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Income Tax Appellate Tribunal, MUMBAI BENCH “K”, MUMBAI
Before: SHRI G.S. PANNU & SHRI AMIT SHUKLA
O R D E R PER G.S. PANNU, AM :
The captioned are two appeals relating to the same assessee for Assessment Years 2008-09 and 2009-10. Since common issues are 2 M/s. Synovate India Pvt. Ltd. 1544/Mum/2014 involved in both years, they have been clubbed together and heard together and a consolidated order is being passed for the sake of convenience and brevity. The appeal of Revenue for Assessment Year 2009-10 is taken up as the lead case in order to appreciate the controversy.
ITA No. 1544/Mum/2014 (A.Y - 2009-10)
The captioned appeal by the Revenue is directed against the order passed by Assessing Officer, Mumbai dated 7.1.2014 u/s 143(3) r.w.s 144C(5) of Income Tax Act, 1961 (in short ‘the Act’) as per the directions of the Dispute Resolution Panel-II, Mumbai dated 16.12.2013.
In this appeal, Revenue has raised the following Grounds of appeal :-
“(i) Whether on the facts and circumstances of the case and in law, the Hon'ble DRP erred in directing the TPO to treat the assessee-company as market research company and not IT enabled services company without appreciating the fact that the substantial chunk of assessee’s work consisted of data processing with the help of computers and the activity of the assessee-company is the covered under the ambit of CBDT Circular No. SO 890(E) Dated 26/09/2000.
(ii) Whether on the facts and circumstances of the case and in law, the Hon'ble DPR erred in not appreciating the fact that in AY 2008-09 the assessee-company was treated as ITes company by the TPO and this action was upheld by the DRP.
2. The appellant prays that the order of the DRP on the above grounds be set aside and that of the A.O be restored.”
3 M/s. Synovate India Pvt. Ltd. 1544/Mum/2014
The relevant facts and background which is necessary to understand the dispute can be summarized as follows. The assessee is a company incorporated under the provisions of Companies Act, 1956 and is engaged in rendering market research services for its customers. Almost entire shareholding of the assessee-company is held by M/s. Synovate (Holding) Ltd., which in-turn, is a subsidiary of Aegis Group Plc., UK. Aegis Group Plc., UK has two divisions, namely, Aegis Media, which is in the field of independent media communications network and the second division is M/s. Synovate, which is globally in the field of market research. During the assessment year under consideration, assessee rendered market research services both to its associated enterprises as well as to non-associated enterprises. Notably, assessee had also availed of market research services from its associated enterprises. As assessee had carried out ‘international transactions’ with its associated enterprises within the meaning of Sec. 92B of the Act, the income arising from such ‘international transactions’ was required to be computed having regard to their arm’s length price as per the mandate of Sec. 92(1) of the Act. In its Transfer Pricing Study report, assessee-company benchmarked the operating profit earned in the segment of market research services rendered to associated enterprises as a percentage of total revenue with the operating profit earned from rendering market research services to non-associated enterprises. In other words, assessee used the margins earned from rendering market research services to non-associated enterprises as an internal Transaction Net Margin Method (TNMM) comparable and asserted that its margin earned on rendering of market research
4 M/s. Synovate India Pvt. Ltd. 1544/Mum/2014 services to associated enterprises was at an arm’s length price. Similarly, even the segment where assessee was availing of market research services from its associated enterprises, assessee asserted that such ‘international transactions’ were also at an arm’s length price. For this purpose, assessee-company compared the profitability of the transactions where it had received market research services from its associated enterprises and added value by way of further analysis and rendered final services to the third parties with the profitability in case of comparable uncontrolled transactions which did not involve receiving of any services from the associated enterprises. Thus, the stand of assessee was that rendering of market research services to the associated enterprises as well as availing of market research services from associated enterprises were carried out at values which were at an arm’s length price. In this context, the Assessing Officer referred the matter of determination of arm’s length price to the Transfer Pricing Officer (TPO) who vide his order u/s 92CA(3) of the Act dated 28.1.2013 held that Transfer Pricing Study report undertaken by the assessee was not appropriate. The primary area of difference between the assessee and the TPO was in characterizing the transactions undertaken by the assessee with its associated enterprises. In fact, to put it appropriately, the activities undertaken by the assessee has been considered by the TPO as Information Technology Enabled Services (ITES), whereas the stand of assessee is that the activities undertaken by it are simply in the nature of market research services which are clearly distinct and are clearly in contrast to an ITE service provider. The Dispute Resolution Panel (DRP) has appreciated the stand of assessee, not only on the basis of what was already on record during the transfer pricing proceedings
5 M/s. Synovate India Pvt. Ltd. 1544/Mum/2014 before the TPO, but also on the basis of certain documents furnished as additional evidence before the DRP. It is emerging from the order of DRP that such additional evidences were sent to the TPO for his response and after considering the response thereof, the DRP held that benchmarking analysis undertaken by the TPO characterising the assessee-company as an ITE service provider was erroneous. Instead, the DRP upheld the stand of assessee that its activities are required to be characterised as a market research service provider. After upholding the stand of assessee on the issue of characterisation of its activities, the benchmarking analysis carried out by the assessee by using internal TNMM comparable was also found acceptable by the DRP and in this manner it was directed that no addition was required to be made to the stated value of ‘international transactions’ in order to arrive at its arm’s length price.
Before us, Revenue has assailed the aforesaid stand of DRP on the basis of the abovestated Grounds of appeal. A perusal of the Grounds filed by the Revenue reveal that the essential grievance of Revenue is that a substantial chunk of work carried out by the assessee involve data processing with the help of computers and, therefore, the overall services are akin to those which are carried out by an ITE service provider. Apart therefrom, it has also been pointed out that in the Assessment Year 2008-09, which is also under consideration before us, the DRP had concurred with the stand of the TPO that the activities of assessee could be characterised as an ITE service provider. At the time of hearing, the ld. DR has reiterated the stand of Revenue for the 6 M/s. Synovate India Pvt. Ltd. 1544/Mum/2014 reasons stated in the Grounds of appeal, which we have already adverted to earlier and are not being repeated for the sake of brevity.
On the other hand, the learned representative for the respondent-assessee pointed out that the DRP has made no mistake in holding that the activities/functions undertaken by assessee are completely different from the activities/functions performed by an ITE service provider and, therefore, there was no merit in the appeal of Revenue.
As the aforesaid discussion would reveal, the crux of the controversy between the assessee and the Revenue is centered around the characterisation of functions/activities undertaken by the assessee while rendering services to its associated enterprises. As per the assessee, it is engaged in carrying out market research services for its customers, which included associated as well as non- associated enterprises. The stand of assessee is that there is a difference between a market research service provider and an ITE service provider. It is quite well understood that market research service provider would mean a person which is engaged in conducting market research in any manner, either in relation to any product, service or any utility and including all allied research services which would be customised to a particular situation. In common parlance, market research is understood as referring to collecting, collating and analysing of information or data consisting of a particular subject which may be a product, service, geographical area, industry, etc. The DRP has succinctly brought out the various stages that are involved in the 7 M/s. Synovate India Pvt. Ltd. 1544/Mum/2014 market research process, namely, problem definition, development of an approach to the problem, research design formulation, field work or data collection, data preparation & analysis and report preparation & presentation, etc. In contrast, ITE services are primarily understood as an activity whereby certain processes are outsourced, which are enabled with the help of information technology. In fact, the CBDT in its Circular no. SO 890(E) dated 26.9.2000 enumerates the Information Technology enabled products or services as Back office operations; Call centres; Content development or Animation; Data Processing; Engineering and Design; Geographical Information System services; Human Resources services; Insurance claim processing; Legal database; Medical transcription; Pay roll accounting; Support centres; Website services, etc. It is quite clear that the ITE services involve a predominant use of technology to achieve the desired output. The illustrative list of activities brought out by CBDT clearly show that ITE services involve routine human tasks which are carried out more and more by use of technology on the part of human resources. In contrast, if we were to compare such like services with the activities of a market research service provider, it would be evident that in market research, output is the product of collecting, collating and analysing of information/data, which may involve use of technology, whereas in the case of ITE services, rendering of services is primarily driven by use of technology on the part of human resources. In our considered opinion, the DRP was quite justified in coming to conclude that market research services undertaken by assessee cannot be compared with ITE services. In fact, in para 9 of the order of DRP, distinction between market research agency and an IT-enabled service provider under the Service
8 M/s. Synovate India Pvt. Ltd. 1544/Mum/2014 Tax Rules has also been tabulated which clearly shows that the two are incomparable. Therefore, under these circumstances, the TPO was clearly in error in benchmarking the ‘international transactions’ entered by the assessee on account of market research services with the concerns which were engaged in providing ITE services, since the two activities were incomparable.
At this stage, we may also note that before the DRP, assessee had also furnished a communication from Market Research Society of India (MRSI), a trade association of market research entities, wherein those concerns were listed which are engaged in the business of market research services. The said list also included the name of assessee. Be that as it may, it is quite clear that a concern involved in rendering of ITE services cannot be compared with a concern which is rendering market research services, as is the case of the assessee. Therefore, insofar as the issue relating to characterisation of assessee’s functions are concerned, we find no error on the part of DRP in upholding the stand of assessee that the TPO erroneously considered it as an ITE service provider.
In this view of the matter, we find no merit in the Ground of appeal raised by the Revenue and as a consequence, appeal of Revenue for Assessment Year 2009-10 is dismissed.
Insofar as appeal of assessee for Assessment Year 2008-09 is concerned, the same is directed against the order passed by Assessing
9 M/s. Synovate India Pvt. Ltd. 1544/Mum/2014 Officer, Mumbai dated 27.8.2012 u/s 143(3) of Income Tax Act, 1961 (in short ‘the Act’) as per the directions of the Dispute Resolution Panel-II, Mumbai dated 30.7.2012.
In this appeal, assessee has raised the following Grounds of appeal :-
“1. The AO/TPO/DRP erred in making an addition of Rs. 7,69,88,134/- under Chapter X of the Income-tax Act, 1961.
2. The AO/TPO/DRP erred in law and facts in holding Accentia Technologies Ltd. (Seg.) which is an ITES company having an Information Technology or Computer driven product as a comparable company which is completely different from the appellant's customised research product and further erred in taking this company as a comparable as the Functions, Assets & Risks (FAR) are substantially different from the appellant.
3. The AO/TPO/DRP erred in law and facts in holding Acropetal Technologies (Seg.) which is an ITES company having an Information Technology or Computer driven product as a comparable company which is completely different from the appellant's customised research product and further erred in taking this company as a comparable as the Functions, Assets & Risks (FAR) are substantially different from the appellant.
4. The AO/TPO/DRP erred in law and facts in holding Aditya Birla Minacs Worldwide which is an ITES company having an Information Technology or Computer driven product as a comparable company which is completely different from the appellant's customised research product and further erred in taking this company as a comparable as the Functions, Assets & Risks (FAR) are substantially different from the appellant.
5. The AO/TPO/DRP erred in law and facts in holding Asit C Mehta Financial Services Ltd (Seg.) which is an ITES company having an Information Technology or Computer driven product as a comparable company which is completely different from the appellant's customised research product and 10 M/s. Synovate India Pvt. Ltd. 1544/Mum/2014 further erred in taking this company as a comparable as the Functions, Assets & Risks (FAR) are substantially different from the appellant.
6. The AO/TPO/DRP erred in law and facts in holding Caliber Point Business Solutions Ltd which is an ITES company having an Information Technology or Computer driven product as a comparable company which is completely different from the appellant's customised research product and further erred in taking this company as a comparable as the Functions, Assets & Risks (FAR) are substantially different from the appellant.
7. The AO/TPO/DRP erred in law and facts in holding Coral Hubs Ltd which is an ITES company having an Information Technology or Computer driven product as a comparable company which is completely different from the appellant's customised research product and further erred in taking this company as a comparable as the Functions, Assets & Risks (FAR) are substantially different from the appellant.
8. The AO/TPO/DRP erred in law and facts in holding Cosmic Global Ltd which is an ITES company having an Information Technology or Computer driven product as a comparable company which is completely different from the appellant's customised research product and further erred in taking this company as a comparable as the Functions, Assets & Risks (FAR) are substantially different from the appellant.
9. The AO/TPO/DRP erred in law and facts in holding Crossdomain Solutions Ltd which is an ITES company having an Information Technology or Computer driven product as a comparable company which is completely different from the appellant's customised research product and further erred in taking this company as a comparable as the Functions, Assets & Risks (FAR) are substantially different from the appellant.
10. The AO/TPO/DRP erred in law and facts in holding Datamatics Financial Services Ltd (Seg.) which is an ITES company having an Information Technology or Computer driven product as a comparable company which is completely different from the appellant's customised research product and further erred in taking this company as a comparable as the Functions, Assets & Risks (FAR) are substantially different from the appellant.
11 M/s. Synovate India Pvt. Ltd. 1544/Mum/2014
11. The AO/TPO/DRP erred in law and facts in holding e4e Healthcare Solutions Ltd which is an ITES company having an Information Technology or Computer driven product as a comparable company which is completely different from the appellant's customised research product and further erred in taking this company as a comparable as the Functions, Assets & Risks (FAR) are substantially different from the appellant.
12. The AO/TPO/DRP erred in law and facts in holding Eclerx Services Ltd which is an ITES company having an Information Technology or Computer driven product as a comparable company which is completely different from the appellant's customised research product and further erred in taking this company as a comparable as the Functions, Assets & Risks (FAR) are substantially different from the appellant.
13. The AO/TPO/DRP erred in law and facts in holding Genesys International Corporation Ltd which is an ITES company having an Information Technology or Computer driven product as a comparable company which is completely different from the appellant's customised research product and further erred in taking this company as a comparable as the Functions, Assets & Risks (FAR) are substantially different from the appellant.
14. The AO/TPO/DRP erred in law and facts in holding HCL Comnet Systems & Services Ltd (Seg.) which is an ITES company having an Information Technology or Computer driven product as a comparable company which is completely different from the appellant's customised research product and further erred in taking this company as a comparable as the Functions, Assets & Risks (FAR) are substantially different from the appellant.
15. The AO/TPO/DRP erred in law and facts in holding Infosys BPO Ltd which is an ITES company having an Information Technology or Computer driven product as a comparable company which is completely different from the appellant's customised research product and further erred in taking this company as a comparable as the Functions, Assets & Risks (FAR) are substantially different from the appellant.
12 M/s. Synovate India Pvt. Ltd. 1544/Mum/2014
16. The AO/TPO/DRP erred in law and facts in holding Iservices India Pvt Ltd which is an ITES company having an Information Technology or Computer driven product as a comparable company which is completely different from the appellant's customised research product and further erred in taking this company as a comparable as the Functions, Assets & Risks (FAR) are substantially different from the appellant.
17. The AO/TPO/DRP erred in law and facts in holding Maple eSolutions Ltd which is an ITES company having an Information Technology or Computer driven product as a comparable company which is completely different from the appellant's customised research product and further erred in taking this company as a comparable as the Functions, Assets & Risks (FAR) are substantially different from the appellant .
18. The AO/TPO/DRP erred in law and facts in holding Mold-Tek Technologies Ltd which is an ITES company having an Information Technology or Computer driven product as a comparable company which is completely different from the appellant's customised research product and further erred in taking this company as a comparable as the Functions, Assets & Risks (FAR) are substantially different from the appellant.
19. The AO/TPO/DRP erred in law and facts in holding R Systems International (Seg.) which is an ITES company having an Information Technology or Computer driven product as a comparable company which is completely different from the appellant's customised research product and further erred in taking this company as a comparable as the Functions, Assets & Risks (FAR) are substantially different from the appellant.
20. The AO/TPO/DRP erred in law and facts in holding Spanco Ltd (Seg.) which is an ITES company having an Information Technology or Computer driven product as a comparable company which is completely different from the appellant's customised research product and further erred in taking this company as a comparable as the Functions, Assets & Risks (FAR) are substantially different from the appellant.
The AO/TPO/DRP erred in law and facts in holding Triton Corp Ltd which is an ITES company having an Information Technology or Computer
13 M/s. Synovate India Pvt. Ltd. 1544/Mum/2014 driven product as a comparable company which is completely different from the appellant's customised research product and further erred in taking this company as a comparable as the Functions, Assets & Risks (FAR) are substantially different from the appellant.
22. The AO/TPO/DRP erred in law and facts in holding Wipro Ltd (Seg.) which is an ITES company having an Information Technology or Computer driven product as a comparable company which is completely different from the appellant's customised research product and further erred in taking this company as a comparable as the Functions, Assets & Risks (FAR) are substantially different from the appellant.
The AO/TPO/DRP erred in holding the Arm's length Price of Management Fees as NIL under Chapter X of the Income-tax Act, 1961.
The AO/TPO/DRP erred in the facts and in law in upholding the Ld. AO's action of ignoring the Revised Transfer Pricing Return filed on 12.10.2011 wherein the International Transactions are Rs. 19,08,43,598/- and instead wrongly adopting the transaction value of Rs. 20,65,79,237/-.
The Ld. DRP erred in the facts and in law in upholding the enhancement made by the Ld. AO in the income of the Appellant by Rs. 5,33,404/-on account of disallowance of proportionate interest on the Work- in-Progress.
The Ld. AO erred in the facts and in law in enhancing the income of the Appellant by Rs.2,70,375/- on account of disallowance of the deduction u/s 80G of the Income Tax Act, 1961.
The Ld. AD erred in the facts and in law in levying of interest u/s 234B & 234D of the Income Tax Act, 1961.
The Ld. AD erred in the facts and in law in initiating Penalty u/s. 271(1}(c) of the Income Tax Act, 1961.”
14 M/s. Synovate India Pvt. Ltd. 1544/Mum/2014
At the time of hearing, it has been pointed out that though assessee has raised multiple Grounds of appeal, but insofar as Grounds of appeal no. 1 to 22 are concerned, same relate to transfer pricing adjustment of Rs.7,69,88,134/- carried out in determining arm’s length price of the ‘international transactions’ with associated enterprises. It was pointed out that the primary dispute arises from stand of the TPO in holding that assessee was to be classified as an ITE service provider and not as a market research company for the purpose of benchmarking ‘international transactions’ carried out with its associated enterprises. It was a common point between the parties that the aforesaid controversy is pari materia to the dispute adjudicated by us in the appeal for Assessment Year 2009-10 in the earlier paragraphs. Consequently, our decision on this issue is for Assessment Year 2009-10 shall apply mutatis mutandis in Assessment Year 2008-09 also.
Consequent to our aforesaid decision, in the present year, the matter of determination of arm’s length price of ‘international transactions’ of rendering market research services is restored back to the file of TPO/Assessing Officer in order to enable the Assessing Officer to verify the computation of arm’s length price determined by the assessee in the same manner as was upheld by the DRP in Assessment Year 2009-10. Notably, in Assessment Year 2009-10, the DRP, after accepting the classification of assessee as a market research service provider, accepted the benchmark analysis carried out by assessee on the basis of internal TNM method. Notably, this aspect of the decision
15 M/s. Synovate India Pvt. Ltd. 1544/Mum/2014 of DRP for Assessment Year 2009-10 has not been challenged by the Revenue in the Grounds of appeal for Assessment Year 2009-10, which is revealed from the earlier paras of this order. Therefore, in order to ensure uniformity in the approach of determination of arm’s length price, the issue in this year is being restored back to the file of TPO/Assessing Officer to verify as to whether the computation of arm’s length price by the assessee is in the same manner as accepted by the DRP in Assessment Year 2009-10. Needless to say, the TPO/Assessing Officer shall carry out the aforesaid exercise after allowing assessee a reasonable opportunity of being heard in accordance with law. The aforesaid would dispose of the Grounds of appeal no. 1 to 22.
Insofar as Ground of appeal no. 23 is concerned, same was not pressed at the time of hearing, as being infructuous, and is being dismissed as such.
Insofar as Ground of appeal no. 24 is concerned, same deals with adoption of a wrong figure while considering the transaction values, which Assessing Officer may correct in the ensuing remanded proceedings. We hold so.
Insofar as Ground of appeal no. 25 is concerned, same relates to disallowance of proportionate interest of Rs.5,33,404/- on the value of work-in-progress. The aforesaid ground reflects the action of Assessing Officer in notionally adding interest component in the valuation of work-in-progress. This stand of the Assessing Officer was based on his stand in the case of assessee for the earlier assessment years. At the 16 M/s. Synovate India Pvt. Ltd. 1544/Mum/2014 time of hearing, it has been pointed out that in the past years, namely, Assessment Years 2004-05 and 2005-06, in a consolidated order passed by the Tribunal vide & 7334/Mum/2008 dated 27.10.2010, stand of assessee has been upheld that no addition can be made on account of notional interest in the valuation of closing work- in-progress. Following the aforesaid precedent, which has also been subsequently applied by the Tribunal in the case of assessee for Assessment Years 2006-07 and 2007-08 in ITA nos. 7057 & 7058/Mum/2010 dated 5.6.2015, the said addition deserves to be deleted. We hold so. Thus, on this Ground, assessee succeeds.
So far as Ground of appeal no. 26 is concerned, same relates to denial of deduction u/s 80G of the Act of Rs.2,70,375/-. In this context, the learned representative for the assessee pointed out that the claim for deduction u/s 80G of the Act has been unfairly denied by the Assessing Officer merely because same was not made in the return of income. It has been explained that after receipt of draft assessment order, assessee filed objections before the DRP and raised the issue of deduction u/s 80G of the Act and the DRP directed the Assessing Officer to verify the claim and allow as per the Act. However, the Assessing Officer denied the claim of deduction u/s 80G of the Act. It was pointed out that at pg. 609 of the Paper Book is placed a copy of donation receipt evidencing payment of donation of Rs.5,40,750/- to an entity which was recognized u/s 80G of the Act. Therefore, according to assessee, the claim of deduction u/s 80G of the Act to the extent of Rs.2,70,375/- was quite justified.
17 M/s. Synovate India Pvt. Ltd. 1544/Mum/2014
The ld. DR appearing for the Revenue has not contested the factual matrix brought out by the learned representative for the assessee.
In our considered opinion, it would be in the fitness of things that the Assessing Officer verifies and allows the claim of assessee for deduction u/s 80G of the Act, having regard to the donation receipt, a copy of which has also been placed in the Paper Book at pg. 609. Thus, on this aspect, assessee succeeds for statistical purposes.
Insofar as Ground of appeal no. 27 is concerned, same is consequential in nature and does not require any specific adjudication.
21. The last ground relates to initiation of penalty u/s 271(1)(c) of the Act, which is premature and is dismissed.
Resultantly, whereas appeal of Revenue for Assessment Year 2009-10 is dismissed, that of assessee for Assessment Year 2008-09 is allowed, as above.
Order pronounced in the open court on 9th November, 2016.