SAIPEM INDIA PROJECTS PRIVATE LIMITED,CHENNAI vs. DCIT, CHENNAI

आदेश / O R D E R

PER ABRAHAM P. GEORGE, ACCOUNTANT MEMBER

Facts apropos are that assessee an engineering services 3. provider had filed its return for the impugned assessment year disclosing income of �3,31,83,584/- under normal provision and �6,37,96,564/- u/sec. 115JB of the Act. Since assessee had entered into international transaction with its Associated Enterprises exceeding a value of �15,00,00,000/- a reference was made to the ld. Transfer Pricing Officer (hereinafter referred to ‘’the TPO’’) by the Assessing Officer. Profile of the assessee has been summarized by the ld. TPO at para 3 & 5 of the order dated 22.01.2015 and this is reproduced hereunder:- ‘’Saipem India is engaged in providing engineering and allied services. During the financial year 2010-11. Saipem India exported engineering service and paid technical service charge

ITA No.401/Mds/2016. :- 3 -: to its AEs belonging to the Saipem Group. Under the Engine ring services segment. the main activities of Saipem India could be categorised as follows:

. Project Management; . Engineering ; . Procurement services and; . Site activities ‘Saipem India is engaged in carrying out project management, engineering procurement assistance series, site supervision, commissioning, maintenance for projects in oil & gas, petrochemicals, refineries, chemical and maritime works in India and has its present and planned operations in India. Based on FAR analysis presented in the TP documentation, Saipem India is least complexs entity and does not own any valuable intangibles. Saipem India bears normal market risk, contract risk, foreign exchange fluctuation risk and idle capacity risk in relation to its engineering design series.

Name of the Associate Details of Amount of Method transaction transaction adopted (in �)

Saipem S.A. France, Saipem, Export of TNMM Sp. A. Italy, Global Petro engineering 122,95,40,811 projects Services AG, services Switzerland, Saipem Singapore Pte, Ltd, Singapore Saipem, Sp. A. Italy, Saipem Reimbursement -- S.A. France, Saipem of expenses 9,59,24,875 Singapore Pte, Ltd, Singapore, Saipem Asia SDN BHD, Malaysaia Saipem S.A. France, Saipem, Recovery of 16,93,25,014/- --

ITA No.401/Mds/2016. :- 4 -:

Sp. A. Italy, Global Petro expenses projects Services AG, Switzerland, Saipem Singapore Pte, Ltd, Singapore and other TOTAL 149,47,90,703

Company Name 2011 12 months

M.N. Dastur & Company (P) Ltd 3.13% Stewarts and Lloyds India Limited -19.87% Toyo Engineering India Ltd 13.98% Arithmetic mean(%) -0.92% Assessee has worked out its own Profit Level Indicator as under:-

Particulars Engineering and Allied services Income Service Income 1,426,613,672 Other Income 15,890,156

ITA No.401/Mds/2016. :- 5 -:

Total Operating Cost 1,442,503,828 Expenditure:-

Personal Expenses 829,043,265 Other Operating and Administrative 504,751,396 expenses.

Depreciation 35,855,723 Finance Charges 1,152,404 Less: Idle time cost 95,505,056 (Being idle capacity in respect of personal and rental cost)

Total Operating cost 1,274,997,732 Operating/ Net profit 167,506,096 Operating profit/operating cost 13.14% The profit level indicator adopted was the ratio of operating profit to operating cost. As per assessee, its own PLI was much more than that of comparables and therefore there was no requirement for any adjustment on the pricing of its international transactions with the Associated Enterprises.

incurred considerable material cost and was doing fabrication work.

Though assessee submitted that material consumption of M/s.Stewarts & Lloyds Ltd as a percentage to its operating cost was only 8.02%, this was not accepted by the ld. TPO. According to ld. TPO, M/s.Stewarts & Lloyds Ltd was engaged in a different type of activity and had significant investments in plant and machinery. There were no segmental results and hence as per ld. TPO, M/s.Stewarts & Lloyds Ltd could not be considered as a proper comparable. Ld. TPO thereafter made his own study prowess and capital line plus database and indentified M/s. Mahindra Consulting Engineers Ltd., and M/s.

Kirloskar Consultants Ltd as comparable to the assessee in addition to M/s. MN Dastur & Company (P) Ltd and Toyo Engineering India Ltd. appearing in the list of the assessee. Assessee objected to the selection of M/s. Mahindra Consulting Engineers Ltd. as a comparable citing diversified portfolio of its consultancy, which as per the assessee was similar to advisory consultancy. Further, as per the assessee they were catering to a different market. However, these objections were rejected by the ld.TPO. As per ld. TPO engineering design services performed by the assessee included allied services also and the services performed by M/s. Mahindra Consulting Engineers Ltd. fell into the latter category. It seems assessee had no objection to ITA No.401/Mds/2016. :- 7 -: the inclusion of M/s. Kirloskar Consultants Ltd in the list of comparables.

Name of the comparable Margin in % M/s. Mahindra Consulting Engineers Ltd 29.52 M.N. Dastur & Company (P) Ltd 3.13 Toyo Engineering India Ltd, 13.98 Kirloskar Consultants Ltd -1.35 Average 11.32

ITA No.401/Mds/2016. :- 8 -:

Ld. TPO applied average PLI of 11.32% of the comparables on the operative cost of the assessee and worked out an upward adjustment of �8,34,73,835/-. The work out made by the ld. TPO is reproduced hereunder:-

Assessee’s Financials:-

Operating Cost : 137,08,02,788 Operating Profit : 7,17,01,040 Operating Revenue : 144,25,03,828

Operating profit @11.32% of cost : 15,51,74,875 Operating cost : 137,08,02,788 Arm’s length revenue : 152,59,77,663 Operating Revenue : 144,25,03,828 Adjustment proposed : 8,34,73,835

assailed non consideration of two new comparables suggested by it namely M/s. Desein Private Limited and Blue Star Design & Engineering Ltd, suggested by the assessee. ld. DRP disposed off these objections observing as under:-

‘’Since assessee's objections 1.4 to 1.13 are interrelated, the same are being taken up together. The submissions of the assessee on these objections have duly been considered. As regards assessee's objection of TPO rejecting its TP study and applying fresh filters, the issue has been dealt in detail by the TPO. Reason for rejection of comparables adopted or suggested by the assessee, are given by TPO in his order. He has also given his findings as to why assessee ‘s objection regarding comparables proposed by the TPO cannot be accepted. So, as such, there is no infirmity in the order of TPO in relation to rejection of certain comparables proposed by the assessee. During hearings also the assessee could not controvert the findings of the TPO. During hearings the assessee was asked to show that the two additional comparables selected by it satisfied the filters adopted by the TPO e.g related party transaction filter, ₹ 1crore turnover filter etc. and that the same are functionally similar to the assessee. However, assessee failed to produce annual reports of the two comparables from which the profit and loss account of the two comparables proposed by it could have been examined and applicability of filters and functional similarity could have been looked into. So objections of the assessee on this issue are not accepted’’.

Thereafter assessment was completed in accordance with ld. DRP directions.

ITA No.401/Mds/2016. :- 10 -: of the assessee. As per ld. Authorised Representative profile of the assessee was captured in its transfer pricing study for the relevant assessment year. Relying on the paper book page no.220 and 221, ld. Authorised Representative submitted that assessee was engaged in engineering services relating to oil and gas industry for offshore and onshore projects. As per ld. Authorised Representative engineering services done by the assessee was only in the onshore process systems and offsite services related to oil and gas, chemical and petrochemical and refinery. As per ld. Authorised Representative, other activities of the assessee which was considered by the ld. TPO to be comparable with the activities of M/s. Mahindra Consulting Engineers Ltd was residual activities which were incidental to the main services. Ld. Authorised Representative took us through the annual report of M/s. Mahindra Consulting Engineers Ltd. As per ld. Authorised Representative director’s report available at paper book page 184 clearly proved that the said company was doing engineering consultancy in infrastructure especially in the area of Special Economic Zone, Water supply and sewage, solid waste mangement etc. As per ld. Authorised Representative M/s. Mahindra Consulting Engineers Ltd though it had an intention to do infrastructure consulting services in partnership with an M/s.SAFAGE, France, this had not happened during the relevant previous years. According to him, functional profile

ITA No.401/Mds/2016. :- 11 -: of M/s. Mahindra Consulting Engineers Ltd clearly showed that they were not in oil and refinery sector. As per ld. Authorised Representative they were doing infrastructure consultancy. Thus, according to him, M/s. Mahindra Consulting Engineers Ltd was wrongly considered as a good comparable.

M/s. Blue Star Design & Engineering Ltd. had also to be considered as good comparables. Ld. Authorised Representative submitted that these two companies were also providing engineering consultancy.

Summarizing his arguments, ld. Authorised Representative submitted that M/s. Mahindra Consulting Engineers Ltd had to be excluded and M/s. Stewarts & Lloyds Ltd had to be included in the list of comparables. As per the ld. Authorised Representative in the event M/s. Mahindra Consulting Engineers Ltd was considered as a good comparable, then M/s. Desein Private Ltd and M/s.Blue Star Design & Engineering Ltd also should come in the list.

According to him, functional profile of both assessee as well as M/s.

Mahindra Consulting Engineers Ltd were similar, since both were doing engineering consultancy. Taking us though the profiles of both the companies ld. Departmental Representative submitted that there was little that could differentiate these two. Viz-a-viz M/s. Stewarts & Lloyds Ltd., Ld. Departmental Representative submitted that each assessment year was different. Just because the said company was considered to be good comparable in earlier years would not make it a ITA No.401/Mds/2016. :- 13 -: good comparable for the subsequent year. According to him, assessee could not show that in the earlier years M/s. Stewarts & Lloyds Ltd had any material cost similar to what was incurred by it during the relevant previous year. As for the pleading of the ld. Authorised Representative that two companies namely M/s. Desein Private Ltd & M/s. Blue Star Design & Engineering Ltd, also needed to be considered, Ld. Departmental Representative submitted that assessee could not show similarity in the functional profile of these companies with that of assessee.

Saipem group, of which assessee was a member as under:-

’Saipem Group is a global turnkey contractor in the oil and gas industry., 43 percent of the group is owned by Eni, an Italian multinational Oil and Gas Company. Eni operates in the oiI and gas electricity generation ( and sale. petrochemicals, oilfield services, construction and engineering Industries. Eni is active in 79 countries with a staff of about 80,000 employees. . Saipem Group is a global leader In the provision of ITA No.401/Mds/2016. :- 14 -: engineering, procurement, project Management and construction services with distinctive capabilities In the design and the execution of large - scale offshore and onshore projects. and technological competences such as gas monetisation and heavy oil exploitation. The Saipem group has a strong local presence in strategic and emerging areas such as West Africa, North Africa, Former Soviet Union Countries (FSU), Central Asia, Middle East and South East Asia. The vastly diversified group is organised In three business units:, offshore, onshore and Drilling with a strong bias towards oil and gas related activities in remote areas and deep water. Offshore Saipem off shore's vast spectrum of activities is comprehensive or platforms. marine terminals. pipelines, subsea deep water developments. FPSOs .(Floating production storage and offloading). The engineering and project management expertise to carry out EPIC contracts. has been fostered with the acquisition of Bouygues Offshore in 2002. and Snamprogetti in 2006. Onshore

With the acquisition of Snamprogetti, the business unit, Saipem Onshore, has become one of the world's largest engineering and construction companies, serving primarily the oil and gas, refining and petrochemical markets as well as a number of diversified Industrial ones, such as environment, infrastructure, marine terminals, etc. Saipem offers a complete range of project definition and execution services, particularly for the "rnega- projects" required by the market from feasibility and front end studies to design, engineering, procurement and field construction. Saipem mainly operates from four global engineering centres for onshore projects located in Milan and Fano In Italy, Paris, France and Chennai, India’’.

ITA No.401/Mds/2016. :- 15 -:

It is to be noted that the above was the profile of Saipem group and not that of assessee company namely Saipem India Projects Ltd, as such. Functional profile of assessee is captured at paragraph 3 & 4 of ld. TPO which are reproduced hereunder:-

‘’Functions performed Saipem India covers the entire spectrum of upstream I downstream as well as onshore I offshore projects right from conceptual studies through detailed and field engineering. Saipem India also provides value a services like feasibility studies. estimation and proposals. procurement assistance services including market scouting. cost estimate. request for quotation, technical and commercial evaluations, post-order management including inspection and expediting. shipment and customs clearance in oil and gas (onshore and offshore), cryogenic tanks, refining. petrochemicals and power. Saipem India undertakes to provide execution or the process activities for both the primary onshore process systems (refinery, chemical and petrochemical, oil and gas) and utilities and offsite services. Basically Saipem India'soffer1ngs can be categorized as follows:

ITA No.401/Mds/2016. :- 16 -: civil, structural, mechanical, electrical, instrumentation, piping etc. 2. PROJECTS SERVICES This consist of undertaking technical assistance to the projects of clients and performing services such as coordination of design activities. field engineering, commissioning assistance, construction supervision, material control. project control. planning. quality control I assurance. and safety at construction sites and other technical assistance activities

This consist of the execution of the process activities for both the primary onshore process systems (refinery. chemical & petrochemical. oil & gas) and utilities& offsite. that may be required by customers. These include the execution of process activities for feasibility studies, basic front end detailed engineering and process technical assistance related to onshore plant design works. Besides. it also includes process support to plant commissioning start-up and performance test run. The process engineering Services shall be carried out by the New Delhi process Centre 4. OTHER ACTIVITIES:-

Saipem India engages itself in any residuary activities, incidental to the provision of main service. Engineering activities in Saipem India are supported by a comprehensive panel of software , from specific standalone software such as HYSIS, PROII, HTRI,SACS, ABAQUS to integrated platforms such as smart plant P&ID, PCS, PDMS, Autocad or Micro station. Saipem India uses 3D modelling through PDS or PDMS. Additional software and tools are added on project need basis together with adequate trainings for their personal.

ITA No.401/Mds/2016. :- 17 -:

Saipem India renders services to both the group companies, which are its AEs as well as non- group or I third parties. These services are rendered from India (Off-site) as well as on-site and Saipem India is remunerated on an hourly basis I fixed price for the same.

A reading of the above two profiles clearly show that M/s. Saipem group of which assessee was a part, was not only serving oil and gas but were into diversified industries like environment, infrastructure and marine terminals. Coming to the specific functions performed by the assessee captured above it clearly show that assessee was providing engineering and allied services not to oil and gas industries alone. It was giving support services for plant commissioning start up and performing test run. In such circumstances contention of the assessee that M/s. Mahindra Consulting Engineers Ltd was engaged in consultancy engineering of a totally different variety, which were not comparable to it cannot be accepted. As mentioned by ld. Departmental Representative a strict product or service similarity is not required when TNMM is selected as most appropriate method, in a transfer pricing study.

ITA No.401/Mds/2016. :- 18 -:

‘During the year under review, your Company consolidated its presence in Infrastructure Consulting Sector and registered a high growth in several areas of operation. Your Company's income for the year has increased to ₹1,1 01.56 takhs as compared to ₹936.89 lakhs in the previous year, registering a growth of 17.58%. Prom before taxation for the year was ₹253.54 lakhs as compared to Rs.175.65 lakhs for the. previous year, representing an increase of 44.34%.

During the year under review, your Company has bagged several prestigious and first of its kind assignments. Your Company has further strengthened its position in Infrastructure Sector by providing consultancy services in the areas Zones, Water supply and Solid waste management, Urban infrastructure Agri and Horti infrastructure, Social infrastructure, Marine infrastructure, Industrial infrastructure . Renweable energy, sustainability studies, , Institutional strategies I Planning studies, Industrial plats and systems. etc:--'" Your Company has also implemented several innovative and sustainability ideas in its projects and is augmenting its efforts to consolidate its position as a front runner in innovate projects. Your company continues to receive orders from prestigious and existing clients in different sectors indicating its versatile capability of providing consultancy services for Multi disciplinary projects which affirms the goodwill of your company. This would also serve as a base for the company’s sustained growth in the future. During the year under reveiw, your company has got itself emplaned with various Central/State Government nodal agencies entrusted with responsibility of developing infrastructure in the country’’.

Obviously, M/s. Mahindra Consulting Engineers Ltd was also providing engineering consultancy and services which were functionally similar to what the assessee was doing. In such circumstances, we are of the ITA No.401/Mds/2016. :- 19 -: opinion that lower authorities were justified in considering M/s.

Mahindra Consulting Engineers Ltd as a good comparable.

ITA No.401/Mds/2016. :- 20 -: for assessment years 2008-09, 2009-2010 and 2010-2011. For the impugned assessment year, ld. TPO refused to consider it as a good comparable for a reason that it had material cost of 8.02% to the total operating cost. Argument of the assessee is that, cost of material was not significant enough to consider the said company to be engaged in manufacturing/production. In our opinion, this is an acceptable argument. The cost of materials and total operating cost of M/s.

Stewarts & Lloyds Ltd for the relevant previous years was as under:-

Particulars Amount in INR

Cost of Materials (A) 20,683,368 Total Operating Costs(B) 257,752,236 Percentage of total costs (A/B) 8.02 per cent We do find that material cost was not significant enough to come to a conclusion that the said company was having an independent manufacturing /production segment, requiring a segmental analysis.

Therefore, we are of the opinion that M/s. Stewarts & Lloyds Ltd was a good comparable.

ITA No.401/Mds/2016. :- 21 -:

Ltd, Kirloskar Consultants Ltd and M/s. Stewarts & Lloyds Ltd. Ld. TPO is directed to rework the PLI of the above comparables and recomputed the Arms Length Price adjustment if any necessary.

Ordered accordingly.

Order pronounced on Friday, the 25th day of November, 2016, at Chennai.