2025 (6) TMI 1532 - AT - Income Tax

TP Adjustment - comparable selection - HELD THAT - Tata Elxsi Limited is engaged in providing diversified activities including software development services for automotive communications consumer products health-care and retail. It also provides animation and Visual Effects (VFX) services for feature films and episodic television. Therefore we are of the considered view that Tata Elxsi Limited cannot be compared with the appellant company which is engaged in providing software development services to it s AE on cost mark-up basis. Tata Elxsi Limited has been excluded in the case of ADP Private Limited. 2022 (2) TMI 1281 - ITAT HYDERABAD where Tata Elxsi Limited has been excluded on two folds i.e. on turnover filter and also on functional dissimilarity. Therefore we direct the Assessing Officer/TPO to exclude Tata Elxsi Limited from the list of final set of comparables. Persistent Systems Limited deleted from the final set of comparables on account of functional dissimilarity diversified activities turnover filter and considering the activities being a giant company. Aspire Systems (India) Private Limited be excluded from the final set of comparables with the appellant s company taking into consideration of extraordinary event of amalgamation turnover filter and being a giant company. Exclude Infosys Limited from the final set of comparables with that of appellant s company cannot be compared with appellant company which is a capitive service provider to it s AE on cost plus mark-up. Thirdware Solutions Limited is functionally different and also owns intangible assets and that it s segmental financial information is not available. Cybage Software Private Limited cannot be considered as comparable to the appellant company which is engaged in providing software development services to it s AE on cost plus mark-up basis. Thus we direct the Assessing Officer/TPO to exclude Cybage Software Private Limited from the list of final set of comparables. Larsen Toubro Infotech Limited - Since the appellant-company itself has selected Larsen Toubro Infotech Limited as comparable in it s TP documentation therefore in our considered view there is no reason to exclude Larsen Toubro Infotech Limited from the list of comparables. Thus we are inclined to uphold the order of the learned Assessing Officer/DRP and reject the arguments of the appellant-company. Infobeans Technologies Limited be excluded - we are of the considered view that the finding recorded by any Appellate Authority or Court has to be read in conjunction with the facts to make it applicable to another case. Since the appellant-company itself has selected Infobeans Technologies Limited as comparable in it s TP documentation therefore in our considered view there is no reason to exclude Infobeans Technologies Limited from the list of comparables. Thus we are inclined to uphold the order of the learned Assessing Officer/DRP and reject the arguments of the appellant-company. Determination of operating margin of comparable companies - provision for bad debt is not an ascertained liability unlike actual write-off of bad debt - We are of the considered view that there is no merit in the arguments of the assessee that bad debt is operating in nature and needs to be considered for the purpose of computation of PLI. This view is supported by the decision of Thyssen Krupp. Industries India Pvt. Ltd. 2013 (11) TMI 930 - ITAT MUMBAI Similar view has been taken by the ITAT Hyderabad Bench in the case of Foursoft India Limited 2011 (9) TMI 634 - ITAT HYDERABAD Therefore we are of the considered view that at any stretch of imagination the provision of bad debt cannot be considered as operating in nature. DRP after considering all the relevant facts has rightly rejected the objections raised by the appellant company. Thus we are inclined to uphold the findings of the DRP and reject the ground taken by the appellant company.

Summary

The core legal questions considered in this appeal pertain to the determination of Arm's Length Price (ALP) under the Transfer Pricing (TP) provisions of the Income Tax Act, 1961, specifically for international transactions involving software development services. The issues include:

1. Whether the comparables selected by the Transfer Pricing Officer (TPO) and Disputes Resolution Panel (DRP) are appropriate and whether certain companies should be excluded from the final set of comparables on grounds of functional dissimilarity, turnover filters, extraordinary events such as amalgamation, and diversified activities.

2. Whether the TPO and DRP erred in rejecting certain comparables proposed by the appellant on the basis of their non-inclusion in the TPO's search matrix without examining their functional comparability.

3. Whether the provision for bad debts should be treated as an operating expense in computing the Profit Level Indicator (PLI) for transfer pricing purposes.

Issue-wise Detailed Analysis:

1. Appropriateness of Comparables Selected by TPO/DRP:

Legal Framework and Precedents: The determination of ALP requires selection of comparables that are functionally similar to the taxpayer's business, considering factors such as nature of services, risk profile, assets employed, and turnover. The Transfer Pricing Regulations and judicial precedents emphasize the need for comparability in function, assets, and risks (FAR analysis) and application of filters such as turnover limits to exclude outliers.

Court's Interpretation and Reasoning: The Tribunal examined each challenged comparable company in light of the appellant's submissions and relevant judicial precedents, including prior decisions of coordinate benches of the Tribunal which had excluded certain companies on grounds of functional dissimilarity, extraordinary events (such as amalgamation), diversified activities, and turnover thresholds.

Key Findings and Application: The Tribunal found that:

• Tata Elxsi Limited: Excluded due to turnover being more than 50 times that of the appellant and diversified activities including animation and VFX services, supported by prior Tribunal decisions.
• Persistent Systems Limited: Excluded for functional dissimilarity, diversified activities including software products and technology innovation, and turnover exceeding prescribed limits, consistent with prior Tribunal rulings.
• Aspire Systems (India) Private Limited: Excluded due to extraordinary amalgamation event and turnover exceeding limits, consistent with judicial consistency principle and prior Tribunal rulings.
• Infosys Limited: Excluded on grounds of functional dissimilarity, diversified activities including product development, significant brand value and R&D expenditure, and large scale of operations.
• Thirdware Solutions Limited: Excluded for functional dissimilarity, engagement in emerging technology applications distinct from routine software services, and non-availability of segmental details.
• Cybage Software Private Limited: Excluded due to turnover exceeding 10 times that of appellant and functional dissimilarity.
• Larsen & Toubro Infotech Limited: Retained as comparable because it was originally selected by the appellant in its TP documentation; the Tribunal held that subsequent attempts to exclude it based on turnover or brand value lacked merit absent a clear case of functional dissimilarity. The Tribunal emphasized that once a company is selected by the taxpayer as comparable, it cannot be excluded at a later stage without strong grounds.
• Infobeans Technologies Limited: Retained as comparable for similar reasons as Larsen & Toubro Infotech Limited; functional dissimilarities were found to be minuscule and insignificant, and the company was engaged predominantly in software development services.

Treatment of Competing Arguments: The appellant challenged the inclusion of several comparables on grounds of functional dissimilarity, turnover filters, and extraordinary events, relying on prior Tribunal decisions. The Revenue defended the inclusion based on similarity of services and argued that turnover or brand value do not necessarily affect operating margins in software development services, which are based on man-hours. The Tribunal balanced these arguments by applying turnover filters, examining functional profiles, and considering judicial consistency.

Conclusion: The Tribunal directed exclusion of Tata Elxsi Limited, Persistent Systems Limited, Aspire Systems (India) Private Limited, Infosys Limited, Thirdware Solutions Limited, and Cybage Software Private Limited from the final set of comparables. Larsen & Toubro Infotech Limited and Infobeans Technologies Limited were retained.

2. Rejection of Certain Comparable Companies on Basis of Non-Inclusion in TPO Search Matrix:

Legal Framework and Precedents: Selection of comparables requires that companies pass prescribed filters and be functionally comparable. However, the Tribunal has held in prior decisions that a company cannot be excluded solely because it does not appear in a particular data source or search matrix if it is functionally comparable.

Court's Interpretation and Reasoning: The appellant challenged the exclusion of six companies (Sagarsoft India Limited, Sasken Communication Technologies Limited, Maveric Systems Limited, Infomile Technologies Limited, Evoke Technologies Limited, and Harbinger Systems Private Limited) which were rejected by the TPO/DRP solely on the ground that they did not appear in the TPO's search matrix, despite passing other filters and being functionally comparable.

Key Findings and Application: The Tribunal held that the TPO erred in rejecting these companies without examining their functional comparability. It referred to precedents where the Tribunal directed the Assessing Officer/TPO to examine the functions performed by such companies in light of FAR analysis and relevant evidence rather than excluding them on the basis of data source limitations.

Conclusion: The Tribunal set aside the rejection of these companies and remanded the matter to the Assessing Officer/TPO to examine their functional comparability and decide on their inclusion or exclusion accordingly.

3. Treatment of Provision for Bad Debts in Computing Operating Margin:

Legal Framework and Precedents: The computation of operating margin (Profit Level Indicator) requires classification of expenses as operating or non-operating. Provisions for bad debts are generally considered contingent liabilities and not actual operating expenses unless realized.

Court's Interpretation and Reasoning: The appellant contended that provision for bad debts should be treated as operating expenses in computing operating margin. The Revenue and DRP contended that such provisions are non-operating as they are not ascertained liabilities and do not relate to income earned during the year.

Key Findings and Application: The Tribunal agreed with the Revenue, holding that provision for bad debts is an accounting treatment without direct nexus to operating income and is not an operating expense. It relied on precedents where similar views were upheld.

Conclusion: The Tribunal upheld the rejection of the appellant's claim to treat provision for bad debts as operating expenses and affirmed the computation of operating margin excluding such provisions.

Significant Holdings:

"Tata Elxsi Limited cannot be compared with the appellant company which is engaged in providing software development services to its AE on cost plus mark-up basis."

"Persistent Systems Limited has been excluded on the ground of functional dissimilarity, diversified activities, turnover filter and considering the activities being a giant company."

"There is an extraordinary event of amalgamation of Aspire Systems (India) Private Limited with PureApps Consulting Services Pvt. Ltd., and thereby, entire business was transferred... We, therefore, respectfully following the judicial consistency... direct the Assessing Officer to exclude Aspire Systems (India) Private Limited."

"Infosys Limited cannot be compared with appellant company which is a captive service provider to its AE on cost plus mark-up basis... on functional dissimilarity, huge turnover filter, brand value, Infosys Limited shall be excluded."

"Once a particular company is a part of comparable selected in its TP documentation by the appellant-company, it cannot be excluded at subsequent stage merely on the basis of some decisions of Tribunal, unless the appellant-company makes out a case that such company is functionally dissimilar."

"Provision for bad debts is not an ascertained liability unlike actual write-off of bad debt... it is not an expenditure incurred for earning operating revenue... cannot be taken into account in determining the operating profit."

"If a particular company is functionally similar to the appellant company, then merely for the reason of not appearing in the search matrix of TPO, the said company cannot be excluded from the list of comparables."

The Tribunal's final determinations were that several large and diversified companies were excluded from the final set of comparables due to turnover filters, functional dissimilarity, and extraordinary events, while others originally selected by the appellant were retained unless clear grounds for exclusion existed. The Tribunal also directed reassessment of certain comparables rejected solely on data source grounds and upheld the non-inclusion of provision for bad debts as operating expenses in PLI computation. The appeal was partly allowed accordingly for statistical purposes.