M/S AMD INDIA PRIVATE LTD.,,BANGALORE vs. ASST.C.I.T., BANGALORE

3. In its TP study , the assessee adopted Transactional Net Margin Method ( "TNMM" ) as the most appropriate method for software development services and sales and marketing services. With respect of software development services segment, the assessee selected 14 companies as comparables. Adopting operating profits to cost as the Profit Level Indicator (PL), the arithmetic mean (weighted average) of the comparables was computed at 13.01% and the PLI of the assessee was at 13.67%. Since the margin of the assessee was higher than the mean margin of the comparable companies, the transaction in respect of software development services provided to the AE was considered by the assessee to be at arm's length. The TPO did not concur with the analysis undertaken by the assessee. In his TP order , he retained 6 comparables chosen by the assessee , introduced 7 new comparables and computed the adjusted margin of the comparables at 23.92 % (after undertaking a working capital adjustment of 0.90%) . Accordingly, the TPO made an addition of Rs.100,889,071/- to the total income in connection with its international transaction.

4. In respect of marketing support segment, the assessee selected 6 companies as comparables. Adopting operating profits to cost as the PLI, the arithmetic mean (weighted average) of the comparables was computed at 9.71%. The PLI of the assessee was at 7.26%. Since the margin of the assessee was within the five percent range of the arithmetic mean margin of the comparable companies, the transactions in respect of IT(TP)A.1487 & 1496/Bang/2015 Page - 4 sales and marketing services were considered by the assessee to be at arm's length. The TPO did not concur with the analysis undertaken by the assessee. In his TP order , he retained only one comparable chosen by the assessee , introduced 2 new comparables and computed the average margin of the comparables at 18.25 % and accordingly, the TPO made an addition of Rs. 24,959,672/- to the total income in connection with its international transaction. Aggrieved, the assessee filed its objections before the DRP. The DRP accepted some of the pleas and rejected some others.

When the AO gave effect to the above directions, aggrieved on them, the assessee as well as the Revenue filed these appeals. The assessee’s grounds are extracted as under:

IT(TP)A.1487 & 1496/Bang/2015 Page - 5 IT(TP)A.1487 & 1496/Bang/2015 Page - 6 IT(TP)A.1487 & 1496/Bang/2015 Page - 7 IT(TP)A.1487 & 1496/Bang/2015 Page - 8

5. The Revenue’s grounds are extracted as under :

IT(TP)A.1487 & 1496/Bang/2015 Page - 9

6. With respect of software development services segment, the gist of the AR’s submissions are extracted as under :

1. Acropetal Technologies Ltd (seg) :

The assessee submitted before the DRP that :

1. It is functionally dissimilar since it is engaged into IT services and products company & segmental information between software services & software products is not available.

IT(TP)A.1487 & 1496/Bang/2015 Page - 10

2. As per Annual Report, it has substantial R&D activity.

3. It fails employee cost filter (i.e, 9.8% on sales)

However, the DRP rejected this company for the reason that this is an Onsite Software Company, low employee cost & functionally different.

Before us , the assessee submitted that this company needs to be rejected as it is functionally not comparable and fails employee cost filter based on Applied Materials India P. Ltd v. ACIT [TS-815-ITAT- 2016(Bang) ay 2011-12] & on employee cost filter : • Zavata India P. Ltd [TS-156-ITAT-2013(Hyd)] • First Advantage Offshore Services P. Ltd [IT(TP)A.1086/Bang/2011]

2. E-Zest Solutions Ltd :

The assessee submitted before the DRP that this company is not a pure software development company as it is engaged in rendering both software development services and software products. The DRP rejected this company for the reason that this company is functionally different.

Before us, the assessee submitted that this company needs to be rejected as it is functionally not comparable and fails lower turnover filter of 10 times based on • Applied Materials India P. Ltd v. ACIT [TS-815-ITAT-2016(Bang) ay 2011-12]

• AMD India P. Ltd [IT(TP)A.417 & 457/Bang/2013-AY 2008-09] IT(TP)A.1487 & 1496/Bang/2015 Page - 11

On turnover filter on • McAfee Software India P. Ltd v. ACIT [TS-136-ITAT-2016(Bang) – AY 2005-06]

3. E Infochips Ltd :

The assessee submitted before the DRP that this company is not a pure software development company as it is engaged in the business of software development services, ITES, consultancy and sale of hardware products.

Further no segmental information is available. The DRP rejected this company for the reason that no segmental details are available and fails 75% service revenue income filter.

Before us , the assessee submitted that this company needs to be rejected as it is functionally not comparable and has abnormal profits based on : • Saxo India P. Ltd v. ACIT [TS-41-ITAT-2016(Bang)-Confirmed by HC –ITA.682/2016] • Alcatel-Lucent India P. Ltd [74 Taxmann.com-105-Delhi-AY 2010-11]

The assessee submitted before the DRP as follows :

1. It has substantial RPT i.e. 22.37% on sales.

2. It is functionally dissimilar since it is engaged into software development, engineering services, web development & hosting, business analytics & BPO as per Annual Report.

The DRP rejected this company for the reason that this is Company is functionally different.

IT(TP)A.1487 & 1496/Bang/2015 Page - 12 Before us, the assessee submitted that this company needs to be rejected as it is functionally not comparable and fails RPT filter based on • Applied Materials India P. Ltd v. ACIT [TS-815-ITAT-2016(Bang) ay 2010-11]

On 15% RPT filter :

• 24/7 Customer.com [ITA.227/Bang/201028.taxmann.com 258] • DCIT v. Electronics for Imaging India P. Ltd [IT(TP)A.No.212/Bang/2015 –AY.2010-11]

The assessee submitted before the DRP as follows :

1. It has a high turnover of 25,385 crores.

2. It commands premium pricing due to its brand value. It has highly evolved Global Delivery Model which gives a competitive advantage over others. 3. It also differs with regard to risk profile, nature of services provided, number of employees, asset base, development centre, intangible assets and research and development expenditure.

The DRP rejected this company for the reason that this Company is functionally different.

Before us, the assessee submitted that this company needs to be rejected as it is functionally not comparable, has brand, intangibles and products and fails RPT filter based on : • Applied Materials India P. Ltd v. ACIT [TS-815-ITAT-2016(Bang) ay 2011-12] IT(TP)A.1487 & 1496/Bang/2015 Page - 13

• Orange Business Services India Solutions P. Ltd [TS-355-ITAT-2016 (Del) AY 2011-12] • Alcatel-Lucent India P. Ltd [74 Taxmann.com-105-Delhi-AY 2010-11]

On turnover filter :

• McAfee Software India P. Ltd v. ACIT [TS-136-ITAT-2016(Bang) –AY 2005-06]

The assessee submitted before the DRP that this company has the following features :

1. It has a high turnover of Rs.2331.81 crores

2. It is not a pure software development company as it is engaged in rendering both software development services and software products and segmental information is not available.

3. TPO has computed incorrect margin.

The DRP rejected this company for the reason that this company is an onsite software company.

Before us, the assessee submitted that this company needs to be rejected as it is functionally not comparable and fails lower turnover filter of 10 times based on :

• Applied Materials India P. Ltd v. ACIT [TS-815-ITAT-2016(Bang) ay 2011-12] • Alcatel-Lucent India P. Ltd [74 Taxmann.com-105-Delhi-AY 2010-11] • Saxo India P. Ltd v. ACIT [TS-41-ITAT-2016(Bang)-Confirmed by HC –ITA.682/2016]

On turnover filter :

• McAfee Software India P. Ltd v. ACIT [TS-136-ITAT-2016(Bang) – AY 2005-06] IT(TP)A.1487 & 1496/Bang/2015 Page - 14

7. Persistent Systems & Solutions Ltd :

The assessee submitted before the DRP that this company has the following features :

1. It is not a pure software development company and is engaged in the business of software development services & sale of products and segmental information between software services & products is not available.

2. Turnover has increased to 181.86%, which is abnormally high.

The DRP held that this company as a comparable.

Before us , the assessee submitted before us that this company needs to be rejected as it is functionally not comparable based on :

• Applied Materials India P. Ltd v. ACIT [TS-815-ITAT-2016(Bang) ay 2011-12.]

8. Persistent Systems Ltd :

The assessee submitted before the DRP that this company has the following features :

1. It has a high turnover of Rs.610.13 crores.

The DRP held that this company as a comparable.

IT(TP)A.1487 & 1496/Bang/2015 Page - 15 Before us, the assessee submitted that this company needs to be rejected as it is functionally not comparable and fails RPT filter based on • Applied Materials India P. Ltd v. ACIT [TS-815-ITAT-2016(Bang) ay 2011-12] • Alcatel-Lucent India P. Ltd [74 Taxmann.com-105-Delhi-AY 2010-11] • Saxo India P. Ltd v. ACIT [TS-41-ITAT-2016(Bang)-Confirmed by HC –ITA.682/2016] • Orange Business Services India Solutions P. Ltd [TS-355-ITAT- 2016 (Del) AY 2011-12] • AMD India P. Ltd [IT(TP)A.417 & 457/Bang/2013-AY 2008-09]

On 15% RPT filter :

• 24/7 Customer.com [ITA.227/Bang/201028.taxmann.com 258] • DCIT v. Electronics for Imaging India P. Ltd [IT(TP)A.No.212/Bang/2015 –AY.2010-11]

9. Sasken Communication Technologies :

The assessee submitted before the DRP that this company has the following features : 1. It has a high turnover of Rs. 394.19 crores.

2. Segmental information between software services & software products is not available- The company earns revenue from both software services & products.

The DRP held that this company as a comparable. Before us , the assessee submitted that this company needs to be rejected as it is functionally not comparable based on :

• Saxo India P. Ltd v. ACIT [TS-41-ITAT-2016(Bang)-Confirmed by HC –ITA.682/2016] IT(TP)A.1487 & 1496/Bang/2015 Page - 16

10. Tata Elxsi (Seg) :

The assessee submitted before the DRP that this company has the following features :

1. It has a high turnover of Rs.358.19 crores 2.1t is functionally dissimilar since it is engaged into software development and services as well as systems integration & support as per Annual Report.

Before us , the assessee submitted that this company needs to be rejected as it is functionally not comparable based on :

• Applied Materials India P. Ltd v. ACIT [TS-815-ITAT-2016(Bang) ay 2011-12] • Alcatel-Lucent India P. Ltd [74 Taxmann.com-105-Delhi-AY 2010-11]

IT(TP)A.1487 & 1496/Bang/2015 Page - 17 made by the DRP on which the Revenue is aggrieved. We heard the rival submissions and gone through relevant material. Let us examine them, by extracting the relevant portion of the order of this Tribunal and others as under:

“9. The next ground in the assessee's appeal is regarding seeking exclusion of 4 comparable companies retained by the DRP. We will deal with the comparability of these 4 companies as under :

(i) E-Jest Solution Ltd. :

9.1.1 The learned Authorised Representative has submitted that the assessee raised the objection before the DRP for exclusion of this company from the set of comparables but the DRP has not adjudicated the objections of the assessee. He has referred the objections raised before the DRP at page No. 1373 of the paper book as well as referred the relevant part of the Annual Report of this company at page Nos.39, 42 & 50 of the Annual Report. The learned Authorised Representative has submitted that this company is engaged in the diversified activity and reported the income under only one segment. Therefore it cannot be considered as a comparable of the assessee's software development services segment. He has relied upon the decision of the co-ordinate bench of this Tribunal dt.22.4.2016 in the case of Electronics for Imaging India Pvt. Ltd. Vs. DCIT in IT(TP)A Nos.227 & 285/Del/2013.

9.1.2 On the other hand, the learned Departmental Representative has submitted that the main activity of this company is software development services. Therefore the insignificant variation in activity if any cannot be a determinative factor while computing the ALP under Transactional Net Margin Method (TNMM). He has relied upon the decision of the Delhi Bench of ITAT in the case of Toluna India Pvt. Ltd. Vs. ACIT (2014) 151 ITD 177.

9.1.3 We have considered the rival submissions as well as the relevant material on record. We find that the assessee has raised objections against this company before the DRP. However the DRP did not adjudicate the IT(TP)A.1487 & 1496/Bang/2015 Page - 18 objections raised by the assessee. The decision of this Tribunal in the case of M/s. Electronics for Imaging India Pvt. Ltd. Vs. DCIT (supra) relied upon by the learned Authorised Representative is based on two aspects. (i) The information received under Section 133(6) of the Act was considered by the TPO without sharing with the assessee and (ii) nature of the activity is KPO. It is pertinent to note that the question of BPO and KPO is relevant only in ITES segment and not for software development services segment. On the contrary, the decision in the case of Toluna India Pvt. Ltd. Vs. ACIT (supra), pertains to the Assessment Year 2007-08, therefore the facts of the different year cannot be applied without verification. Accordingly, we set aside this issue of comparability of E-Just Solution Ltd. to the record of the Assessing Officer / TPO for deciding the same after verification of the relevant facts as well as considering the objections of the assessee. (ii) Persistent Systems and Solutions Ltd. (iii Persistent Systems Ltd. 9.2.1 These two companies were part of the TP Study analysis however the assessee raised objections against these companies before the TPO as well as DRP.

9.2.2 Before us, the learned Authorised Representative of the assessee has submitted that these companies are functionally not comparable to the assessee as these are engaged in diversified activity i.e. rendering of software development services and licensing, royalty of software products. Thus without having the separate segmental details and data these diversified activities cannot be compared with the assessee. He has further pointed out that the company Persistent Systems Ltd. also engaged in developing products and therefore the activities are not comparable with that of the assessee. In support of his contention, he has relied upon the decision of this Tribunal dt.24.2.2016 in the case of DCIT Vs. Electronics for Imaging India Pvt. Ltd. (supra) and submitted that this company was found to be not comparable with the software development services provider. He has further pointed out that in assessee's own case for the Assessment Year 2010-11, the DRP vide its order dt.24.11.2014 has excluded Persistent Systems and Solutions Ltd. from the list of comparables by holding that this company is not comparable to the assessee.

9.2.3 On the other hand, the ld. DR has submitted that the TPO as well as DRP has examined the functional comparability of these companies and found IT(TP)A.1487 & 1496/Bang/2015 Page - 19 that these companies are comparable with the assessee. These two companies have satisfied all the filters applied by the TPO and DRP therefore the minor variation in the activity would not render these companies non- comparable when a comparable price is considered under TNMM.

9.2.4 We have considered the rival submissions as well as the relevant material on record. At the outset we note that the functional comparability of these two companies have examined by the co-ordinate bench of this Tribunal in the case of DCIT Vs. Electronics for Imaging India Pvt. Ltd. (supra) in para 60 and 61 & paras 24 to 26 as under :

“ Persistent Systems & Solutions Ltd.

IT(TP)A.1487 & 1496/Bang/2015 Page - 20

(4) Persistent Systems Ltd.

We further find from the Annual Report that there is no change in the activity and functions of these companies during the year under consideration in comparison to the Assessment Year 2010-11. Accordingly, following the decisions of the co-ordinate benches of this 22 IT(T.P)A Nos.17 & 39/Bang/2016 Tribunal (supra), we direct the A.O./TPO to exclude these two companies from the set of comparables.”

IT(TP)A.1487 & 1496/Bang/2015 Page - 21

…………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………… ……………………………………………………………………………….

“15. The revenue is also seeking inclusion of some of the companies in the list of comparables which were reflected by the DRP. We will deal with the issues one by one as under :

(i) Acropetal Technologies Ltd.(Seg.)

16.1 The DRP rejected this company on the ground of employee cost filter. The ld. DR has submitted that the TPO has applied the employee cost filter and this company satisfies the same.

16.2 On the other hand, the learned Authorised Representative of the assessee has submitted that the total employee cost of this company is 11.51 of the total operating revenue therefore it fails the employee cost filter of 25%. Further he has pointed out that this company also fails the software development services revenue filter of 75%. He has referred the details at page Nos.39 and 53 of the Annual Report and submitted that the income from software development is Rs.81.40 Crores out of total revenue of Rs.141 Crores. Therefore this company fails this filter.

16.3 In a rejoinder the ld. DR has submitted that the TPO has considered only Information Technology transactions segment and therefore it satisfies software development services income filter as well as employee cost filter.

16.4 We have considered the rival submissions as well as the relevant material on record. As per the segmental reporting at page 53 of the Annual Report the income from Information Technology Services is Rs.81.40 Crores out of the total income of Rs.141 Crores. Therefore the revenue from Information Technology transactions services is less than 75% and consequently this company does not satisfy the filter of information technology revenue applied by the TPO itself. Accordingly, we do not find any reason to interfere with the order of the DRP for this issue.

(ii) Icra Techno Analytic Ltd.

IT(TP)A.1487 & 1496/Bang/2015 Page - 22

17.1 We have heard the learned D.R. as well as learned A.R. and considered the relevant material on record. The DRP has rejected this company by recording the fact as under :

“We examined the annual report from which it is evident that the entire revenue has been shown under service segment which indicates that the revenue from software development, consultancy, licensing and sublicensing, annual maintenance charges for software support. WEB development and hosting has been reported in one segment, thus in absence of segmental information, we concur with the view of the DRP in preceding year and accordingly direct the Assessing Officer to exclude this company from comparables.”

17.2 We further note that the Tribunal in the case of DCIT Vs. Electronics for Imaging India Pvt. Ltd. (supra) has considered the comparability of this company in paras 14 to 16 as under :

“(1) ICRA Techno Analytics Ltd. (seg)

14. At the outset, we note that apart from having the related party revenue at 20.94% of the total revenue, this company was also found to be functionally not comparable with software development services segment of the assessee. The DRP has given its finding at pages 13 to 14 as under:-

“Having heard the contention, on perusal of the annual report, it is noticed by us that the segmental information is available for two segments i.e., services and sales. However, it is evident from the annual report that the service segment comprises of software development, software consultancy, engineering services, web development, web hosting, etc. for which no segmental information is available and therefore, the objection of the assessee is found acceptable. Accordingly, Assessing Officer is directed to exclude the above company from the comparables.”

15. We find that the facts recorded by the DRP in respect of business activity of this company are not in dispute. Therefore, when this company is engaged in diversified activities of software development and consultancy, engineering services, web development & hosting and substantially diversified itself into domain of business analysis and business process outsourcing, then the same IT(TP)A.1487 & 1496/Bang/2015 Page - 23

cannot be regarded as functionally comparable with that of the assessee who is rendering software development services to its AE.

16. In view of the above facts, we do not find any error or illegality in the findings of the DRP that this company is functionally not comparable with that of a pure software development service provider.”

Nothing has been brought before us to show that the facts recorded by the DRP as well as by the co-ordinate bench of this Tribunal are not correct. Accordingly, in view of the decision of the co-ordinate bench of this Tribunal in the case of DCIT Vs. Electronics for Imaging India Pvt. Ltd. (supra), we do not find any error or illegality in the order of the DRP on this issue.

(iii) Infosys Ltd.

“(2) Infosys Ltd. 17. The assessee objected against the selection of this company on the ground that this company has a big name and brand value and therefore it has a bargaining power. It also contended that the turnover of this company is Rs.21,140 crores, which is 442 times higher than the assessee.”

Following the decision of this Tribunal in the case of DCIT Vs. Electronics for Imaging India Pvt. Ltd. (supra) , we do not find any reason to interfere with the directions of the DRP on this issue.

(iv) L&T Infotech Ltd.

“On perusal of schedule to the notes of the accounts, it is noticed by us that expenses incurred in foreign currency are 938.94 crore (48.84%) out of the total expenses of Rs.1920.46 crore debited in profit and loss account, these IT(TP)A.1487 & 1496/Bang/2015 Page - 24 expenses include the sub contracting expenses to the extent of Rs.118.01 crore, which indicates that the company has the on-site revenue of about 50%. It is also noticed by us that in the profit and loss account, the revenue has been shown from software development services and products. In the segmenting account it is mentioned that the segment revenue include sales directly identifiable with / allocable to the segment. In Schedule 18, the revenue have been shown from 3 segments i.e., financial services, manufacturing and telecom. However, in paragraph 23, it is mentioned that the company is mainly engaged in the business of software development. The AO has considered entire revenue from 3 segments from the software development services. Out of the software development expenses of Rs.1,488.30 crore debited in profit and loss account, salary to overseas staff is Rs.1200.28 crore which also indicates that the company is predominantly engaged in development of software on-site. In view of the above differences, in our view, the above company cannot be retained as comparable. The AO is accordingly directed to exclude the above company from comparable.”

We further find that the comparability of this company has been considered by the co-ordinate bench of this Tribunal in the case of DCIT Vs. Electronics for Imaging India Pvt. Ltd. (supra) in paras 62 to 65 as under :

“ 62. The assessee has raised objection against this company on the basis of high turnover in comparison to the assessee. It was also contended that related party transaction (RPT) of this company is 18.66%. The DRP rejected objections of the assessee on the ground that TPO has applied 25% filter of RPT and annual report of the company does not show any other services rendered other than software development services provided by this company. Thus the DRP held that software development segment is comparable to the assessee and therefore this company has to be retained as comparable.

products. Thus, the ld. AR submitted this company is also in the software products and therefore cannot be considered as good comparable. He has further contended that in a series of decisions, the Tribunal has applied 15% RPT filter and since this company is having more than 15% RPT, the same cannot be considered as a good comparable.

In view of the facts recorded by the DRP as well as the decision of the coordinate bench, we do not find any reason to interfere with the directions of the DRP.

(v) Tata Elxsi Ltd. (Seg.) :

“Directed to exclude as per paragraph 2.7 of the order. Further on perusal of annual report, it is noticed by us from page 14 that software development and services consist of embedded product design, industrial design and visual computing labs which are not comparable to the software development services provided by the assessee and therefore, we direct the AO to exclude the above company from the comparables.”

IT(TP)A.1487 & 1496/Bang/2015 Page - 26

We further note that the DRP has also recorded the fact that export revenue of this company is 73.30% which is less than 75% applied by the TPO. Therefore this company does not qualify the export earning filter applied by the TPO. Further the co-ordinate bench of this Tribunal in the case of DCIT Vs. Electronics for Imaging India Pvt. Ltd. (supra) has considered this issue in paras 30 to 33 as under :

“7.7 From the facts and material on record and submissions made by the learned AR, it is seen that the Tata Elxsi is engaged in development of niche IT(TP)A.1487 & 1496/Bang/2015 Page - 27 product and development services which is entirely different from the assessee company. We agree with the contention of the learned AR 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 parties.”

In view of the facts recorded by the DRP as well as thedecision of the Tribunal in the case of DCIT Vs. Electronics for Imaging India Pvt. Ltd. (supra), we do not find any error or illegality in the directions of the DRP to exclude this company form the set of comparables.

(i) Evoke Technology Pvt. Ltd. (ii) Mindtree Limited (Seg.) (iii) R S Software India Pvt. Ltd.

21.1 At the time of hearing, the learned Authorised Representative of the assessee has submitted that the assessee has no objections if these three companies are restored to the set of comparables as the assessee did not raise any objection before the DRP but the DRP rejected this company suo moto.

21.2 In view of the fact that both the revenue as well as the assessee are seeking inclusion of these companies in the set of comparables, we set aside IT(TP)A.1487 & 1496/Bang/2015 Page - 28 the directions of the DRP qua these comparables and restore these three companies to the set of comparables.

21.3 As we have directed to exclude certain companies as well as include some of the companies in the set of comparables therefore the TPO/A.O is required to recompute the ALP on the basis of the final set of comparables after giving effect to this order. Needless to say the benefit of tolerance range of +/- 5% as per the proviso to section 92C(2) be also considered.”

“(i) E-Infochips Limited:

10.1. The Transfer Pricing Officer included this company in the list of comparables. On being called upon to explain as to why it should not be considered as a comparable, the assessee contended that there was functional dissimilarity inasmuch as this company was engaged in software development and IT enabled services and also Products. The Transfer Pricing Officer observed that the revenues of this company from Products was only 15% of total revenue and hence the same qualified to be eligible for comparison. The DRP did not allow any relief.

10.2. After considering the rival submissions and perusing the relevant material on record, we find that the Annual report of this company is available in the paper book with its Profit and loss account at page 1025. Schedule of Income indicates its operating revenue from software development, hardware maintenance, information technology, consultancy etc. Revenue from hardware maintenance stands at Rs. 3.92 crore, which has been considered by the Transfer Pricing Officer himself as sale of products. Such sale of products constitutes 15% of total revenue. There is no segmental information available as regards the revenue from sale of products and revenue from software development segment. As the assessee is simply engaged in rendering software development services and there is no sale of any software IT(TP)A.1487 & 1496/Bang/2015 Page - 29 products, this company, in our considered opinion, ceases to be comparable. It is obvious that from the common pool of income from both the streams of software products and software services, one cannot deduce the revenue from software services and no one knows the impact of revenue from Products on the overall kitty of profit, which may be significant. Since no segmental data of this company is available indicating operating profit from software development services, we order to exclude this company from the list of comparables.

(ii) E-Zest Solutions

11.1. The Transfer Pricing Officer considered this company as comparable by observing that it provided similar services as were being provided by the assessee. He reproduced the relevant portion from the Annual report of this company indicating that it was engaged in providing software development services. The assessee remained unsuccessful before the DRP.

11.2. We have heard the rival submissions and perused the relevant material on record. The only basis which has been challenged by the learned Authorized Representative seeking exclusion of this company is its functional dissimilarity. We have gone through the Annual report of this company which is available in the paper book. Its Profit and loss account specifies `Income from operations’. It is further borne out that it is providing end-to-end development, software project development services. As the assessee is also engaged in the customised software development, we find this company to be functionally similar. The same is, therefore, retained in the list of comparables.

(iii) L&T Infotech Ltd.

12.1. The assessee argued against the inclusion of this company in the list of comparables before the Transfer Pricing Officer by contending that it was functionally different and there was insufficient segmental information. Apart from that, it was also argued that it was exceptional year of its operations and there were significant intangible assets possessed by it. The Transfer Pricing Officer did not accept this contention and included the same in the list of comparables.

IT(TP)A.1487 & 1496/Bang/2015 Page - 30

12.2. Having regard to the rival submissions and perusal of the relevant material on record, we find from the Annual report of this company, which is available in the third paper book that its Profit and loss account shows “Revenue – Revenue software development services and products”. Profit and loss account of this company having a list of software development expenses contains an item `Cost of bought-out items for re-sale’ with a value of Rs. 25.55 crore. Apart from that, the balance-sheet of this company shows certain `Software’ in its Schedule of fixed assets under the head `Intangible assets’. The above facts conclusively prove that this company is also engaged in the sale of Products apart from rendering software development services. Adopting the same reasons as given for the exclusion of E-infochips Ltd., we order for the exclusion of this company as well.

13.1. The assessee contended that this company was dealing in software products along with software development services and its revenue from licensing of software products was included in total revenue. The TPO observed from the Annual report of this company that it was providing support in software development, consultancy and system integration services. He, therefore, considered it as comparable. The assessee is aggrieved.

13.2. We have heard the rival submissions and perused the relevant material on record. The Annual Report of this company has been placed in the second paper book, from which it is lucid that this company is engaged only in providing software development and consultancy services, which is similar to those rendered by the assessee. When confronted, the ld. AR did not raise any objection to the inclusion of this company in the final set of comparables. We, therefore, uphold the impugned order in treating this company as comparable.

14.1. The assessee objected to the inclusion of this company in the tally of comparables by arguing that it was functionally different and there was insufficient segmental information. The TPO negatived this contention and included the same in the final set of comparables.

IT(TP)A.1487 & 1496/Bang/2015 Page - 31

14.2. After considering the rival submissions and perusing the relevant material on record, we find from Profit & Loss Account of this company, a copy of which is placed at page 1534 of the paper book, that its income from ‘Sale of software services and Products’ is amounting to Rs.6101.27 millions. The TPO has himself observed that this company does have some products, but, product revenue is only 7.2% and, hence, this company is predominantly a software service provider. This discussion is contained in para 21.67 of the TPO’s order. Even Schedule-11 to the Profit & Loss Account also shows ‘Sale of software services and Products.’ This shows that this company is engaged in both rendering software development services as well as sale of software products. Albeit the percentage of software products in the total revenue is less, as has been noted by the TPO, yet, we are inclined to take it as non- comparable because there is no precise information about the contribution made by such small sale of software products to the total profit of the company. As no segmental information is available in respect of this company and the figures have been adopted by the TPO at entity level, we, therefore, order for the exclusion of this company from the list of comparables.

15.1. The TPO included this company in the set of comparables despite the assessee’s objection that it was functionally different and also had Product portfolio.

15.2. After considering the rival submissions, we find from page 58 of the TPO’s order that he has recognized sale of software products to the tune of Rs.37 crore and odd. Though the break-up of revenue from software services and software products is available, but, the break-up of operating costs and net operating revenues from these two segments have not been given. It is further observed that the TPO has taken entity level figures for the purposes of making comparison. Since such entity level figures contain revenue from both software services and software products, as against the assessee only providing software services, we are disinclined to treat this company as comparable. The assessee’s contention is accepted on this issue.”

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& RS Software (India) Ltd, which were rejected by the DRP on which Revenue is on appeal and thus supported Revenue’s appeal grounds, these three companies are restored to the set of comparables. We uphold the DRP’s directions to exclude the 7 comparables viz Acropetal Technologies Ltd (seg), E-Zest Solutions Ltd, E Infochips Ltd, ICRA Techno Analytics Ltd, Infosys Technologies Ltd, Larsen & Toubro Infotech Ltd & Tata Elxsi (Seg) also . To that extent, the assessee’s grounds and the Revenue’s grounds are allowed.

12. In respect of marketing support segment, the gist of the AR’s submissions are extracted as under :

The assessee submitted before the DRP that this company is functionally not comparable since it earns income from exhibitions and events, IT(TP)A.1487 & 1496/Bang/2015 Page - 33 sponsorship income, income and delegate fee and entry charges as per Annual Report. Further , the company operates in a single segment i.e., income from exhibitions and events. The DRP did not accept the assessee’s plea.

Before us, the assessee submitted that this company be rejected as it is functionally not comparable based on : • DCIT v. Electronics for Imaging India P. Ltd [IT(TP)A.No.212/Bang/2015 –AY.2010-11] • DCIT v. Aruba Networks India P. Ltd [TS-820-ITAT-2016(Bang)-TP – AY 2010-11] • ACIT v. RGA Services India P. Ltd [TS-580-ITAT-2015 (Mum)-TP- AY.2010-11]

13. The relevant portion of the order from DCIT v. Electronics for Imaging India P. Ltd [IT(TP)A.No.212/Bang/2015 –AY.2010-11 is extracted as under :

“53. We have considered the rival submissions and considered the relevant material on record. As it is clear that the assessee is providing sales and marketing services to its AE which includes identifying potential customers by conducting road shows, presentation and the like, the working also includes educating potential users of the benefit and features of the AEs range of products. However, products for which the ,ssessee is providing sales and marketing services is only software/information technology products. Therefore Asian Business—Exhibition & Conference Ltd. which is mainly engaged in the organization of exhibitions and events as well as conducting conferences on behalf of the various clients for their various products and businesses. The functions of this company are entirely different from the assessee who is providing sales and marketing support services to its AE for software/IT products. The Mumbai Bench of the Tribunal in the case of RGA Services India (P.) Ltd. (supra) while considering the functional comparability of this company has held at paras 11 and 12 as IT(TP)A.1487 & 1496/Bang/2015 Page - 34 under:—

"11. We have considered the submission of the parties and perused the relevant material on record. On perusal of the order passed by the TPO it is noticed that the TPO while dealing with assessee's objection with regard to selection of Asian Business Exhibition and Conferences Limited as a comparable has admitted that the nature of function performed by this company is event management. It is further relevant to observe, on perusal of annual report of this company it is seen that as per directors report, the main operation is organizing exhibition and events. Further, schedule 12 of the profit and loss account as well as notes to the accounts reveals, revenue earned by the company is from sponsorship, delegates attending conferences, events and entry fees charged from visitors for visiting exhibition, sale of stall place etc.

functionality or some other reason a company is not at all comparable, assessee cannot be precluded from objecting to selection of the company as a comparable. This legal proposition is fairly well settled by the decision in case of DCITv. Quark Systems (P.) Ltd. (2010) 132 TTJ (Chd) (SB) 1 as well as decisions relied upon by the counsel for the assessee. In view of the aforesaid, we do not find any infirmity in the directions of DRP in excluding Asian Business Exhibition and Conferences Limited as a comparable. The ground raised is therefore dismissed."

We heard the rival submissions and gone through relevant material.

Following the above decision, the assessee’s plea is allowed. The AO/TPO is directed to exclude this comparable .

2. ICC International Agencies Ltd :

The assessee submitted before the DRP that this company is functionally not comparable since it is engaged in trading activity and thereby functionally different. The DRP rejected this company for the reason that this company is functionally dissimilar and for incorrect margin computation made by the TPO. The Revenue is on appeal . The assessee pleaded that this is functionally different and relies on this Tribunal decision in ITO v Interwoven Software Services(India) P Ltd [TS -

723-ITAT -2016 –Bang-TP ay 2010-11. The relevant portion of the order IT(TP)A.1487 & 1496/Bang/2015 Page - 36

[IT(TP)A.No.461/Bang/2015 dt 26.8.2016 for a y 2010-11 is extracted as under :

“28. For this segment, the assessee is seeking exclusion of two comparables i.e. M/s Acentia Technologies Ltd., and M/s ICC International Agencies Ltd., The claim of assessee regarding exclusion of M/s Acentia Technologies Ltd. is also covered in favour of the assessee by the same Tribunal order rendered in the case of M/s Electronics for Imaging India (P)Ltd.,(Supra) and respectfully following the same Tribunal order, we direct the AO/TPO to exclude this company from the list of final comparable because the ld. DR of the revenue could not point out any difference in facts.

30. In the combined result, the appeal of the assessee and revenue are partly allowed.”

We heard the rival submissions and gone through relevant material.

Following the above decision, the assessee’s plea and the DRP’s directions are upheld and the Revenue’s appeal is dismissed.

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