2016 (9) TMI 1308 - AT - Income Tax

Foreign exchange loss - Held that - DRP in considering foreign exchange loss incurred by the assessee as operative in nature while computing the net margin of the assessee under the TNNM method the learned Counsel for the assessee failrly admitted that this issue is covered against the assessee by the orders of this Tribunal. TPO has clearly stated in the TP order that the foreign exchange loss forms part of the operating margins for the reason that as per the requirements of AS-11 issued by ICAI foreign exchange gain/loss of any nature relating to any item whatsoever is required to be charged off to the P&L a/c. This position has been consistent with the extant practice. Selection of comparables - Held that - Considering ITES activities performed by the assessee companies dissimilar with that of assessee need to be deselcted from final list of comparability. Deduction u/s 10A computation - Held that - Telecommunication charges and other expenditure should be excluded from the export turnover as well as total turnover is concerned we find that the order of the DRP is in accordance with the decision of the Hon ble Karnataka High Court in the case of Tata Elxis 2011 (8) TMI 782 - KARNATAKA HIGH COURT and respectfully following the same we see no reason to interfere with the order of the DRP.

Summary

Issues Involved:
1. Consideration of foreign exchange loss as operative in nature.
2. Computation of operating margin at an overall entity level.
3. Inclusion of specific companies in the final list of comparables.
4. Negative working capital adjustment.
5. Adjustment on account of interest on outstanding receivables.
6. Reworking of profit margin in accordance with the proviso to section 92C.
7. Computation of interest.
8. Exclusion of M/s. E-Clerx Services Ltd from the final list of comparables.
9. Reduction of telecommunication charges and other expenditure from export turnover and total turnover for computation of deduction u/s 10A.

Detailed Analysis:

1. Consideration of Foreign Exchange Loss as Operative in Nature:
The assessee's Ground No.4 contested the inclusion of foreign exchange loss of Rs. 1,12,94,338 in the net margin computation under the TNNM method. The Tribunal upheld the DRP's decision, which followed the precedent that foreign exchange fluctuations are part of the operational income, referencing decisions in Foursoft Ltd and Capital IQ Information Systems Pvt. Ltd.

2. Computation of Operating Margin at an Overall Entity Level:
Ground No.5 challenged the AO/DRP's consideration of the operating margin at an overall entity level rather than segmental results. The Tribunal directed the AO/TPO to consider only the turnover of transactions with AEs for determining the ALP, following the decision in M/s. Astrix Laboratories Ltd vs. ACIT.

3. Inclusion of Specific Companies in the Final List of Comparables:
Ground No.6 and additional grounds 6.1 and 6.2 contested the inclusion of Accentia Technologies Ltd, Cosmic Global Ltd, TCS e-Serve International Ltd, and Crossdomain Solutions Pvt. Ltd. The Tribunal directed the exclusion of Accentia Technologies Ltd and Cosmic Global Ltd based on functional differences and extraordinary events affecting their profits. TCS e-Serve International Ltd was also excluded due to exceptional circumstances and lack of segmental information. However, Crossdomain Solutions Pvt. Ltd was included as the Tribunal upheld its comparability in a previous decision.

4. Negative Working Capital Adjustment:
Ground No.11 addressed the issue of negative working capital adjustment. The Tribunal followed the decision in Adaptec India P Ltd, stating that negative working capital should not be adjusted as the assessee is fully funded by its AE and does not bear any working capital risk.

5. Adjustment on Account of Interest on Outstanding Receivables:
Ground Nos. 14 to 17 contested the adjustment of Rs. 24,54,328 for interest on outstanding receivables. The Tribunal ruled in favor of the assessee, referencing Pegasystems Worldwide India Private Limited, stating that notional interest on outstanding receivables cannot be equated with capital financing and should not be taxed.

6. Reworking of Profit Margin in Accordance with the Proviso to Section 92C:
Ground No.8 directed the AO/TPO to rework the profit margin of the assessee in accordance with the proviso to section 92C. This ground was treated as allowed for statistical purposes.

7. Computation of Interest:
Ground No.19 related to the computation of interest. The Tribunal directed the AO/TPO to provide consequential relief to the assessee, if any.

8. Exclusion of M/s. E-Clerx Services Ltd from the Final List of Comparables:
The Revenue's appeal contested the exclusion of M/s. E-Clerx Services Ltd. The Tribunal upheld the DRP's decision, noting that E-Clerx is functionally different from ITES providers and has been excluded in the assessee's own case for the previous assessment year.

9. Reduction of Telecommunication Charges and Other Expenditure:
Ground Nos. 2 & 3 of the Revenue's appeal contested the reduction of telecommunication charges and other expenditure from export turnover and total turnover for computation of deduction u/s 10A. The Tribunal upheld the DRP's decision, which was in accordance with the Karnataka High Court's ruling in Tata Elxis.

Conclusion:
The assessee's appeal was partly allowed, with significant directions for reworking profit margins, exclusion of certain comparables, and deletion of notional interest adjustments. The Revenue's appeal was dismissed, affirming the DRP's decisions on exclusion of M/s. E-Clerx Services Ltd and reduction of telecommunication charges from export and total turnover.