2020 (9) TMI 286 - AT - Income Tax

TP Adjustment - Comparable selection - HELD THAT - Assessee provides Information Technology enabled Services (in short ITeS ) and is mainly engaged in research support for a broad array of business challenges, including competitive intelligence, customer experience and branding customer analytics, investment and due diligence, market entry and product launch. Exclusion of TCS e-Serve Ltd. from the final list of comparables on the ground of the said concern having both brand value and high turnover - where TCS e-serve Ltd. has high brand value then it cannot be selected as comparable with a concern whose brand value is less. The Ld.DR for the Revenue stressed that the global entity of which the assessee is the subsidiary has high brand value. No merit in the stand of the Revenue in this regard. Even on the second issue of high turnover, the said concern i.e. TCS e-Serve Ltd. cannot be selected as comparable. The total turnover of the assessee during the year is ₹ 30.92 crores. On the other hand, the turnover of the TCS e-Serve Ltd. is ₹ 1578 crores. Accordingly we hold that the TCS e-Serve Ltd. is to be excluded from the final list of comparables. Infosys BPO Ltd. which has both brand value and high turnover of ₹ 1312 crores cannot be selected as a concern comparable to the assessee whose total turnover is only ₹ 31 crores (approx.). Accordingly, we hold so. - Decided in favour of assessee.

Summary

Issues:
Transfer pricing adjustment on provision of back office support services to Associated Enterprises, interest levied under Section 234B and 234C, penalty proceedings under section 271(1)(c) of the Act.

Transfer Pricing Adjustment Issue:
The appeal was against the Adjustments/addition of ?23,600,763 on account of provision of back office support services to Associated Enterprises. The dispute resolution panel and Assessing Officer erred in making an upward adjustment to the total income by holding that the international transaction was not at arm's length. The issue revolved around the comparability analysis of the companies selected by the appellant in the Transfer Pricing Study Report. The TPO proposed an upward adjustment based on the mean margins of selected comparables, which the assessee contested. The exclusion of specific concerns, TCS e-Serve Ltd. and Infosys BPO Ltd., due to high brand value and turnover, was crucial in determining the arm's length price. The Tribunal upheld the exclusion of these concerns, leading to the allowance of the appeal.

Interest and Penalty Issue:
The Assessing Officer's decision to levy interest under Section 234B and 234C, as well as initiate penalty proceedings under section 271(1)(c) of the Act, was challenged. The appellant argued against these actions, stating that the exclusion of specific comparables would bring the margins within an acceptable range. The Tribunal's decision to exclude TCS e-Serve Ltd. and Infosys BPO Ltd. from the final list of comparables played a significant role in the resolution of this issue. As a result, the appeal on interest and penalty proceedings was not addressed separately as the primary focus was on the transfer pricing adjustment issue.

In conclusion, the Tribunal allowed the appeal based on the exclusion of specific concerns from the final list of comparables, thereby bringing the margins within an acceptable range. The decision highlighted the importance of a thorough comparability analysis in transfer pricing assessments and emphasized the impact of brand value and turnover on determining arm's length prices. The judgment showcased the significance of adhering to transfer pricing regulations and ensuring a fair assessment of international transactions to prevent unjustified adjustments.