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Income Tax Appellate Tribunal, ‘B’ BENCH: BENGALURU
Before: SHRI INTURI RAMA RAO & SHRI LALIET KUMAR
Per INTURI RAMA RAO, AM :
This is an appeal filed by the revenue directed against the final assessment order passed u/s 143(3) r.w.s. 144C of the Income-tax Act,1961 [‘the Act’ for short] dated 30/12/2014 for the assessment year 2010-11.
The revenue raised the following grounds of appeal:
IT(TP)A No.494/Bang/2015 Page 2
Briefly facts of the case are as under: The respondent- assessee is a company incorporated under the provisions of the IT(TP)A No.494/Bang/2015 Page 3 Companies Act, 1956. It is wholly subsidiary of LVL7 Systems Inc. USA. It is engaged in the business of software development services to its Associated Enterprises (AEs) and responsible for testing of maintaining processes as well as new development activity. It filed return of income for assessment year 2010-11 on 29/09/2010 declaring total income of Rs.1,38,02,149/-. The assessee-company also reported the following international transactions with its AE in Form 3CEB:
The assessee-company sought to justify the consideration received for the international transaction entered with its AE to be at arm’s length. The assessee-company had also submitted transfer pricing study report adopting the operating profit to operating cost (OP/OC) as a profit level indicator (PLI) for the transfer pricing study. For the purpose of TP study, the assessee- company adopted Transactional Net Margin Method [TNMM] which was considered to be the most appropriate method for purposes of bench marking the international transactions. The assessee- company’s profit margin was computed at 12.09% and the assessee-company claimed that the same was comparable with other companies rendering software development services. For the purpose of transfer pricing study, the assessee-company had IT(TP)A No.494/Bang/2015 Page 4 chosen 15 comparable entities and arithmetic average of operating profit margins of said comparables was computed at 9.65%. According to the assessee-company, its PLI was much higher than the arithmetic mean of the comparable entities. Hence, it was claimed that the transactions with its AE are at arm’s length.
In respect of transactions of reimbursement of expenses to AE, and remittance of ESPP contribution to AE, no bench marketing has been done. In respect of purchase of fixed assets CUP method has been accepted as the most appropriate method and accordingly assessee-company sought to justify the consideration received to be at arm’s length. In respect of software development services, assessee-company has chosen 15 comparable entities and introduced another 4 during the course of proceedings before the TPO as under: 1 Accel Transmatic Ltd. 2 Akshay Software Technologies Ltd. 3 Axis IT & T Ltd. 4 Aztecsoft Ltd. 5 CG-VAK Software & Exports Ltd. 6 Computech International Ltd. 7 Geometic Ltd. 8 Goldstone Technologies Ltd. 9 Infotech Enterprises Ltd. 10 LGS Global Ltd. 11 Maars Softward International Ltd. 12 Mascon Global Ltd.
IT(TP)A No.494/Bang/2015 Page 5 13 Mindtree Ltd. 14 R S Software (India) Ltd. 15 Sasken Communication Technologies Ltd. 16 Sonata Software Ltd. 17 TVS Infotech Ltd. 18 Tata Elxsi Ltd. 19 VMF Soft Tech Ltd.
The AO referred the matter to the TPO for bench marking above international transactions. The TPO, by order dated 24/09/2013 passed u/s 92CA of the Act computed TP adjustment at Rs.3,14,60,970/-. The TPO rejected the TP study report submitted by the assessee-company. However, accepted TNMM method adopted by the assessee-company as the most appropriate method. The TPO proceeded to identify different set of comparables for the purpose of bench marking the international transactions. While doing so, the TPO applied the following filters:
IT(TP)A No.494/Bang/2015 Page 6 6. Applying the above TP filters, TPO rejected 11 comparables selected by the assessee-company and introduced 14 comparables. Finally, TPO accepted the following 18 comparables:
TPO computed the average margin of the comparables at 22.69%. After giving working capital adjustment of 2.80% adjusted arithmetic mean of PLI at 19.81%. On the above basis, TPO computed TP adjustment in respect of software development services as under:
IT(TP)A No.494/Bang/2015 Page 7
The AO, after receipt of TPO’s order, passed draft assessment order dated 28/02/2014 u/s 143(3) proposing to make TP adjustment of Rs.3,14,69,975/- and restricted the benefit u/s 10A by reducing telecommunication expenditure and insurance expenditure in foreign currency from export turnover. He also made the some other addition.
Being aggrieved, objections were filed before the DRP contending inter alia that turnover criteria should have been adopted or high profit margin companies should be rejected and also that for the purpose of calculating benefit u/s 10A Telecommunication expenses and insurance expenditure incurred in foreign currency should be reduced both from export turnover as well as total turnover. The DRP, vide its order dated 26/11/2014 held that following 7 companies are not comparable:
IT(TP)A No.494/Bang/2015 Page 8 on the ground that they are high profit making companies and also directed TPO to reduce Telecommunication expenses and insurance expenditure incurred in foreign currency from export turnover as well as total turnover following the law laid down by the Hon’ble jurisdictional High Court in the case of Tata Elxsi Ltd. vs. DCIT (349 ITR 98).
The AO passed final assessment order u/s 143(3) r.w.s. 144(c) of the Act dated 30/12/2014.
Being aggrieved, the revenue is in appeal before us in the present appeal. Ground Nos.2 and 3 relate to direction of the DRP to reduce Telecommunication and insurance expenditure incurred in foreign currency both from export turnover as well as total turnover. Since the DRP has followed the decision of the Hon’ble jurisdictional High Court in the case of Tata Elxsi (supra) and directed the AO to reduce telecommunication and insurance expenditure both from export turnover as well as from total turnover is, the grounds of appeal raised by the revenue are rejected.
11. Ground Nos.4, 5 and 6 challenge exclusion of certain companies viz., E Infochips Bangalore Ltd., Kals Information Systems Ltd., Avani Cimcon Technologies Ltd. and Infosys Technology Ltd, Sasken Communication Tech Ltd., and Persistent Systems & Solutions Ltd.,by the DRP. Out of the above companies, learned counsel for the assessee has no serious
IT(TP)A No.494/Bang/2015 Page 9 objection for acceptance of M/s.Avani Cimcom Technologies Ltd., and Persistent Systems Ltd. Thus, we direct the AO/TPO to include the above companies.
In respect of E Infochips Bangalore Ltd.,, DRP deleted this company from the list of comparables on the ground that this company is engaged into multiple business segments – software development and IT enabled services. In the absence of segmental information this company cannot be considered as a comparable company. It is the contention of the Standing Counsel that the DRP accepted the submission of the assessee-company without going into analysis done by the TPO.
We heard rival submissions and perused the material on record. From the perusal of the Annual Report of E Infochips Bangalore Ltd., placed at page 426 to 429 (at page 427) of the paper book, it is evident that the company is into business of both software development and also IT enabled Services and derives income from consultancy charges and no segmental information was provided by the assessee-company. In the absence of segmental information, this company cannot be compared with that of the software development company. The issue of comparability of this company had come before the co-ordinate bench of this Tribunal in the following decisions:
i. DE Shaw India Software Pvt.Ltd. in (ITAT)(Hyd)
IT(TP)A No.494/Bang/2015 Page 10 ii. Sun Life India Service Centre Pvt. Ltd. (ITA No.750/Del/2015 (ITAT)(Del) and iii. Pegasystems Worldwide India Pvt. Ltd., (IT(TP)A Nos.1758 & 1936/Hyd/2014 )(ITAT, Hyd.) Therefore, respectfully following the decision of the co-ordinate bench, we direct the AO/TPO to exclude this company from the list of comparables.
As regards Sasken Communication Tech Ltd., Infosys Technologies Ltd. and Kals Information System Ltd., the issue of comparability of these companies/entities had come up for consideration before the co-ordinate bench (Bengaluru) in the case of ACIT vs. Broadcom Research India (P) Ltd., (72 taxman.com 77) to which one of us viz, Accountant Member is a party i.e. author of the order, wherein it was held as follows:
13.3 Sasken Communications Technologies Ltd., The DRP deleted this company from the list of comparable on the ground that no segmental information was available. The relevant finding of the DRP is as under: "3.3.5 Having heard the objection, on perusal of the annual report, we find that no segmental information is available in respect of three segments. Hence, the TPO was not justified in retaining the above company as comparable. The company also need to be excluded other functional difference mentioned by the assessee, The Assessing Officer, is therefore directed to exclude the above company from comparable." The revenue had not brought any evidence on record rebutting the above factual findings of the Hon'ble DRP. Therefore, we have no option but to confirm the findings of the Hon'ble DRP.
IT(TP)A No.494/Bang/2015 Page 11 13.5 Infosys Ltd., The DRP held that Infosys Ltd., is not comparable as it is having high brand value and high intangible etc. To come to this conclusion, the DRP relied on the decision of the co-ordinate bench in the case of: • Agnity India Technologies (P.) Ltd. (supra); • Telcordia Technologies India (P.) Ltd. (supra); • Logica (P.) Ltd. (supra); • Sonata Software Ltd. (supra); • Meritor LVS India (P.) Ltd. (supra); • Bearing Point Business Consulting (P.) Ltd. (supra). The co-ordinate bench in the case of Electronics for Imaging India (P.) Ltd. (supra) to which one of us viz., the Judicial Member was a party, also considered this company and held as follows: "19. We have heard the ld. DR as well as ld. AR and considered the relevant material on record. We note that in the case of Agnity India Pvt. Ltd. (supra), the Delhi Bench of the Tribunal has considered the comparability of this company and the findings of the Delhi Bench of the Tribunal has been confirmed by the Hon'ble Delhi High Court. The Hon'ble Delhi High Court has observed that this company having brand value as well as intangible assets cannot be compared with an ordinary entity provide captive service. We further note that this company provides end to end business solutions that leverage cutting edge technology thereby enabling clients to enhance business performance. This company also provides solutions that span the entire software lifecycle encompassing technical consulting, design, development, re-engineering, maintenance, systems integration, package evaluation and implementation, testing and infrastructure management service. In addition, the company offers software product for banking industry. Thus, this company is engaged in diversified services including design as well as technical consultancy, consulting. re-engineering, maintenance, systems integration as well as products for banking industry.
IT(TP)A No.494/Bang/2015 Page 12 20. In view of the above facts that Infosys Ltd. having a huge brand value and intangibles as well as having bargaining power, the same cannot be compared with the assessee who is providing services to its AE." The direction of the Hon'ble DRP is in consonance with the decision of the co-ordinate bench cited supra. No information was brought on record by the revenue rebutting the above findings of the co-ordinate benches. Hence, we uphold the action of the Hon'ble DRP.
13.6 KALS information Systems Ltd. The DRP deleted this company from the list of comparables on the ground that segmental information is not reliable. The relevant finding of the Hon'ble DRP is as follows: "3.3.3 Having heard the objections, we have perused the judicial pronouncement on which the reliance has been placed by the assessee including the decision of the Hon'ble ITAT, Bangalore in the case of Trilogy E Business Software India Pvt. Ltd. v. DCIT (ITA No.1201/Bang/2010) wherein the above company has been excluded on functional differences. Further, it is noticed by us that other income of Rs. 21.03 lakhs which mainly include the interest, dividend and other income has been included in the segmental profit of software segment of Rs. 55.53 lakhs and therefore the segmental information is not reliable. Therefore, in our view, the company cannot be retained as comparable, the objection is accordingly accepted and Assessing Officer is directed to exclude the company from the comparables. " The co-ordinate bench in the case of Electronics for Imaging India (P.) Ltd. (supra) to which one of us viz., the Judicial Member was a party, also considered this company and held as follows: "23. We have heard the ld. DR as well as ld. AR and considered the relevant material on record. The ld. DR has not disputed the fact that comparability of this company has been examined by this Tribunal in a series of decisions including in the case of Trilogy e- business Software India Ltd. (supra). We further note that in the balance sheet of this company as on 31.3.2010 there are inventories of Rs. 60,47,977/-. Therefore, when this company is in the business of software products, the same cannot be compared with a IT(TP)A No.494/Bang/2015 Page 13 pure software development services provider. Accordingly, we do not find any error or illegality in the impugned findings of the DRP." Therefore, this company cannot be compared both on the functionality as well as on the non-availability of segmental information. Accordingly, we uphold the action of the Hon'ble DRP in deleting this company from the list of comparable. ...”
The learned standing counsel for the Revenue has not brought any evidence on record controverting the findings of the Tribunal. Therefore, respectfully following the above order, we hold that this company cannot be considered as comparable.
In the result, appeal filed by the revenue is partly allowed for statistical purposes.