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Income Tax Appellate Tribunal, DELHI ‘I-2’ BENCH,
Before: SHRI N.K. BILLAIYA, & SHRI SUCHITRA KAMBLE&
PER N.K. BILLAIYA, ACCOUNTANT MEMBER,
These three appeals by the assessee are preferred against three separate orders of the DRP - 1, New Delhi pertaining to assessment years 2011-12, 2012-13 and 2013-14. Since common issues are involved in all these appeals, they were heard together and are disposed of by this common order for the sake of convenience and brevity.
Representatives of both the sides were heard at length on the facts of AYs. 2012-13 and 2013-14 are common. On such concession, we have considered the facts in A.Y 2011-12.
Briefly stated, the facts of the case are that the assessee is a part of Converse Group and a subsidiary of Converse Network Systems Europe BV, incorporated in July 1999 and functions as a service
3 provider. The assessee is engaged in providing value added support services in the nature of sales and post sales support services related to Converse telecommunication products and is also engaged in providing software development, maintenance and professional services to its Associated Enterprises [AEs]. The assessee is remunerated on cost plus basis.
5. During the year under consideration, the assessee entered into the following transactions with its AEs :
No. Nature of transaction Method Value of transaction 1. Provision of sales and post sales TNMM 16,00,94,357 support services 2. Provision of software development TNMM 2,26,13,270 services 3. Provision of professional services TNMM 15,14,77,399 4. Provision of maintenance services TNMM 2,34,39,567, 5. Availing of support services TNMM 3,86,61,387 6. Availing of management services TNMM 4,66,52,153 7. Reimbursement of expenses to AEs TNMM 2,23,42,780 8. Reimbursement of expenses by AEs No bench 1,46,11,127 marking required
In its TP report, the assessee has computed the margins as under:
Provision of Provision of Provision of Provision of sales and post- software . Professional maintenance sales support development Particulars . Services services services Services Income 2,26,13,269 Service Income 16,00,94,357 15,14,77,399 2,34,39,567 Operating Income 16,00,94,357 2,26,13,269 15,14,77,399 2,34,39,567 Expenditure Operating Expenditure 14,96,20,894 2,05,57,517 13,89,70,090 2,19,06,138 Operating Cost (OC) 14,96,20,894 2,05,57,517 13,89,70,090 2,19,06,138 Operating Profit[OP] (OP) 1,04,73,463 20,22,762 1,25,07,309 16,22,429
OP/OC 7.00% 10.00% 9.00% 7.00%
For bench marking of sales and post sales segment of which the assessee has shown operating profit margin at 7%, average of the following comparable companies have been taken by the assessee as under:
No. Name of the company Weighted Average OP/OC (%) Himachal Futuristic Communications Ltd o -7.30 1 n Nu Tek India Limited 17.95 s 2 r 3 Telecommunications Consultants India Ltd I 9.85 L t n i 4 Teracom Limited 18.39 a d m 1 n i Arithmetic mean 9.72 i 1 t a t s e L d i m i t
The TPO did not agree with the use of multiple year data. According to the TPO, use of multiple year data is inappropriate in the light of Rule 10D(4) of the Rules. The TPO analysed the filters used by the assessee as under:
No Description of filter Remarks of this office . I. Reject companies that This is an appropriate filter. However, the data is have insufficient financial to be seen with reference to current financial year information. i.e. FY 2010-11.
2. Reject companies that The filter is insufficient. The correct jitter would have no operations. be to exclude the companies having sales less than 1 Cr. as it will eliminate start-up company and also companies where there is little differentiation between profits and remuneration. Margins of companies having small cost base and revenues are erratic. Further, they are not of significance.
Reject sick companies. This is not an appropriate filter. The correct filter is to reject companies having negative net worth.
4. Reject companies having The filter is an appropriate filter. However the insufficient descriptive same has not been correctly applied as the information function of comparables have not been correctly analysed in the TP report.
Reject companies having This filter has not been applied properly. non comparable functions 6. Reject companies having This filter has not been applied properly. non comparable services 7. Reject companies having This is not an appropriate filter as the segmental Insufficient segmental information is available from the annual information statements.
6 8. Reject companies that The filter is an appropriate filter. However, the have significant related threshold to be applied is rejecting companies party transactions. having RPT>25%.
Reject companies that If the filter is meant to exclude only the duplicate have been repeated company, the same is an appropriate filter otherwise it is not an appropriate filter as it will exclude a company for extraneous reason like change in name, merger etc. which do not have impact on the operational performance.
9. After analysing the defects/short comings, the TPO used the following set of filters keeping in mind the profile of the assessee:
(i) Use of current year data: If a company is having an accounting year different from financial year for which financials of your company are being considered, the same has been excluded as the profits and revenue pertain to different period other than current year which is FY 2010-11. This filter is being applied because even after application of this filter, there are several comparable companies available in software development.
(ii) Reject companies where turnover is less than Rs. 1 Crore: This filter is applied because where the turnover and cost base is very small, it is more than likely that the margins will be erratic. That apart, a company that is very small in size does not have sufficient economic significance that it be used as a benchmark.
(iii) Reject companies having persistent losses and negative net worth
7 (iv) Select companies where the ratio of service income to total income is at least 75%: The use of this filter is to ensure that we choose companies that are primarily in the service sector. The application of this filter will ensure that companies with significant income from manufacturing and trading are not selected. You have argued for placing this threshold at 50%. This will be an inappropriate limit as this will allow companies that have significant incomes from manufacturing and trading activities to be used as comparables. In your case your entire income is from provision of services. It would not he right to allow you to be benchmarked against a company that has 50% of its income from manufacturing or trading activities. This will ensure integrity of all comparable data.
(v) Reject companies where related party transactions exceed 25% of sales: There is no doubt that companies with significant related party transactions need to be excluded from the benchmarking process. On the issue of threshold of related party transactions, it can be stated that when the RP T exceeds 25% of sales, it can be said to be the stage when it will start affecting the price paid/received, he rationale given for the use of the limit of 25% is sound and the threshold has been upheld in recent judicial pronouncements. Therefore, there is no need to deviate from the limit of 25%
(vi) Reject companies that are functionally different”
Based on the above reasoning given for filters, the TPO proceeded by examining the comparables used by the assessee. The TPO at para 13 of his order observed that all four comparables used by 8 the assessee are functionally different. After rejecting the comparables used by the assessee, the TPO proceeded by taking the following comparables for bench marking technical support services:
No. Company Name OP/OC(%) Kitco Limited 27.48 1 2 Ashok Leyland Project Services Ltd. 24.70 3 Bengal S R EI Infrastructure Devp. Ltd 42.14 4 Certification Engineers International Ltd. 78.45 5 Global Procurement Consultants Ltd. 30.86 H S C C (India) Ltd. 21.04 6 7 Indus Technical & Financial Consultants Ltd. 14.78 Mahindra Consulting 30.92 8 Engineers Ltd. 9 Mitcon Consultancy & Engg. Services Ltd. 40.19 10 Pallavan Transport Consultancy Services 25.59 Ltd. 11 R E C Power Distribution Co. Ltd. 39.44 12 TC E Consulting Engineers Ltd. 29.29 13 Usha Hydro Dynamics 29.45 Ltd. 14 Gujarat Industrial & Technical Consultancy Org 7.89 Ltd. 15 IBI Chematur (Engineering & Consultancy) Ltd. 25.96 16 Rites Ltd. 58.27 17 NTPC Electric Supply Company Ltd. 18.01 32.03 Average
In the light of the above comparables, ALP of the international transaction relating to technical support services segment was recasted as under:
Particulars Amount (In INR) Operational cost 14,96,20,894 ALP at a margin of 32.03% 19,75,44,466 Price received 16,00,94,357 Difference 3,74,50,109
Proceeding further, for provision of management and support services, the TPO observed that the assessee has not been able to demonstrate the tangible benefit derived from such services and the manner in which the services have been procured. In view of this, the comparable uncontrolled price [CUP] of these services was taken at Rs. NIL and, accordingly, the entire amount of Rs. 85,31,350/- was considered for the enhancement of income of the assessee.
The assessee carried the matter before the DRP but without any success.
Before us, the ld. AR vehemently stated that the TPO did not give any justification in rejecting the comparables of the assessee. It
10 is the say of the ld. AR that in the cases of comparables, Nu Tek India Limited and Teracom Limited, the TPO has simply mentioned that these are functionally different. The ld. AR continued by stating that in the cases of Himachal Futuristic Communications Ltd and Tele- communications Consultants India Limited, the TPO has contradicted himself in as much as he rejected these comparables by taking filters which he himself has considered for selection of comparables.
In its rebuttal, the ld. DR pointed out that there is nothing wrong in rejecting these comparables as the assessee does not have any turn key project as was in the case of Himachal Futuristic Communications Ltd.
In so far as comparables used by the TPO, the ld. AR pointed out that each comparable is functionally different to which the ld. DR pointed out that if the application of TNMM is expanded, then the comparables used by the TPO also deserve to be included if the comparables used by the assessee have to be considered. It is the say of the ld. DR that if the TNMM is used at entity basis, then all the services qualify as comparable. At this stage, the ld. Counsel drew out attention to the decision of the coordinate bench in assessee’s own
11 case in A.Y 2008-09 in wherein the findings read as under:
“6. We find that in view of our direction to exclude the comparables chosen the TPO and one comparable chosen by the assessee as well as exclusion of the remaining two comparables by the TPO not challenged by the assessee before us, has left with no comparable in the sales and post sale support segment for determination of arm's length price. In view of the above facts and circumstances, we restore the matter to the TPO for carrying out a fresh search and selection of comparables having functions similarity to the segment of sales and post sales support and compute the adjustment accordingly as per law. Needless to mention that the assessee shall be provided sufficient opportunity of hearing.”
We find that the facts of the year under consideration appear to be similar to the facts of A.Y 2008-09. In our considered opinion, the comparables selected by the assessee and also by the TPO are functionally different from the functions of the assessee. In the light of findings given in A.Y 2008-09, we are of the view that both the assessee and TPO must carry out fresh search for selection of comparables having functions, similarity in the segment sales and post sales support. We, accordingly, restore this issue to the file of the TPO with the above directions. The TPO is directed to decide the issue afresh after giving reasonable opportunity of being heard to the assessee.
12 18. In so far as provision of management and support services are concerned, we find that the assessee has given complete details of the technical services utilised by it from its AE and the same are exhibited at pages 704 to 708 of the paper book. Details of management services have also been given by the assessee. We find that the TPO/DRP has nowhere considered the details submitted by the assessee.
Before us, the ld. DR pointed out that in so far as management services are concerned, the assessee has not brought anything on record to suggest what type of services were given by the AEs for which the assessee had made the payments.
In so far as technical services are concerned, the ld. DR fairly conceded that the details were furnished but not properly appreciated by the TPO.
Considering the facts in totality, we are of the considered view that this issue also needs fresh adjudication. We, accordingly, restore this issue to the file of the TPO. The TPO is directed to decide the issue afresh after considering the detailed submissions/documentary evidences furnished by the assessee. The assessee is directed to 13 furnish the details of services utilised by it for which it has made the payments to its AEs. The assessee is further directed to demonstrate what benefits it has received from its AEs. The TPO is directed to consider the same and decide the issue afresh after giving reasonable opportunity of being heard to the assessee.
As mentioned elsewhere, the issue relating to provisions of management and support services is common in & 408/DEL/2017. Both these appeals are disposed of accordingly.
In the result, all the three appeals of the assessee are allowed for statistical purposes. Stay Petitions Nos. 491/DEL/2017 & 735/DEL/2017 have become otiose.
Order pronounced in the open court on 31st July, 2018.