2014 (12) TMI 337 - AT - Income Tax

Determination of ALP Selection of Comparables - Maple eSolutions Limited - Nucleus Net Soft & GIS (India) Ltd. - Loss making comparables rejected Violation of OECD guidelines or not Held that - In Stream International Services (P.) Ltd. Versus Assistant Director of Income-tax (International Taxation) - 7(2), Mumbai 2013 (9) TMI 339 - ITAT MUMBAI it has been held that Maple eSolutions Limited has to be excluded from the list of comparables also, in M/s. HSBC Electronic Data Processing India Ltd. Versus Dy. Commissioner of Income-tax Circle 2(2), Hyderabad 2013 (9) TMI 485 - ITAT HYDERABAD it has been held that as against ₹ 24.02 lakhs of employee cost for the year ending 31st March, 2005, employee cost increased to ₹ 132.54 lakhs - also the data processing charges to the extent of ₹ 1.04 crores has increased which indicates that the assessee is outsourcing the work - due to amalgamation during the year the assessee s business model has changed - For all the three reasons, employee cost filter, outsourcing and amalgamation, and Nucleus Net Soft & GIS (India) Ltd. cannot be selected as comparable thus, the TPO should verify the financials of the company and there after decide the issue taking into account the ratio of the decision on the issue thus, the matter is remitted back to the TPO for decision Decided partly in favour of assessee.

Summary

Issues:
Selection of comparables for determining arm's length price (ALP) and rejection of loss-making comparables.

Analysis:
The appeal concerned the selection of comparables for determining the arm's length price (ALP) and the rejection of loss-making comparables for the assessment year 2005-06. The Tribunal had not independently adjudicated ground Nos. 1.2 and 1.3 in the previous order and held that the decision for the assessment year 2004-05 was applicable. The applicant argued that the filters applied for selecting comparables for the assessment years 2004-05 and 2005-06 were different, thus requesting a modification order. The Tribunal recalled the order and heard the matter on 10.11.2014.

The Transfer Pricing Officer (TPO) calculated the PLI of the assessee at 0.08% and identified 9 comparables with an arithmetic mean PLI of 24.65%. An adjustment of Rs. 3,36,84,458 was proposed due to the difference in PLI. The CIT(A) confirmed the TPO's order, leading to the appeal before the ITAT. The ITAT modified the list of comparables proposed by the TPO for the assessment year 2005-06.

Regarding the specific comparables, Tulsyan Technologies Ltd. was excluded as it outsourced a significant portion of its business, making it incomparable with the assessee. Maple Esolutions Ltd. was excluded based on unreliable financial data. Nucleus Net Soft & GIS (India) Ltd. was also excluded due to functional differences and changes post-amalgamation. The ITAT directed the TPO to verify the financials of Macro Information Technology Ltd., a loss-making company, and make a decision accordingly.

The learned counsel relied on previous decisions and precedents to support the exclusion of certain comparables. The ITAT upheld the exclusion of Tulsyan Technologies Ltd., Maple Esolutions Ltd., and Nucleus Net Soft & GIS (India) Ltd. based on valid reasons. The issue of including Macro Information Technology Ltd. was remanded to the TPO for further verification. The appeal was partly allowed for statistical purposes.

In conclusion, the ITAT's judgment addressed the issues of selecting comparables for determining the arm's length price and the exclusion of loss-making comparables. The decision provided detailed reasoning for excluding specific comparables based on valid grounds and referred certain matters back to the TPO for further examination in accordance with relevant legal principles and precedents.