COMPUTER SCIENCES CORPORATION INDIA PRIVATE LIMITED (PREVIOUSLY KNOWN AS APPLABS TECHNOLOGIES PRIVATE LIMITED),HYDERABAD vs. DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-1(1), HYDERABAD

Grounds No. 4 to 6 raised before the Ld.CIT(A): 4. The learned TPO and the learned AO have erred, in not considering extra-ordinary expenses incurred on account of canceflation of employee stock option plan (ESOP) pursuant to acquisition as non-operating in nature. In doing so, the TPO has contradicted his own approach of considering extra-ordinary expense to be non-operating in nature.

6. The learned TPO and the learned AO have erred, in not considering the unrealized forex exchange loss incurred in relation to forex loss on forward contracts and other items as non-operating in nature.” Adjudication by Ld.CIT(A): “6. Ground No. 4 to 6 : Cancellation of Employee Stock Option Plan (ESOP) 6.1. During the appeal proceedings, the appellant submitted that they filed rectification petition u/s.154

before the Assessing Officer. They have received the order and hence the issue is not being pressed before the first Appeal. In this light, the grounds are dismissed.”

4.2. The Ld. AR also submitted that the assessee had raised three issues which are related to i.e. a) Employees Stock Option Plan (ESOP), b) Professional fees and c) forex exchange loss before the Ld. CIT(A) through the aforesaid grounds No. 4 to 6. After filing the said appeal before the Ld. CIT(A), the assessee had filed a rectification application before the Ld.TPO on the issue related to Professional fees only. However the Ld. CIT(A) adjudicated the ground No. 4 to 6 on the misconception that the assessee had filed the rectification application before the Ld. TPO on the issues of ESOP and dismiss the grounds on all the three issues which are related to i.e. a) ESOP, b) Professional fees and c) forex exchange loss. Thus, the Ld. AR argued that the Ld. CIT(A) did not consider the grounds raised by the assessee properly, before passing the order. Hence, Ld. AR requested the Bench to set aside the impugned order and restore the issue to the file of Ld.CIT(A) for fresh consideration of the matter.

4.3. Learned DR, on the other hand, did not have any objection on the request of the assessee in setting aside the issues and restore the same to the file of Ld.CIT(A).

4.4. We have heard the rival submissions and also gone through the record in the light of the submissions made by either side. It is not in dispute that the assessee had moved a rectification application before the Ld. TPO only on the matter of professional fees. However, the Ld. CIT(A) while adjudicating the grounds mistaken the rectification moved on the matter of professional fees as rectification moved on the matter of ESOP and passed the orders on three issues instead of only one issue on which the rectification had been sought by the assessee and accordingly dismiss the appeal of the assessee on these three issues. In our opinion the Ld. CIT(A) failed to appreciate the grounds raised by the assessee properly on merits, before passing the order. Hence, we set aside the issues and restore the same to the file of Ld.CIT(A) with a direction for fresh consideration of the matter in accordance with law, by giving an opportunity of being heard to the assessee. These grounds are accordingly treated as allowed for statistical purposes.

5. The Ld. AR while objecting the adjudication of CIT(A) under para no.7 submitted that the Ld. CIT(A) has dealt with the ground no. 7 to 15 of the various grounds raised before the CIT(A) under para no. 7 of his order. The Ld. AR reproduced as under the ground no. 7 to 15 as raised before the Ld. CIT(A) and the adjudication of the Ld. CIT(A) on the same ground under para No.7 of his order :

Grounds No. 7 to 15 raised before the Ld.CIT(A): Selection of Comparables 7. The learned TPO and the learned AO have erred in the law and facts by selecting the inappropriate/arbitrary filters for selecting the comparable companies.

8. The learned TPO and the learned AO have erred, in law and in facts, by selecting certain additional companies as comparables which are not functionally comparable to the appellant.

9. The learned TPO and the learned AO have erred, in law and facts, by rejecting certain functionally comparable companies identified by the Appellant. Erroneous computation of income of margins of comparable companies.

12. The learned TPO and the learned AO have erred, in not considering the rectification petition filed by the Appellant in relation to mistake apparent from record in considering the professional fees incurred pursuant to acquisition expenses as non-operating in nature. Corporate Guarantee 13. The learned TPO and the learned AO have erred, in law, facts and circumstances of the case in making a TP addition to the transactions relating to provision of corporate guarantee, without appreciating the fact that the said transactions is not covered under the definition of international transaction uls.928 of the Act and that the explanation to section 928 would not apply to the facts of the case. Others 14. The learned TPO and the learned AO have erred, in law and in facts, in using single year data (pertaining to FY 2011-12 only) of the comparables to arrive at the ALP without taking cognizance of the fact that such data may not truly reflect the market realities.

15. The learned TPO and the learned AO have erred, in law and facts, in computing the ALP without giving benefit of +1- 5 per cent under the proviso to Section 92C of the Act.” Adjudication by Ld.CIT(A): “7. Ground Nos.7 to 15: Computation of TP Adjustments u/s.92CA 7.1 The Assessing Officer made an addition of Rs.17,27,99,036/- on account of Arm's Length Price of International Transactions with Associated Enterprises. The Assessing Officer followed the findings of the TPO, vide order u/s.92CA(3) dated 30.01.2016. 7.2 Before me, the appellant submitted that the AO has selected companies that are incomparable and that should not have been taken, as they were in principle different to the Appellant case. The cases which wrongly taken by TPO are as follows: 1) M/s. Acropetal Technologies limited Appellant's contention: Nature of business not same. The Company transformed from a Pure play services provider, to a Business technology Solutions Company. i. Emerged as a leading intellectual property, it led to the product development company ii. Continuously invests on innovation by supporting and providing infrastructure to new products and ideas.

iii. Information technology services segment consist of software product & intellectual property iv. Extra-ordinary event - Acquisition has occured TPO's contention: i. There is segmental information available and one of the segments relates to "Information Technology services" which has been considered as a comparable segment to that of the assessee. ii. The assessee contended that the "Information Technology services" segment contains products also, Assessee did not provide any evidence to this effect. Decision: I accept the view of the TPO and uphold the view that this is a valid comparable. 2) M/s. C T I L Limited Appellant's contention: i. Fails employee cost filter (9.21 %) ii. Enterprise solutions, supply chain management, client relationship management, business, intelligence, business process quality, engineering and product lifecycle management, and infrastructure services. iii. Spent sizable amount towards R&D in e-Iearning space and other areas iv. Significant intangible assets - 92% of total fixed assets TPO's contention: i. As per annual report, CTIL is in the' business of information technology Services Company. It is only its subsidiary companies engaged in infrastructure, BPO services, e-governance, information technology and the company development and not CTIL itself. So there is no requirement of CTIL to have separate segments. ii. No document which contradicts has been placed on record for non-accepting the CTIL as a comparable before the TPO. Decision : I accept the view of the TPO and uphold the view that this is a valid comparable. 3) Igate Global Solutions Limited Appellant's contention: i. Fails related party transactions filter (RPT = 83% of sales) ii. Information technology and IT enabled services iii. Segmental information is not available. iv. Extra-ordinary event - Acquisition of equity share capital TPO's contention: i. As per prowess database, the company is classified under "Software" category. The company satisfies all the filters applied and hence is comparable to the assessee's business. ii. As per assessee's submission, the company has acquired only the current equity shares of MIS Patni. But the assessee failed to provide any evidence as to how such an event has impacted the margins of the company. iii. Related Party transaction is below 25% Decision: I accept the view of the TPO and uphold the view that this is a valid comparable.

4) Larsen & Toubro Infotech Limited Appellant's contention: i. While the segmental details are available, the break-up of software services and products is not specified. ii. Further, the company is providing services to diverse sectors such as Financial services, manufacturing and telecom. iii. Functionally different. TPO's contention: i. As per prowess data baser the company is classified under "Software" category. The company satisfies all the filters applied and hence is comparable to the assessee's business. ii. As per annual report, the assessee earns majority of its revenue from software exports. So there is no requirement of having segmental information. iii. High Brand value does not affect the profitability of the company. Decision: I accept the view of the TPO and. uphold the view that this is a valid comparable. 5) M/s. Persistent Systems Limited Appellant's contention: i. Outsourced software product development services and offers complete product lifecycle services from end to end ii. The outsourced product development services are different from IT services. iii. Segmental information is not available iv. Abnormal year of operations-merger activity

TPO's contention: i. The company has global present in lot of countries and therefore the product design doesn't pertain to India ii. There is no requirement of segmental information iii. There is no evidence as to how the abnormal year of operations (Merger) is affecting profitability. Decision: I accept the view of the TPO and uphold the view that this is a valid comparable. 6) M/s.Zylog Systems Limited Appellant's contention: i. Earns revenue from export of software services, products & solutions. However, segmental information is not available. il. The company specifically owns research, analysis and development wing namely "IDEA". iii. Intangible assets contribute 45.81 % of total fixed assets TPO's contention: i. The company is predominantly into software development. ii. Brand value doesn't have any impact on profitability of the company. Decision: I accept the view of the TPO and uphold the view that this is a valid comparable.

7) M/s.Spry Resources Limited Appellant's contention: i. Company substantially undertakes the central and state government projects ii. The company is mainly into software product development iii. Exceptional year of operations iv. High Working capital loan (percentage of interest to EBITDA47.21 % and percentage of borrowings to fixed assets 105.71 %). TPO's contention: The company is mainly engaged in software development services Decision: I accept the view of the TPO and uphold the view that this is a valid comparable. 8) M/s.Thirdware Solutions Limited Appellant's contention: i. Provides information technology and information technology enabled services ii. Is into multiple verticals iii. Segmental information is not available TPO's contention: i. The company is engaged in software development. In the ROC, both IT & ITeS companies are filed under one code and hence the same cannot be considered as basis for rejection. ii. Sale of license cannot be treated as functionally different.

Decision: I accept the view of the TPO and uphold the view that this is a valid comparable. 7.3 The Appellant contented that, the Following companies were rejected by the TPO, however should have been included as comparable. In the TP Order, the learned TPO rejected some of the comparable companies selected by the Appellant in the TP documentation. They are as follows: A) M/s. Cat Technologies Limited Appellant's contention: i. The company is suggested as additional comparable, as it satisfies all the filters applied by the TPO ii. The company has earned revenue of 92.61% from software development services TPO's contention: i. The company is not a comparable to the business of the assessee. This company is engaged in the medical transcription, trading software development and consulting services. ii. There is no segmentation information for software development segment is available. Decision: I accept the view of the TPO and uphold the view that this is an invalid comparable. B) M/s. Maverick Systems Limited Appellant's contention: i. The company is suggested as additional comparable in show cause notice as it satisfies all the filters except forex earnings filter applied by the TPO. il. The detailed contentions regarding forex earnings filter can be referred above. TPO's contention: The company does not satisfy forex filter, the same cannot be accepted as comparable. Decision: I accept the view of the TPO and uphold the view that this is an invalid comparable. C) M/s. Thinksoft Technologies Limited Appellant's contention: i. The company satisfies all the filters applied by the TPO and is functionally comparable. ii. The company is engaged in software testing, which is part of software development life cycle and therefore, the company is in business of software development. TPO's contention: i. The company provides both onsite and offsite services. ii. Also, the company is only into software testing and validation work only. Decision: I accept the view of the TPO and uphold the view that this is an invalid comparable. D) M/s. CG-Vak Software & Exports limited Appellant's contention: i. Majorly engaged in software development activities ii. TPO has incorrectly not considered, as its persistent loss making, however the company has made profit for FY 2010-11

TPO's contention: The company is incurring loss in software segment based on annual report of the company. Decision: I accept the view of the TPO and uphold the view that this is an invalid comparable. E) M/s. R Systems International Limited Appellant's contention: i. The company is engaged in software development activity ii. The quarterly results of the company is available in website TPO's contention: i. The company's yearend is 31st March as that of the company is 31st Dec. ii. The TPO has power to reject such comparable, which falls yearend filter. Decision: I accept the view of the TPO and uphold the view that this is an invalid comparable. F) M/s. Bluestar Infotech Limited Appellant's contention: i. The company satisfies all the filters adopted by the TPO ii. The reason for rejection by TPO is export earnings filter, which is 62.88% of sales. TPO's contention: i. The company forex earnings are 62.88%. The forex earnings adopted by the TPO for SDS transactions is forex earnings greater than 75% of the sales, but not 25%. ii. This company fails forex filter is correct. Decision: I accept the view of the TPO and uphold the view that this is an invalid comparable. G) M/s. Cigniti Technologies Limited Appellant's contention: i. The company satisfies all the filters adopted by the TPO ii. The reason for rejection by TPO is export earnings filter, which is 62.528% of sales. TPO's contention: i. The company forex earnings are 62.52%. The forex earnings adopted by the TPO for SDS transactions is forex earnings greater than 75% of the sales, but not 25%. ii. This company fails forex filter is correct. Decision: I accept the view of the TPO and uphold the view that this is an invalid comparable. 7.4 The reasoning given by the TPO is appropriate and factual, hence the objections raised by the appellant are not tenable. Thus, the Assessing Officer has taken stand correctly. Hence, I upheld the com parables selected to make Arms length calculations, under transfer pricing.”

5.1. The Ld. AR also submitted that it can be perused from the aforesaid grounds that the assessee had raised many issues i.e. selection of comparables ( ground no. 7 to 9), erroneous computation of income of margins of comparable companies ( ground no. 10), computation of TP adjustments (ground no. 11 & 12), corporate guarantee ( ground no. 13), use of single year data ( ground no. 14) and benefits of +/- 5 percent( ground no. 15) before the Ld. CIT(A) through the aforesaid ground no. 7 to 15 . However the Ld. CIT(A) without appreciating the facts properly adjudicated the ground no.7 to 15 on the basis of only single issue i.e. “whether the comparables are valid or not” and dismiss the grounds on all the different issues with considering the merits. Thus, the Ld. AR argued that the Ld. CIT(A) did not consider the grounds raised by the assessee properly, before passing the order. Hence, Ld. AR requested the Bench to set aside the impugned order and restore the issue to the file of Ld.CIT(A) for fresh consideration of the matter.

Revenue’s cross appeal for the A.Y.2012-13:

10. It was the submission of the Ld. DR before the Bench that before invoking the provisions u/s 14A r.w. rule 8D of the Act, Ld.CIT(A) ought to have considered that any investment which is yielding or likely to yield exempt income falls within the ambit of section 14A of the Act and expenditure in relation to such investment has to be computed as per the formula in Rule 8D and there is no exemption in case where no exempt income is earned or not. It was further contended by the ld. DR that while taking such a view, Ld.CIT(A) failed to consider Circular No. 5/2014, dt. 11/02/2024 issued by the CBDT wherein it is clarified that Rule 8D r.w.s. 14A of the Act, provides for disallowance of the expenditure even where taxpayer in a particular year has not earned any exempt income. It was also contended that the Ld. CIT(A) has given the relief contending under para no. 8.4 of his order that “the dividend received by the assessee is from the foreign companies and is taxable as per Section 115BBD. Therefore, the question of non-taxability of income does not arise. The Assessing Officer has wrongly applied Section 14A disallowance to an income which is taxable.”. The Ld. DR also submitted that the Ld. CIT(A) did not appreciate that the said Section 115BBD of the Act prohibit the allowance on any expenditure against the said foreign dividend income. Finally, learned DR prayed to delete the allowance made by the Ld.CIT(A).

Assessee’s appeal for the A.Y.2013-14:

17. The Ld.AR also submitted that as far as the ground No.8 and ground No.9 related to “disallowance u/s 14A” and “disallowance u/s 14A for the purpose of MAT" is concerned the order of the Ld.CIT(A) is very cryptic and did not deal with the submission made by the assessee. Hence, he requested the Bench to set aside the impugned order and restore the issue to the file of Ld.CIT(A) for fresh consideration of the matter.

Order pronounced in the open court on 20th day of June, 2024.