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Income Tax Appellate Tribunal, “C” BENCH: KOLKATA
Before: Shri A. T. Varkey, JM & Dr. A.L. Saini, AM]
ORDER Per Shri A.T.Varkey, JM:
This is an appeal preferred by the assessee against the action of the Assessing Officer dated 25.10.2017 u/s 144C r.w.s. 143(3) of the Income Tax Act, 1961 (hereinafter ‘the Act’) for Assessment Year (hereinafter ‘AY’) 2013-14.
“1. Atlas Healthcare Software India Private Limited (“the appellant”) is an Indian company engaged in the business of providing software development services. The appellant is a captive software service provider and caters to the requirements of its Associated Enterprise (“AE”). During the previous year relevant to the assessment year 2013-14, the appellant had provided software development services to its AE for Rs. 12,89,90,091/-. The Assessing Officer in his order dated 25.10.2017, passed after directions dated 28.08.2017 of the Dispute Resolution Panel (“DRP”), made a transfer pricing adjustment of Rs. 1,44,07,989/- to the appellant’s income. Being aggrieved, the appellant preferred the instant appeal before this Hon’ble Tribunal.
The appellant in its Transfer Pricing Study Report had benchmarked the transactions with its AE by applying “Comparable Uncontrolled Price” method (“CUP”) and in this regard used the transaction between its AE and Inteq Software Ltd. as an Internal CUP. However, the Transfer Pricing Officer (“the TPO”) rejected CUP as the most appropriate method and instead applied the Transactional Net Margin Method Assessment Year: 2013-14 M/s. Atlas Healthcare Software India Pvt. Ltd. (“TNMM”); and selected certain companies as comparables. In the proceedings before the DRP, the appellant objected to the adoption of TNMM as the most appropriate method and reiterated its submissions on CUP as being the most appropriate method. Without prejudice, the appellant also objected to the comparables selected by the TPO and proposed other comparables. The DRP rejected the submissions of the appellant on the selection of the most appropriate method but gave limited relief with regard to selection of comparables and computation of margin.
3. The contentions in the appeal, inter alia, are that CUP is the most appropriate method; in any event, the revenue’s comparables under TNMM should be rejected, the assessee’s comparables be accepted and the arm’s length price be correctly determined.”
2. The ld. Counsel Sr. Advocate, Mr. J.P. Khaitan submitted that, the transfer pricing adjustment cannot be sustained, even if arm’s length price (‘ALP’ for short) is computed as per Transactional Net Margin Method (‘TNMM’ for short), though the assessee challenges TNMM as Most Appropriate Method (‘MAM’ for short). He submitted that the assessee’s stand is that Comparable Uncontrolled Price Method (‘CUP’ for short) is the MAM. He requested that this issue as to which is the MAM be open for adjudicating at a latter year when the occasion arises. He submitted that, if certain comparable companies are excluded from the list of comparable companies on merits for the computation of ALP and if Working Capital Adjustment (‘WCA’ for sort) is provided, then the ALP will be within the range of ±5% margin.
Ld. Sr. Counsel submitted that the following companies which were considered as comparables by the TPO, while computing the ALP, have to be excluded, on merits as they are not comparable due to various reasons.
He submitted that the company, Axit IT & T Limited has to be excluded as this company has discontinued its software development services since December, 2010 and drew our attention to page no. 7 of the printed accounts of the said company. He also submitted that in assessee’s own case for AY 2011-12, this Tribunal was pleased to take note of the contentions of the assessee and finding it to be correct, was pleased to direct that this company be excluded from the list of comparable companies and drew our attention to page no. 5 of the order in assessee’s own case for AY 2011-12 in order dated 08.11.2019.
Assessment Year: 2013-14 M/s. Atlas Healthcare Software India Pvt. Ltd. 5. He also submitted that Zylog Systems (India) Limited is also functionally different and need to be eliminated from the list of comparable companies as directed by the Tribunal in assessee’s own case for AY 2010-11 (supra).
He also submitted that E-Infochips Limited was also functionally different since it derives revenue from diversified activities and that the company is involved in the sale of products as is evident from the annual report wherein the company has reported cost of materials consumed and changes in inventories of finished goods/work-in progress and stock-in trade and drew our attention to the case of M/s. Labvantage Solution Pvt. Ltd. (AY 12-13 & 13-14)[ITA Nos. 927 & 2400/Kol/2017] order dated 11.05.2018 wherein the assessee was also enabled captive software development to its AE wherein the Tribunal was pleased to exclude the same from the list of comparable companies and drew our attention to page no. 71 of the paper book(13 of the order) and therefore, he pleaded that the said company should be excluded from the comparables.
In the case of Thirdware Solutions Limited he submitted that the said company is also functionally different and there is unavailability of segmental information. It is also involved in the sale of products other than software development services. Thus the functional profile of the assessee is different and drew our attention to the annual report page 381 of paper book vol. 1 and page 35 of CPB (Convenience Paper Book) to show that segmental break up of revenue attributable to software development services and ITeS is not available in the case of Thirdware. Therefore, he prays for exclusion of this company also and he drew our attention to the decision in the case of Philips India Limited [ITA No. 2489/Kol/2017 AY 2013-14] wherein Tribunal taking note that segmental break up of revenue is not available in the case of Thirdware Solutions Limited at page no. 49 & 50 of the order and ordered its exclusion.
In the case of Infinite Computer Solutions (India) Limited he submitted that as per the annual report of the company it is involved in the provision of information technology services of Application management, Infrastructure management, Product engineering services, Next-generation messaging platforms, Enterprise mobility
Assessment Year: 2013-14 M/s. Atlas Healthcare Software India Pvt. Ltd. solutions to the telecom, Healthcare and Financial services sectors, R&D and Intellectual property leveraged solutions and related IT services and drew our attention to the annual report placed at page no. 508 & 593 of paper book vol. 2 and page no. 45 & 50 of CPB and also it fails the RPT fixed by the TPO and the RPT goes to 47.01% of the operating revenue when the filter applied by the TPO was 20% of the operating revenue in the case of the assessee.
Per contra on the issue of exclusion and inclusion of various companies from the list of comparable companies for the purpose of computation of the ALP, the ld. DR submitted that assessee cannot merely rely on the decision in it’s (assessee’s) own case for AY 2011-12 and in the case of Nomura Research Institute Financial Technologies India (P) Ltd.(supra) which according to him is not sufficient; and that the assessee has to demonstrate on facts as to how their decisions are applicable to it in this assessment year. He relied on the order of the TPO as well as the DRP on each of the disputed comparables and argued that the decision taken by the DRP be upheld. He submitted that the argument of the assessee that Related Party Transaction (‘RPT’ for short) filter has been wrongly applied, be tested by restoring the issue to the file of the AO for fresh adjudication if need be.
Rival contentions heard. On a careful consideration of the facts and circumstances of the case, perusal of the papers on record and the orders of the authorities below, as well as case law cited we hold as follows.
Both the parties agreed that the Tribunal need not adjudicate the issue whether CUP or TNMM is the MAM for determination of ALP for the assessee company’s international transactions in this appeal and that the issue may be left open for adjudication in an appropriate year. Thus we proceed to consider the issue of inclusion and exclusion of companies from the list of comparable companies determined by the TPO for the determination of the ALP.
i. Axit IT & T Ltd.: We note that in assessee’s own case for AY 2011-12 the Tribunal held as under:
Assessment Year: 2013-14 M/s. Atlas Healthcare Software India Pvt. Ltd. “Consistent with the view taken by the coordinate Bench of the Tribunal in the case of Nomura Research Institute Financial Technologies India (P) Ltd. (supra) we direct this company be excluded from the list of comparable companies for the reason that this company provides software services. The RPT is 43.18% of the operating revenue while a filter of 20% has been applied by the TPO. The TPO wrongly applied the entire revenue of ₹37.16 crores as from software services whereas the fact is that only ₹3.01 crores was from software services and the balance is ₹34.15 crores from engineering design charges.”
Moreover, we also note that this company has stopped its software business from December, 2010. Therefore this company is any way functionally different (page no. 7 of printed accounts) for this assessment year. Respectfully following the decision of this Tribunal in assessee’s own case for AY 2011-12 and since no change in facts of law could be brought to our notice, we direct that this company be excluded from the list of comparable companies. ii. Zylog Systems (India) Ltd.: We note that Tribunal has in assessee’s own case for AY 2010-11 held as under: “Consistent with the view taken by the coordinate Bench of the Tribunal in the case of Alcatel-Lucent India Ltd. (supra) we direct this company be excluded from the list of comparable companies for the reason that this company provides broadband services and wireless internet-based communication services as well as enterprise computing, mobile computing. Employee cost filter of 25% is not met as the assessee’s employee cost percentage is only 20.14%.”
Respectfully following the decision of this Tribunal in assessee’s own case for AY 2010-11 and since no change in facts of law could be brought to our notice, we direct that this company be excluded from the list of comparable companies. iii. E-infochips Bangalore Ltd.: We note that the company derives revenue from diversified activities and that the company is involved in the sale of products which is evident from the annual report wherein the said company has reported cost of materials consumed and changes in inventories of finished goods/work- in progress and stock-in trade (annual report page 366 of paper book vol. 1 and page 32 of CPB) [Philips India Limited (supra) page 71 of paper book] and also the segmental information is not available. From the annual report it is seen that this company is primarily engaged in software development and IT enabled services and products and no further segmental break up between two
Assessment Year: 2013-14 M/s. Atlas Healthcare Software India Pvt. Ltd. functions is provided in the annual report and it is also involved in the R&D activities. This company has incurred significant expenditure of approximately ₹2 crores on account of research and development activities. Therefore it is directed to be excluded. iv. Thirdware Solutions Ltd.: We note that as per the annual report M/s. Thirdware was engaged in the provision of software development services and also involved in the provision of other information technology enabled services. The segmental break up of revenue attributable to software development services and ITeS is not available in the case of Thirdware. [page 381 of paper book and page 35 of CPB. Our attention was also drawn to page no. 49 of Philips India Limited (supra) where this fact of segmental break up not available has been taken note of and the said company was excluded from the comparables. Therefore we also direct this exclusion of this company from the comparables. v. Infinite Computer Solutions (India) Ltd.: As per the annual report this company is involved in the provision of information technology services of Application management, Infrastructure management, Product engineering services, Next-generation messaging platforms, Enterprise mobility solutions to the telecom, Healthcare and Financial services sectors, R&D and Intellectual property leveraged solutions and related IT services. Therefore this company is functionally different and also it fails in the RPT percentage on total operating revenue of 47.01%. So we direct as per the aforesaid discussion, the exclusion of the following companies from the list of comparable companies:
1. 1. Axit IT & T Ltd. 2. Zylog Systems (India) Ltd. 3. E-infochips Bangalore Ltd. 4. Thirdware Solutions Ltd. 5. Infinite Computer Solutions (India) Ltd.
13. Ground no. 4-The working capital adjustment: We note that the DRP has directed the AO/TPO to provide the benefit of working capital adjustment to the assessee. However it was brought to our notice while giving effect the DRP order to Assessment Year: 2013-14 M/s. Atlas Healthcare Software India Pvt. Ltd. AO/TPO has not given effect to it. It is well settled that the direction of DRP is binding on the TPO and we direct the TPO to implement the DRP direction at page 17, para 4.1 and the assessee to provide the necessary input data necessary to the TPO in this regard. In the result this ground of the appeal is allowed for statistical purposes.
In the result, the appeal of the assessee is partly allowed. Order is pronounced in the open court on 17th January, 2020.