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Income Tax Appellate Tribunal, PUNE BENCH “B”, PUNE
आदेश / ORDER PER SUSHMA CHOWLA, JM:
The appeal filed by the assessee is against the order of Assistant Commissioner of Income Tax (Appeals)-2, Pune, dated 31.12.2013 relating to assessment year 2009-10 passed under section 143(3) r.w.s. 144C(13) of the Income-tax Act, 1961 (in short ‘the Act’).
The assessee has raised the following grounds of appeal:- “1] The learned DRP/A.O. erred in making an addition of Rs.21,85,13,439/- by recomputing the transfer price of the international transactions relating to software development services provided by the appellant to its AEs.
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1.1] The learned DRPIA.O. erred in rejecting the various companies considered as comparable entities by the assessee company while determining the ALP in respect of the provision of software development services without appreciating that the companies selected by the assessee were comparable as per the FAR analysis and hence, there was no reason to reject them.
1.2] The learned DRP/A.O. erred in including various companies as comparable with the appellant without appreciating that the said companies were not comparable with the appellant company and hence, the same ought to be excluded while determining the final set of comparables.
1.3] The learned A.O./TPO erred in not allowing adjustment for working capital while computing the average operating margin of the comparable entities.
1.4] Without prejudice to the above grounds, if at all, the addition is to be made by applying the net profit rate, the same should only be applied to the expenditure incurred by the assessee company for providing services to its AEs and not to the entire expenditure incurred by the assessee company during the year.
2] The appellant craves leave to add, alter, amend or delete any of the above grounds of appeal.”
The issue raised in the present appeal is against the transfer pricing adjustment made by DRP/Assessing Officer of Rs.21,85,13,439/-.
Briefly, in the facts of the case, the assessee was engaged in rendering software services. For the year under consideration the total turnover of the assessee was Rs.106.54 crores. The assessee had entered into various international transactions with its AEs which are tabulated at page 2 of the order of TPO, totaling Rs.33.94 crores. For benchmarking the said transactions with its AEs the assessee had applied CUP method in respect of rendering of software support services to Dimension Data Management Services (PTY) Ltd. and Dimension Data Advanced Infrastructure Ltd. Further for rendering software services to Paracon SA, the assessee had applied TNMM method. In
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the TP study report, the assessee while applying the TNMM had identified 25 companies as comparables and it had taken the average operating margin of 3 years at 6.29%. The operating margin of assessee for the year was computed at 3.91% and the international transactions were claimed to be at arm’s length price.
The TPO rejected the CUP method applied by the assessee with regard to the transactions with Dimension Data Management Services (PTY) Ltd. and Dimension Data Advanced Infrastructure Ltd. The TPO further accepted that TNMM was the most appropriate method for determining the arm’s length price and carried out fresh search and thereby arrived at five concerns as comparables. The Assessing Officer passed draft assessment order, against which the assessee filed objection before the DRP.
The first plea raised by the assessee before the DRP was that two concerns i.e. Bodhtree Consulting Ltd. and Kals Information Systems Ltd. were not comparables as they were functionally dissimilar. The second plea raised by the assessee before the DRP was that concern PSI Data Systems Ltd. should be included in the final set of comparables. The assessee also asked for working capital adjustment and also that forex loss should be excluded while determining the operating margins of the assessee. The DRP while disposing of the objections raised by the assessee held that Bodhtree Consulting Ltd. and Kals Information Systems Ltd. were comparables and had to be selected in the final set of comparables. The DRP directed the Assessing Officer to allow working capital adjustment. In respect of the concern PSI Data Systems Ltd. the Assessing Officer was directed to see if RPT was less than 25%, then the said concern was to be included in the final set and if was more than 25% then
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it was to be excluded. In respect of exclusion to forex loss from the profit margins of the assessee, the DRP held the same to be part of operating profit. The Assessing Officer in the final assessment order passed, selected the five companies and the average margin of the comparable worked out to 25.22%, as against the operating margin of the assessee at 3.91%. The Assessing Officer thus, made an addition of Rs.21,85,13,439/- under the transfer pricing provision. It is the plea of the assessee that though the Assessing Officer was directed to grant working capital adjustment to the assessee but in the final assessment order no such adjustment was allowed. Further even PSI Data Systems Ltd. was excluded from the final set of comparables. In respect of adjustment on account of forex loss, the ld. AR for the assessee before us points out that no issue has been raised against the said directions of the DRP before the Tribunal.
The assessee is in appeal against the order of DRP/Assessing Officer. The first issue raised is in respect of exclusion of two concerns i.e. Bodhtree Consulting Ltd. and Kals Information Systems Ltd. being functionally dissimilar. The ld. AR for the assessee pointed that similar addition was made in preceding year and the Tribunal has directed the exclusion of Bodhtree Consulting Ltd. on the basis of decision of Pune Bench of the Tribunal in the case of John Deere India (P.) Ltd. Vs. Deputy Commissioner of Income Tax reported in 77 taxmann.com 7 (Pune). He further brought to our notice that for the instant assessment year i.e. assessment year 2009-10, in the case of John Deere India (P.) Ltd. Vs. Deputy Commissioner of Income Tax in ITA No. 827/PN/2014, order dated 27.10.2016, Bodhtree Consulting Ltd. was directed to be excluded being not comparable to a concern providing software development services to its AEs. He also pointed that and Kals Information
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Systems Ltd. was also directed to be excluded being functionally dissimilar. In respect of Bodhtree Consulting Ltd. the ld. AR for the assessee pointed that there was huge fluctuating margin of the said concern over the period of years and the Tribunal in the case of Deputy Commissioner of Income Tax Vs. Barclays Technology Centre India (P.) Ltd. reported in 72 taxmann.com 351 (Pune-Trib.) has directed the exclusion on this account. He further referred to the decision of Hon’ble Bombay High Court in the case of Commissioner of Income Tax Vs. Principal Global Services (P.) Ltd. reported in 95 taxmann.com 315 (Bom) wherein vide para 5 the concern Kals Information Systems Ltd. have been held to be not functionally comparable to a concern providing software development services to its AEs.
In respect of second issue of non-granting of working capital adjustment the ld. AR for the assessee pointed that the Assessing Officer while passing the final assessment order does not grant the same and only directions are to be given for allowing working capital adjustment. He further pointed that in case the above two issues are decided then the inclusion of PSI Data Systems Ltd. or not, would become academic.
The learned Departmental Representative for the Revenue on the other hand placed reliance on the orders of DR/ TPO.
We have heard the rival contentions and perused the records. The assessee is providing software development services to its AEs. The total transactions with the AEs during the year were Rs.33.94 crores which are tabulated at page 2 of the order of TPO. The assessee had selected CUP/TNMM for different transactions with the AEs, but the TPO had applied
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TNMM for all the international transactions with its AEs. The ld. AR for the assessee pointed out that there was no dispute with regard to application of TNMM. The TPO had finally selected five concerns as functionally comparables to the assessee, which have been adopted by the DRP and the Assessing Officer in the final assessment order. The list of the said companies is as under: Sr. No. Name of the companies Operating margin 1 Bodhtree Consulting Ltd. 62.29% 2 KALS Information Systems Ltd. 41.91% (application software seg.) 3 CG VAK Software 3.80% 4 Akshay Software Technologies Ltd. 8.22% 5 R S Software 9.86% Arithmetic mean 25.22%
The first issue which has been raised before us is in respect of exclusion of two concerns i.e. Bodhtree Consulting Ltd. and Kals Information Systems Ltd. The ld. AR for the assessee strongly stressed that the two concerns were not functionally comparables and the same had to be excluded from the final set of comparables. In this regard the reliance was placed by the ld. AR for the assessee on the decision of Tribunal in assessee’s own case in ITA No. 2428/PUN/2012 for the assessment year 2008-09, order dated 10.05.2018 wherein relying n the decision of John Deere India Pvt. Ltd. in ITA No. 2236/PN/2012 for assessment year 2008-09 it was held that the said concern was not functionally comparable since it was engaged in the product engineering and content engineering services, which were in the nature of ITES services and was not comparable with the assessee’s activity of providing software development services. The relevant findings of the Tribunal are in
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para 19 at pages 25 to 28 of the order, which are being referred but not being reproduced for the sake of brevity.
Further, Pune Bench of the Tribunal in the case of John Deere India (P.) Ltd. Vs. Deputy Commissioner of Income Tax (supra) while deciding the appeal for assessment year 2009-10 vide order dated 27.10.2016 it was again held that the said concerns Bodhtree Consulting Ltd. was engaged in the sale of software product apart from providing software services and no segmental data was available in the said context. Following the same parity of reasoning i.e. in the case of assessee and the in the case of John Deere India (P.) Ltd. (supra) we hold that the concern Bodhtree Consulting Ltd. is to be excluded from the final set of comparables.
Another aspect for exclusion of the said concern is the fluctuating margins shown by the company over the period of years. In the financial 2007- 08 the said concern had shown margin of 17% whereas in financial year 2008- 09 it had shown margin of 56% and in financial year 2009-10, 40%. The Tribunal in the case of Deputy Commissioner of Income Tax Vs. Barclays Technology Center India (P.) Ltd. (supra) while deciding the appeal for assessment year 2009-10 has held that the said concern needs to be excluded because of the huge fluctuating margins. Accordingly, we hold that Bodhtree Consulting Ltd. is to be excluded from the final list of comparables.
Now, coming to the next concern i.e. Kals Information Systems Ltd., the Tribunal in assessee’s own case for assessment year 2008-09 has held that the said concern to be not functionally comparable and had excluded the same. Further, while deciding the appeal for assessment year 2009-10 in the case of John Deere India (P.) Ltd. (supra) the Tribunal observed that the said concern
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was also engaged in sale of software product and providing software services and no segmental details were available. Therefore, the said concern had to be excluded while benchmarking the arm’s length price of international transactions of a concern engaged in software development services.
The Hon’ble Bombay High Court in the case of Commissioner of Income Tax Vs. Principal Global Services (P.) Ltd. (supra) while deciding the appeal in the case of Principal Global Services (P.) Ltd. have held that Kals Information Systems Ltd. was engaged in developing software products, development of software services and was also engaged in running a training centre for software professional on online projects. It was held that the margins of Kals Information Systems Ltd. should not compared with the concern engaged in the activity of providing software solution i.e. software services. Following the same parity of reasoning we hold that the Kals Information Systems Ltd. is to be excluded from the final list of comparable, since the said concern is functionally dissimilar.
Now, coming to the next issue raised in the appeal by the assessee in ground of appeal No. 1.3 i.e. not allowing of working capital adjustment. The DRP has directed the Assessing Officer to allow working capital adjustment to the assessee whereas the Assessing Officer in the final assessment order has failed to so provide. He is directed to follow the directions of DRP and allow working capital adjustment to the assessee. The ld. AR for the assessee fairly submitted that in case the two concerns i.e. Bodhtree Consulting Ltd. and Kals Information Systems Ltd. are excluded from the final set of comparables and working capital adjustment is allowed to the assessee, then the transactions with its AEs would be at arm’s length price and no other issue needs to be
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adjudicated. Accordingly, we do not address the non-inclusion/exclusion of PSI Data Systems Ltd. in the final list of concerns. In respect of exclusion of forex loss from the operating margins, the assessee has fairly accepted the said issue and has raised no grounds of appeal against the same. In view thereof, the ground of appeal Nos. 1 to 1.3 are allowed. The issue in ground of appeal No. 1.4 is on without prejudice basis which would become academic and hence the same is not adjudicated.
In the result, the appeal of the assessee is partly allowed.
Order pronounced in open Court on this 31st day of August, 2018.
Sd/- Sd/- (ANIL CHATURVEDI) (SUSHMA CHOWLA) ऱेखा सदस्य / ACCOUNTANT MEMBER न्याययक सदस्य / JUDICIAL MEMBER ऩुणे / Pune; ददनाांक Dated : 31st August, 2018. RK/GCVSR आदेश की प्रयतलऱपप अग्रेपषत/Copy of the Order is forwarded to : 1. अऩीऱाथी / The Appellant; 2. प्रत्यथी / The Respondent; 3. The Dispute Resolution Panel, Pune; 4 The DIT(IT/TP), Pune; ववबागीय प्रतततनधध, आयकर अऩीऱीय अधधकरण, ऩुणे “फी” / DR 5. ‘B’, ITAT, Pune; गार्ड पाईऱ / Guard file. 6.
आदेशािुसार/ BY ORDER, सत्यावऩत प्रतत //True Copy// वररष्ठ तनजी सधिव / Sr. Private Secretary आयकर अऩीऱीय अधधकरण ,ऩुणे / ITAT, Pune