compared to limited functions performed by assessee under supervision of its AE without having any ownership of intellectual property rights that gets generated in the process of rendering of service. We thus direct Ld.TPO to exclude this comparable from the final list. Tata Elxsi Ltd (segmental)
11. This company was a comparable selected by Ld.TPO. Before Ld.TPO, assessee objected for inclusion of this company in the set of comparables on several counts like, functional dis-similarity, significant R&D activity, brand value, size, etc. Ld.TPO, however, rejected contention put forth by assessee and included this company in the set of comparables. In submissions made assessee quoted relevant portions from the Annual Report of the company to this effect. In view of this, the learned Authorised Representative pleaded that this company be excluded from the list of comparables. 11.1 On the contrary Ld. CIT DR supported view taken by Ld.CIT (A) in including this company in the list of comparables. We have heard both parties and carefully perused and considered material on record. 11.2 From the details on record, we find that this company is predominantly engaged in product designing services and not purely software development services. The details in Annual Report show that segment “software development services” relates to design services and are not similar to software development services performed by assessee. (B)/2017 18 It is observed that Mumbai Tribunal in case of Telecordia Technologies India Pvt. Ltd. V ACIT (ITA No.7821/Mum/2011) held that Tata Elxsi Ltd. is not a software development service provider and therefore, it has been submitted that this company is not functionally comparable with assessee. In this context relevant portion of this order is extracted and reproduced below :- “ …. Tata Elxsi is engaged in development of niche product and development services which is entirely different from the assessee company. We agree with the contention of the learned Authorised Representative that the nature of product developed and services provided by this company are different from the assessee as have been narrated in para 6.6 above. Even the segmental details for revenue sales have not been provided by the TPO so as to consider it as a comparable party for comparing the profit ratio from product and services. Thus, on these facts, we are unable to treat this company as fit for comparability analysis for determining the arm’s length price for the assessee, hence, should be excluded from the list of comparable portion.” As can be seen from the extracts of the Annual Report of this company produced before us, the facts pertaining to Tata Elxsi have not changed from Assessment Year 2007-08 to Assessment Year 2008-09. We, therefore, hold that this company is not to be considered for inclusion in the set of comparables in the case on hand. It is ordered accordingly.” Respectfully following decision of coordinate bench of this Tribunal, we direct Ld.AO/TPO to exclude this comparable from final list. Accordingly, ground no.1 to 7 stands allowed.