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Income Tax Appellate Tribunal, “K” BENCH, MUMBAI
Before: S/SHRI SAKTIJIT DEY & , N.K.BILLAIYA
आयकर अपील सं/ (�नधा�रण वष� / Assessment Year: 2010-11) M/s. RGA Services India Pvt. Deputy Commissioner of बनाम/ Ltd. Income Tax Range 8(3) Vs. 302, Akruti Centre Point, MIDC Room No. 204,Aayakar Central Road, Next to MIDC Bhavan, M.K.Road, Telephone Exchange, Mumbai 400020 Andheri (East),Mumbai-400093 �थायी लेखा सं/.जीआइआर सं/.PAN/GIR No. : AADCR0348A .. (अपीलाथ� /Appellant) (��यथ� / Respondent) Department by: Shri Narendra Kumar Chand (CIT-DR) : Assessee by Shri Nishant Thakkar सुनवाई क� तार�ख / Date of Hearing: 10.11.2015 घोषणा क� तार�ख /Date of Pronouncement: 20.11.2015 आदेश / O R D E R
ITA 22&244/M/15 A.Y.2010-11 PER SAKTIJIT DEY, JM:
These cross appeals filed by the department and the assessee are against the final assessment order passed u/s. 143(3) r.w.s 144C of the Act in pursuance to the directions of Dispute Resolution Panel (DRP), Mumbai. At first, we will deal with the departments appeal in ITA 22/M/15. Only substantive ground raised by the department is as under:- 1. "Whether on the facts and in the circumstances of the case and in law, the Hon'ble Dispute Resolution Panel erred in rejecting the comparable viz. Asian Business Exhibition and Conferences Limited which was adopted by the TPO for computation of Arms Length Pricing when the comparable's functioning was very much similar to activities undertaken by the assessee company".
2. As could be seen from the ground raised, the only issue raised by the department is in relation to exclusion of Asian Business Exhibition and Conferences Limited as a comparable by the DRP.
Briefly, the facts are, the assessee an Indian company is engaged in the business of providing marketing support and business support services and software development services in relation to re-insurance, underwriting and actuarial activities to its associated enterprises overseas. The assessee is a wholly owned subsidiary of Reinsurance group of America. During the relevant previous year, assessee had entered into international transactions with its Associated Enterprises (A.E.) on account of provision of software development and I.T. Services and provision of business and market support services. The details of international transactions with the A.E.’s are as under:-
Sr.No. Nature of Transaction Amount Rs. Method 1. Provision of software development Rs.67,36,584 TNMM and IT services 2. Provision of business and Rs.16,17,50,508 TNMM marketing support services 3. Reimbursement of salary cost Rs.87,02,696 At cost 4. Recovery of bank charges Rs.106 At cost Total Rs.17,71,89,894/-
ITA 22&244/M/15 A.Y.2010-11 4. In course of the proceedings before the TPO, on examining the transfer pricing study report submitted by the assessee, it was noticed that assessee has bench marked the Arm’s Length Price(ALP) of the software development and I.T. support services to its A.E. by selecting Transaction Net Margin Method (TNMM) as most appropriate method with operating profit to operating cost as Profit Level Indicator (PLI). Considering itself as the tested party, assessee has conducted search in the data bases for selecting comparables and had short listed twenty one companies as comparables with arithmetic mean margin of 11.26%. As operating margin of the assessee was shown at 12%, the transactions with the A.E.’s were considered to be at arm’s length. As far as business and marketing support services is concerned, it was considered as a separate segment in the TP study and ALP was benchmarked by adopting TNMM as most appropriate method with operating profit to operating cost as PLI. Fourteen companies with average arithmetic mean of 10.32% were selected as comparables. As assessee’s margin was shown at 12%, the price charged to AE was found to be within arm’s length.
TPO after analyzing the T.P. report of the assessee, however, was not satisfied with the same for the reason that the assessee had selected comparable companies by taking multiple year data and segmental accounts provided were not audited. He also observed, software development and I.T. support services segment is only 4% of the total turnover of the assessee. He, therefore, called upon the assessee to explain as to why it should not be considered as predominantly marketing and business support services company. Though, the assessee submitted its explanation objecting to the inferences drawn by the TPO, but, TPO did not accept the explanation of the assessee citing the following reasons:
a) The assessee has not provided audited segmental results for the two activities namely software development services and business support services. b) The assessee has earned revenue from Providing Business Support Services to AEs to the tune of Rs.16,17,50,508/- whereas the revenue earned form the activity of Software Development and IT support services is to the tune of Rs.67,36,584/-. Thus the predominant revenue is from providing Business Support Services to AEs being 96% of the revenue.
ITA 22&244/M/15 A.Y.2010-11 6. Thus, on the aforesaid basis TPO aggregated both the segments i.e. business support services and software development services by treating it as single segment and proceeded to benchmark the ALP of the international transaction independently. Though, the TPO agreed with the assessee that TNMM is the most appropriate method with operating profit to operating cost as the PLI, however, he did not agree on the overall TP study report prepared by the assessee. He observed, that the assessee has selected 14 comparables as far as business support services segment is concerned with arithmetic mean margin is 10.32% to its own operating margin of 12% and has treated the transactions to be an arm’s length. He observed, while doing so assessee considered multiple year data instead of current year’s data. Out of 14 comparable selected, relevant data for A.Y.2009-10 in respect of 3 comparables are not available. Further, two comparables are persistently loss making. He, therefore, rejecting the T.P. study report of the assessee undertook a search himself to find comparables and short listed 7 companies. One amongst them being Asian Business Exhibition and Conference Limited. The average arithmetic mean of the comparables selected by the TPO was 19.73% as against the assessee’s operating margin of 10.21%. On the basis of the average arithmetic mean of the comparables ALP of the export/sale with the A.E was determined at Rs.183041099.04/- resulting in upward adjustment to the ALP by Rs.14554007.04/-.
On the basis of the determination of APL by the TPO, the assessing officer passed a draft assessment order. The assessee objected to the draft assessment order before the DRP. In the grounds raised before DRP, amongst other issues, assessee objected to selection of certain comparables including Asian Business Exhibition and Conferences Limited. As far as assessee’s objection with regard to selection of comparable companies is concerned, the DRP while considering the comparability of Asian Business Exhibition and Conferences Limited found it to be functionally different from the assessee as it is primarily engaged in event management, relating to exhibition and events, sponsorship, delegates attending conference etc. It was found by the DRP that it earns income from the sale of stall space in exhibition and events. Further it also earned income from sponsorship, delegates attending conferences, events and entry fees charged from visitors for visiting exhibition. The DRP also observed, the company has earned super-normal profit during the year which cannot be ignored. The DRP further observed segmental reporting of the company is not available. The DRP observed merely because the company was considered in the T.P. Study, it has to be included as a comparable. Accordingly, 4
ITA 22&244/M/15 A.Y.2010-11 DRP directed the assessing officer to remove Asian Business Exhibition and Conferences Limited from the list of comparables. Since, DRP found that after removal of Asian Business Exhibition and Conferences Limited assessee’s margin comes within +/- 5% of other comparables it did not decide assessee’s objections in respect of other comparables. Further, the DRP also directed the assessing officer to retain the two segments reported by the assessee and work out the adjustment after removal of Asian Business Exhibition and Conferences Limited. Being aggrieved, the department is before us.
The learned departmental representative submitted before us, assessee in its TP study considered this company as a comparable, hence, it cannot again take the plea of excluding the same from being treated as a comparable. Referring to the observations made by the TPO while selecting this company as a comparable, learned departmental representative, though, agreed that the company is an event management company but at the same time it is submitted, the other comparable companies which were selected and not objected by the assessee are also functionally different. Therefore, when the assessee has no objection with regard to those companies it cannot object to selection of Asian Business Exhibition and Conferences Limited. He submitted, the basis on which the DRP excluded Asian Business Exhibition and Conferences Limited as comparable also apply to the other comparables.
The learned counsel for the assessee strongly contesting the contentions of the learned departmental representative submitted, the TPO himself has admitted that Asian Business Exhibition and Conferences Limited is an event management company. In this context, he referred to the observation by the TPO at page 12 of his order. He submitted, the only reason for which the TPO has select the company is because it was considered in the T.P. Study of assessee.
The learned counsel referring to the annual report of Asian Business Exhibition and Conferences Limited submitted, the directors report of the company make it clear that it is engaged in organizing exhibitions and conferences. Further, referring to schedule 12 of the profit and loss account of the company learned counsel submitted the income earned is from exhibition and events, sponsorship, delegates attending conference/events and entry fees charged from visitors for visiting exhibition. Whereas, assessee is providing support service to its A.Es. in re-insurance and actuarial activities. Therefore, under no circumstances this company can be considered to be a comparable to assessee. As far as objection of the department with regard to 5
ITA 22&244/M/15 A.Y.2010-11 other comparables selected, the learned counsel submitted, all other comparables are providing support services, though, may not be similar to the assessee. He submitted, only because initially assessee had selected it as a comparable, that cannot be the only reason to reject assessee’s objection with regard to selection of the company as a comparable. In this context he relied upon the following decisions:
M/s. Stream International Services Pvt. Ltd. V/s. ADIT (IT) 7(2) in dated 11.01.2013.
M/s. Shell India Markets Pvt. Ltd. V/s. The ACIT in ITA 193/M/13 dated 10.12.2014.
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.
Thus, on overall analysis of facts and materials placed on record it is very much clear that the business model of the assessee and Asian Business Exhibition and Conferences Limited are totally different. While assessee undoubtedly is providing support services to its overseas AE’s, Asian Business Exhibition and Conferences Limited is primarily and fundamentally engaged in event management. Thus, under no circumstances it can be considered as a comparable to the assessee. Therefore, for the aforestated reasons the DRP, in our view, was justified in excluding this company as a comparable. As far as the contention of learned DR that reasons on which this company was excluded equally applies to other comparables retained by the DRP, we may observe, such argument of learned DR is not at all relevant as the the issue raised by the department in the present appeal is confined to exclusion of Asian Business Exhibition and Conferences Limited as a comparable. As far as objection of learned departmental representative that assessee itself has selected this company as a comparable, we may observe, that cannot be the sole criteria to reject assessee’s objection with regard to selection of a comparable. At the 6
ITA 22&244/M/15 A.Y.2010-11 time of preparing T.P. Study report assessee had selected some comparables by considering multiple year data and information available at the relevant time. However, if subsequently on the basis of information available in public domain it is found on the basis of 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 DCIT V/s. Quark Systems (P) Ltd. (2010)132TTJ(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.
In the result department’s appeal is dismissed.
13 As seen from the order of the DRP, as well as, it is stated by learned counsels for both the parties before us, after exclusion of Asian Business Exhibition and Conferences Limited margin shown by the assessee comes within +/- 5% of the margin of the other comparable companies. That being the case, there is no need to adjudicate the grounds raised by the assessee in its appeal as they are of mere academic interest. Thus appeal filed by the assessee having become infructuous is dismissed.
In the result, the appeals filed by the department as well as assessee are hereby dismissed.