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Income Tax Appellate Tribunal, “C” BENCH, PUNE
Before: SHRI R.S.SYAL, VP & SHRI PARTHA SARATHI CHAUDHURY, JM
आदेश / ORDER PER PARTHA SARATHI CHAUDHURY, JM:
This appeal preferred by the assessee emanates from the directions of the Ld. Dispute Resolution Panel (DRP)-3, Mumbai dated 26.08.2019 passed u/s.144C(5) of the Income Tax Act, 1961 for the assessment year 2015-16 as per the following grounds of appeal:
“1. Based on the facts and circumstances of the case and in law, the learned Assessing Officer („Ld. AO‟) and Hon‟ble Dispute Resolution Panel ( „Hon‟ble DRP) erred in making/upholding the transfer pricing adjustment of INR 2,08,94,594/- to the taxable income of the appellant.
2. Rejection of transfer pricing documentation (“TP study”) maintained by the appellant and conducting fresh search on incorrect basis Based on the facts and circumstances of the case and in law, the Hon‟ble DRP and Ld. Transfer Pricing Officer (Ld. TPO) erred in rejecting the transfer pricing documentation maintained by the Appellant in accordance with the provisions of the Act read with the Income Tax Rules, 1962 (“Rules”) Consequently, the Hon‟ble DRP and the Ld. TPO also erred in conducting fresh search for identification of comparable companies. In connection with rejection of TP study of Appellant the Hon‟ble DRP/Ld. TPO erred in Rejecting the search conducted ( for comparable companies) by appellant without giving any cogent reasons; Rejecting the TP study prepared by the Appellant merely on the basis of difference in opinion with respect to certain filters applied by the Appellant. In this regard, - The Ld. TPO considered certain quantitative filters i.e. i. Net Fixed Asset (NFA) more than 200% of sales and ii. R & D cost of 3% of sales as inappropriate filters without providing cogent reasons - The Ld. TPO assumed that quantitative filter of ITes service income> 75% can be applied and incorrectly stated that Appellant‟s quantitative filter of service income> 75% is incorrect. Moreover, even after rejecting the Appellant‟s TP study, the Ld. TPO himself applied the same filter of service income> 75% while conducting fresh search.
3. Inappropriate fresh search conducted by the Ld. TPO for identification of comparable companies ( without prejudice to Ground No.2) Based on the facts and circumstances of the case and in law, the Hon‟ble DRP erred in upholding the incorrect and inappropriate process followed by the Ld. TPO for conducting fresh search for identification of comparable companies considered in the final TP order. In doing so, the Hon‟ble DRP/Ld. TPO erred in Not making available to the Appellant the relevant information (including but not limited to the relevant details claimed to be collected by the Ld. TPO from the companies under section 133(6) for conducting comparability analysis) pertaining to such fresh search conducted by the Ld. TPO, so as to enable the Appellant to peruse such relevant information and have a realistic opportunity of being heard.
Application of certain quantitative filters in the fresh search without providing cogent rationale for the same.
Rejecting Informed Technologies India Ltd. on the basis of it failing the quantitative filter of service income> 75% of total income, wherein the service income of Informed Technologies India Ltd. is more than 75%. Rejecting Datamatics Global Services Ltd. and Cosmic Global Ltd. on the basis of it is failing export filter whereas these companies have exports more than 75%. Rejecting Allsec Technologies Ltd. on the basis of it being persistent loss making company even though it is not persistent loss making company. Rejecting Microland Limited (Seg.) on the basis of insufficient ITes segment even though adequate ITes segment data is available from Annual Report. Rejecting R Systems Intl Ltd. merely on the basis of company having different financial year despite this company being functionally comparable. Selection of functionally dissimilar companies as comparable viz. Infosys BPO Ltd., Tech Mahindra BSPL, AGS Health Private Limited and E-Care India Pvt. Ltd. without conducting proper quantitative analysis and without rebutting the Appellant‟s submission explaining functional dissimilarity of these companies. Considering Cross Domain Solutions Pvt. Ltd., Excel Infoways Limited ( Segment), SPI Technologies India Pvt. Ltd. and ICRA Techno Analytics Ltd. in final set of comparable companies in the TP order even though these companies are not appearing in the search (population) undertaken by the Ld. TPO for fresh search of comparables. Thus, the Hon‟ble DRP/Ld. TPO erred by adopting cherry picking approach to consider these high profit making companies as comparable companies. Not selecting Digicall Global Pvt. Ltd. and Sutherland Global Services Pvt. Ltd. as comparable companies despite the Appellant providing detailed submissions explaining functional similarity of these companies with some of the other companies selected by the Ld. TPO as comparable during the fresh search.
4. Risk Adjustment not granted The Hon‟ble DRP erred and the Ld. TPO erred in not granting any risk adjustments for differences in risk borne by the comparable companies vis-à-vis the Appellant.
5. Working capital adjustment not granted The Hon‟ble DRP erred and the Ld. TPO erred in not granting working capital adjustment to the Appellant which could have nullified the impact of different level of working capital ( deployed by the Appellant and comparable companies) on the benchmarking analysis and in disregarding the fact that working capital adjustment takes into account the difference between credit period of the Appellant and the comparable companies.
6. Notional Interest imputed incorrectly The Hon‟ble DRP erred in upholding action of the Ld. TPO of imputing notional interest by: Disregarding the fact that working capital adjustment (as requested by the Appellant) takes into account the differences if any, between credit period of the Appellant and independent comparable companies. Re-characterizing outstanding receivables as an unsecured loan advanced by the Appellant to its AE. Without prejudice basis the Appellant prays that the Hon‟ble DRP and Ld. TPO erred in computing notional interest for the full period of delay and not restricting it to the period of excess of reasonable credit period/average credit period of comparables.”
Referring to grounds of appeal, the Ld. Counsel for the assessee submitted that the dispute in this case is with regard to comparables only. In this regard, at the very outset, he submitted that the assessee is not pressing Ground No.6. After recording the submissions of the Ld. Counsel, Ground No.6 is dismissed as not pressed.
Thereafter, the Ld. Counsel for the assessee brought to our notice the final list of comparable companies selected by the Transfer Pricing Officer (TPO) at Page 33 of his order. The TPO has considered 11 companies in the final list of comparables in the ITes segment in respect of the assessee. That out of these 11 companies, the assessee is disputing four companies as comparables which are (A) SPI Technologies India Pvt. Ltd., (B) AGS Health Pvt. Ltd., (C) Infosys BPO Ltd. and (D) Tech Mahindra BSPL
Giving a brief background to the case, the Ld. Counsel for the assessee submitted that the assessee is doing business of ITes segment wherein major work is of analytical support and functions with software services as only incidental to and not independent of such analytical functions. It was also clarified by the Ld. Counsel that Master Technical Service Agreement dated 8th December, 2004 between ECMi LLC and ECMi Software Private Limited provides for software services, that however, from 2013 onwards, there has been a drastic amendment as to the Master Services Agreement and for the year under consideration i.e. financial year 2014-15 relevant to assessment year 2015-16, the services of the assessee are to provide after-market analytical services and only related software support. Meaning thereby, what the assessee was doing in 2004, was essentially providing software services which got amended from April, 2013 for the financial year 2014-15 and after that the assessee is providing analytical services and only related software and technical support services. These agreements are annexed at Pages 1500 and 1520 in the paper book filed before us.
4.1 The Ld. Counsel also brought to our notice the functional analysis of the assessee company which is annexed in the paper book at Pages 29 onwards wherein at Para 7.2, it is specifically mentioned that Entercoms Group focuses exclusively on aftermarket/post-sales service chain operations. There is detailed discussion of the functions performed by Entercoms US and Entercoms India. That taking us through these detailed functional analysis, the Ld. Counsel demonstrated what essentially Entercoms India does is to provide aftermarket analytical services through its COPS teams. The analytical services are performed using software developed and owned by Entercoms US. This discussion finds place from Para‟s 7.14 onwards in the functional analysis statement. Thereafter, the Ld. Counsel for the assessee submitted that inclusion of following comparables companies are disputed in the ITes segment of the assessee:
(A) SPI Technologies India Pvt. Ltd.:-
SPI Technologies India Pvt. Ltd. offers a range of voice and non-voice business process outsourcing solutions; and content editorial and production service that consist of content transformation services such as content enrichment, content conversion, content structuring and content delivery across various data and delivery formats. The assessee objected that this company is not comparable to the assessee on account of being functionally dissimilar. The TPO, however held that SPI Technologies India Pvt. Ltd. clearly falls under the definition of ITes and hence, comparable to that of the assessee company.
The Ld. DRP has given their directions on this issue vide Para 7.2 onwards. Thereafter, at Para 7.2.1, the Ld. DRP had upheld the observation of the TPO and held that all the objections of the assessee were dealt with and discussed and the findings of the TPO was upheld.
The Ld. Counsel for the assessee at the time of hearing submitted that the main reason for objecting to the comparable was not because they are doing software services but for essential other factors which ultimately makes this selected company as non-comparable with that the assessee. That SPI Technologies India Pvt. Ltd. in the relevant assessment year, there has been an amalgamation of this company and due to the extraordinary events this company is to be rejected. Demonstrating these facts, the Ld. Counsel for the assessee took us through the Annual Report of SPI Technologies India Pvt. Ltd. at Page 1331 wherein, there is a disclosure by the Board of Directors that amalgamation has taken place between Laserwords Private Limited, a wholly owned subsidiary of SPi Technologies India Private Limited (the Amalgamating Company) with SPI Technologies India Private Limited ( the Amalgamated Company) pursuant to Section 391 to 394 of the Companies Act, 1956 with appointed date as April 1, 2014 i.e. financial year 2014-15 relevant to assessment year 2015-16. This scheme was sanctioned by the Hon‟ble High Court of Judicature at Madras vide order dated 22.08.2014 which was filed with the Registrar of Companies, Chennai on 4th October, 2014 being the effective date. This fact of amalgamation taking place in respect of SPI Technologies India Pvt. Ltd. during relevant assessment year was also brought to the notice of the Ld. DRP at the time of objections raised before it by the assessee and the relevant submissions before the Ld. DRP have been annexed before us in the paper book 1 page 516 onwards. However, the Ld. DRP has not given any findings on this aspect.
We find the Hon‟ble Jurisdictional High Court in the case of Pr. Commissioner of Income Tax Vs. PTC Software (I) (P) Ltd. (2019) 101 taxmann.com 117 ( Bombay) has held that in case the assessee rendering ITES services to AE, a company in whose case extraordinary event of amalgamation took place during relevant year, could not be accepted as comparable and was decided in favour of the assessee. Similarly in the case of Pr. Commissioner of Income Tax Vs. J.P Morgan India (P) Ltd. (2019) 102 taxmann.com 335 (Bombay) , the Hon‟ble Jurisdictional High Court on the same issue has held as follows:
“(iv) Mr. Percy Pardiwalla, learned senior counsel appearing on behalf of the respondent invited our attention to the final decision of this Court in Pr. CIT v. Aptara Technology (P.) Ltd. [2018] 92 taxmann.com 240 and Pr. CIT v. PTC Software (I) (P.) Ltd. [2019] 101 taxmann.com 117 (Bom.). In both the above decisions this Court has taken a view that merger/amalgamation is an extra ordinary event and would have an impact /effect on the financial results of the company. Thus, in both the aforesaid decisions, this Court upheld the view of the Tribunal that where merger/amalgamation have taken place and it is not a normal event then such a company would cease to be comparable. This of course is subject to the Revenue being able to show that amalgamation/merger did not have any effect of the profitability of the company. This has not been shown by the Revenue either to the Tribunal or before us. Therefore, this issue stands covered by the decision of this Court in Aptara Technology (P.) Ltd.'s case (supra) and PTC Software (I) (P.) Ltd.'s case (supra) in favour of the respondent. This more particularly in view of the absence of the Revenue even attempting to show that the merger and amalgamation that took place in the case of comparable M/s. Keynote Corporate Securities Limited was such that it would not have any impact on its profitability. It is true that in case of PTC Software (I) (P.) Ltd. case (supra) this question has been admitted, however, the admission was on the facts and circumstances of that case. In any case the issue now stands concluded by final orders of this Court in case of Aptara Technology (P.) Ltd. (supra) and PTC Software (I) (P.) Ltd.'s case (supra) and it is being followed. (V) In view of the above, as the proposed question is covered by the decision of this Court, no substantial question of law arises. Thus, not entertained.”
That even the Pune Bench of the Tribunal in the case of Brintons Carpets Asia (P) Ltd. Vs. Deputy Commissioner of Income Tax, & 1349/PN/2015 dated 29th March, 2019 observed that the assessee before the Tribunal had first claimed that Accentia Technologies Ltd. cannot be selected in the final list of comparables as during the year under consideration, there was an extraordinary event of amalgamation. Thereafter, the Tribunal has analyzed how and what extraordinary event took place in that case and in such scenario, the company cannot be considered as comparable one and the relevant extracts in this regard are as follows:
“13. ………………….The learned Authorized Representative for the assessee has pointed out that though the CIT (A) says that there is no such amalgamation but his finding is totally incorrect. In this regard, reliance was placed on the ratio laid down by Pune Bench of Tribunal in Dover India (P.) Ltd. v. Dy. CIT [2017] 88 taxmann.com 115 (Pune - Trib.), wherein for assessment year 2010-11 itself, the said concern Accentia Technologies Ltd. was excluded being high end KPO service provider. Further, the Tribunal in BNY Mellon International Operations (India) (P.) Ltd. (supra) have noted the extraordinary event of acquisition and also amalgamation of another concern and held that the said concern could not be selected as comparable. The relevant findings of Tribunal are in paras 12 and 13, which read as under:— '12. The next concern against which the assessee has raised objections is Accentia Technologies Ltd. on the ground of extraordinary events during the year under consideration. The said concern had acquired IQ group of companies in the United Kingdom and there was amalgamation of Asscent Infoserve Pvt. Ltd. with the said concern and because of these extraordinary events, the margins of said companies should not be included in the final set of comparables. The Pune Bench of Tribunal in Aptara Technologies Pvt. Ltd. v. ACIT (2016) 72 taxmann.com 352 (Pune - Trib) and Cummins Turbo Technologies Ltd. v. DCIT (2017) 79 taxmann.com 260 (Pune - Trib) has held that the said concern cannot be accepted as comparable. The Tribunal in Aptara Technologies Pvt. Ltd. v. ACIT (supra) held as under:— "14. We find that the Tribunal in assessee's own case in assessment year 2008-09 in order dated 02.02.2015 had held that the said concern could not be considered as comparable because of certain extraordinary events. The said ratio was also applied in assessee's own case while benchmarking the international transaction of assessee with its associate enterprises in assessment year 2009-10 in ITA No.267/PN/2014, order dated 29.04.2015. The Tribunal vide order dated 02.02.2015 had held that the concern Accentia Technologies Ltd. could not be included in the final set of comparables holding as under:— "13. Next, assessee had contended that Accentia Technologies Ltd. has been wrongly included by the TPO as a comparable concern. As per the assessee, the said concern was engaged in functionally different activities. It was pointed out that the said concern is engaged in providing medical transaction, billing and coding services, application development & customization (segmental data not available). Moreover, it was contended that the sales/turnover of the said concern was more than Rs. 50 crores for the year under consideration which did not meet with turnover filter applied by the assessee. On this point, it was pointed out that the assessee had selected sales/turnover filter of 1-50 crores i.e. any concerns having a turnover exceeding Rs. 50 crores were excluded. Thirdly, it was pointed out that the activities of the said concern were not comparable to the activities of the assessee.
14. The TPO has noted the aforesaid objections of the assessee in para 18.1 of his order and has rejected the same by merely noticing that 75% of the revenue/income of the said concern is from ITES and therefore it is to be considered as a comparable. Before us, the Ld. Representative for the assessee has reiterated the submissions put-forth before the TPO in order to justify exclusion of the said concern from the list of comparables. In particularly, it has been pointed out that for the very same assessment year, the Bangalore Bench of the Tribunal in the case of Symphony Marketing Solutions India Pvt. Ltd. v. ITO, (2013) 38 taxmann.com 55 (Bang.) has excluded the said concern from the list of comparables in a similar situation following the decision of the Hyderabad Bench of the Tribunal in the case of Capital IQ Information Systems (India) Private Limited v. DCIT, (2013) 32 taxmann.com 21 (Hyd.).
We have considered the submissions of the Ld. Representative for the assessee and also the stand of the Revenue as emerging from the order of the TPO. In our view, the ratio laid down by the Hyderabad Bench of the Tribunal in the case of Capital IQ Information Systems (India) Private Limited (supra) and by the Bangalore Bench of the Tribunal in the case of Symphony Marketing Solutions India Pvt. Ltd. (supra) is squarely applicable to the present case also. The aforesaid Benches of the Tribunal found that during the year under consideration there were extraordinary events that took place in the said concern which warranted exclusion of this company as a comparable. We therefore hold that the said concern cannot be considered as a comparable."
15. Further, similar proposition has been laid down by different Benches of Tribunal while deciding the appeals relating to assessment year 2010-11 and it has been held that because of extraordinary events during the year, the concern Accentia Technologies Ltd. was not comparable to the entities engaged in ITES. Following the same parity of reasoning, we hold that Accentia Technologies Ltd. is to be excluded from the final set of comparables."
Following the same parity of reasoning as in Aptara Technologies Pvt. Ltd. v. ACIT (supra) and Cummins Turbo Technologies Ltd. v. DCIT (supra), we hold that Accentia Technologies Ltd. cannot be compared as comparable because of extraordinary events of acquisition and amalgamation during the year. Accordingly, we direct the Assessing Officer/TPO to exclude Accential Technologies Ltd. from final list of comparables.”
We, place reliance on the afore-stated judicial precedents where there is an emerging consistent view in this regard that if an extraordinary event has taken place by way of amalgamation that company cannot be considered as a comparable one and following the same parity of reasoning, we direct the Assessing Officer/TPO to exclude SPI Technologies India Pvt. Ltd. from the final set of comparables while computing international transactions in respect of the assesse in ITes segment.
(B) AGS Health Pvt. Ltd.:-
AGS Health Pvt. Ltd. is a revenue cycle management company which provides medical billing and medical transcription services to its customers.
The assessee contended that this company is not comparable for two reasons viz. (i) functional comparability and (ii) insufficient information in public.
The Ld. Counsel for the assessee on this issue brought to our notice at Page 6 of the TPO‟s order wherein the TPO himself acknowledged that the companies which have transactions with related parties are greater than 25% are eliminated and it is an appropriate filter. Thereafter, the Ld. Counsel for the assessee took us through the notes on related party explanatory and therein in the Column „transaction with related parties‟ in respect of AGH Health Pvt. Ltd., sale of service as on 31.03.2015 for the assessment year 2015-16, it was at Rs.133,26,47,750/-.
13. That it was also submitted before the Ld. DRP vide submissions dated 25th February, 2019 by the assessee that as per Annual Report of AGS Health Pvt. Ltd., it had earned 100% of its revenue from related party during financial year 2014-15. That it is very clear thus, AGS Health Private Limited is not clearing the filter of „companies that have transactions with related parties are greater than 25% are eliminated‟ which was applied by the assessee and upheld by the Ld. TPO. In view of this, assessee prayed that AGS Health Private Limited should be rejected as comparable company as the same is not clearing the RPT filter.
The Ld. DR conceded to the fact of TPO‟s observation at para 7.2 of his order wherein the TPO has accepted assessee‟s contention that companies which have transactions with related parties are greater than 25%, they are eliminated and it has been held by the TPO as an appropriate filter. That on further examination of the Annual Report of AGH Health Private Limited, we find that it is far beyond 25% that AGS Health Private Limited has earned its revenue from related parties transactions and when the assessee in its TP study report has eliminated this company and it has been held as an appropriate filter by the TPO then there remains no basis for revenue again to include this company in the final set of comparables with that of the assessee. Accordingly, we direct the Assessing Officer/TPO to exclude AGS Health private Limited from the final set of comparables while computing international transactions in respect of the assesse in ITes segment.
(C) Infosys BPO Ltd.:-
15. Infosys BPO Ltd. offers business process outsourcing solutions to several clients and its service offerings span across multiple industry segments. The assessee submitted that this company is not comparable on account of two reasons viz. (i) functionally different and (ii) High turnover. The TPO was of the view that this company though engaged in different verticals across the industry does not change the nature of functions carried out. The functions are basically in the nature of business process out sourcing which can be classified as ITes, thus, held to be functionally comparable with that of the assessee company.
The Ld. DRP vide common order had upheld the findings of the TPO without any discussion as regards the objections raised by the assessee before it. The Ld. DRP had summarily disposed of the objections of the assessee upholding the findings of the TPO.
In this regard, the Ld. Counsel for the assessee placed strong reliance on the decision of the Hon‟ble Bombay High Court in the case of CIT Vs. Pentair Water India Pvt. Ltd., 381 ITR 216 wherein the Hon‟ble High Court observed that the findings of the Tribunal given in respect of HCL Comnet Systems and Services Ltd. as follows:
“We find force in the submission of the ld. AR that this company cannot be a comparable as the turnover of this company is 260.18 crores while in the case of the Assessee, the turnover is around Rs.11 crores only. While making the selection of comparables, the turnover filter, in our opinion, has to be the basis for selection. A company having turnover of Rs.11 crores cannot be compared with a company which is having turnover of Rs.260 crores which is more than 23 times the turnover of the Assessee. This company cannot be regarded to be in equal size to the Asseessee. We, accordingly, direct the AO to exclude this company out of the comparables.”
Thereafter, the Hon‟ble High Court held the said findings of the Tribunal are on the basis of appreciation of evidences on record, hence, no infirmity found. In this decision, it was observed by the Hon‟ble Jurisdictional High Court that while making the selection of comparables, the turnover filter, has to be the basis for selection. A company having turnover of Rs.11 crores cannot be compared with a company which is having turnover of Rs.260 crores which is more than 23 times.
Reverting to the facts of the present case, we find that the total turnover of Entercoms Solutions Private Limited is Rs.38.4 Crore as on 31.03.2015 relevant to assessment year 2015-16 whereas the turnover as per profit and loss account of Infosys BPO Ltd. is Rs.2510 Crores which is almost 80 times more than the assessee. Following the decision of the Hon‟ble Jurisdictional High Court (supra.) on the basis of turnover filter, we direct the Assessing Officer/TPO to exclude Infosys BPO Limited from the final set of comparables while computing international transactions in respect of the assesse in ITes segment.
With regard to the comparable Tech Mahindra BSPL, the Ld. Counsel submitted that he is not pressing this part of the ground. After recording the submissions of the Ld. Counsel, this part of the ground is dismissed as not pressed.
In the result, appeal of the assessee is partly allowed. Order pronounced on 25th day of October, 2021.
Sd/- Sd/- R.S.SYAL PARTHA SARATHI CHAUDHURY VICE PRESIDENT JUDICIAL MEMBER पुणे / Pune; ददनांक / Dated : 25th October, 2021. SB आदेश की प्रधतधलधप अग्रेधषत / Copy of the Order forwarded to : अपीलाथी / The Appellant. 1. प्रत्यथी / The Respondent. 2.
3. The CIT(Appeals)-13, Pune.