TMI Blog2022 (11) TMI 1367X X X X Extracts X X X X X X X X Extracts X X X X ..... unctions furnished by the assessee before us. Mind Tree Ltd. - A.R. furnished the details of functionality before us. These facts are not at all commented by the AO/TPO or by Ld. DRP. Hence, the issue is remitted back to the file of AO/TPO for fresh consideration in the light of above functionality of Mind Tree Ltd. company. Persistent Systems Ltd. - This issue is infructuous in view of our findings on the basis of turnover filter of this company. Aptus Software Labs Pvt. Ltd. - Main contention of assessee is that the employee cost filter applied by AO/TPO is 20%, whereas in this case, employee cost filter is less than 20%. Hence, it should be excluded - In our opinion, these facts are to be examined by AO/TPO in the relevant assessment year 2016-17. Accordingly, the issue is remitted back o the file of AO/TPO only in respect of assessment year 2016-17. Consilient Technologies Pvt. Ltd. - As it is appropriate to remit this issue to the file of AO/TPO to consider it afresh in the light of submissions made by the Ld. A.R. with regard to functionality of the comparable. This issue is accordingly remitted to the file of AO/TPO for fresh consideration. L T Infotech Lt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g a reference to TPO for determining arm's length price without demonstrating as to why it was necessary and expedient to do so. The Honorable DRP has erred in partially confirming the action of the Assessing officer. 1.3 The lower income tax authorities have erred in: a) making transfer pricing adjustment of Rs. 5,91,00,534 (Software Development Segment) and Rs. 1,17,44,791 (ITeS Segment); b) not appreciating that there is no amendment to the definition of income and charging or computation provision relating to income under the head Profits Gains of Business or Profession do not refer to or include the amounts computed under Chapter X and therefore addition made under Chapter X is bad in law; and c) passing the orders without considering all the submissions and/or without appreciating properly the facts and circumstances of the case and the law applicable. Segmental Profit and loss 2. Grounds relating to Segmental Profit and loss Accounts 2.1 The Learned TPO erred in not considering the submission of segmental profit and loss account with its associated enterprises under false and erroneous reasons. 2.2 The Learned TPO/ Hon'ble DRP erred in: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowing companies, even though they are not functionally comparable to the appellant: (a) Datamatics Business Solutions Ltd (b) Ultramine Pigment Ltd. (c) InfosygBPM Ltd (d) SPI Technologies India Pvt Ltd (e)Tech Mahindra business services Ltd (f) Inteq BPO Services Pvt. Ltd. 4.3 The Learned TPO/Hon'ble DRP erred in facts and in law: (a) by calculating the RPT percentage by separately considering RPT Sales over Total Sales and RPT expenses over Total expenses notwithstanding that RPT percentage is to be calculated by adopting a common denominator of total operating sales. (b) by adopting the RPT filter at 25% instead of 15% of operating sales. 4.4 The Learned TPO/Hon'ble DRP erred in excluding the following companies, even though they are functionally comparable to the appellant: (a) Suprawin Technologies Ltd (b) Cosmic Global Ltd (c) Allsec Technologies Ltd (d) iSN Global Solutions Pvt Ltd (e) R Systems International Ltd 4.5 The Learned TPO/Hon'ble TPO erred in facts and in law: (a) by modifying the comparable filter of persistent losses filter by excluding companies with operating losses in at least two out of three ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ories: a) Software development services and b) IT enabled services. For the year under consideration, it earned a margin of 24.58% (OP/OC) from the software segment and 25.88% (OP/OC) from the ITES segment in respect of its international transactions. 2.3 The Company had filed its original income tax return electronically for AY 2017-18 declaring a total income of Rs. 9,21,28,650. Subsequently a revised return was filed on 08.02.2019 declaring a total income of Rs.9,25,46,830. The tax liability of Rs 3,05,98,758, was discharged by TDS and advance tax aggregating to Rs. 5,67,94,546, resulting in refund of Rs. 2,61,95,790. 2.4 The aforesaid revised return was picked up for scrutiny by the Assessing Officer under CASS. Notices were issued from time to time for which the Company duly replied. The Transfer Pricing Officer ( TPO ) issued an Order dated 28.01.2021 proposing an adjustment of Rs. 6,57,71,606 on account of software development segment and Rs. 1,17,44,791/- on account of ITeS segment. The total adjustments amounted to Rs. 7,75,16,397/- 2.5 The Assessing officer issued Draft assessment order under section 144C of the Income-tax Act, 1961 ['the Act' for shor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee) should be excluded. The TPO in the order passed under section 92CA of the Act rejected the aforesaid contention by holding the turnover of a company in the IT-BPO industry does not have any impact on the margins earned. The assessee took the same contention before the Ld. DRP. The Ld. DRP relied on the decision of the Delhi High Court in the case of Chryscapital Investment Advisors India Pvt Ltd v DCIT (2015) 376 ITR 183 (Del), wherein it was held a company which is otherwise functionally comparable cannot be excluded merely on account of high turnover filter. 4.2 The Ld. A.R. for the assessee further submitted that the ITAT in assessee s own case for AY 2016-17 in IT(TP)A No. 252/Bang/2021 dated 11.07.2022 has held that companies whose turnover exceeded Rs. 200 crores during the relevant year should be excluded from the list of comparable companies. The relevant observations of the Tribunal are noted at paras 11 to 14 (internal page 9 to 14) of the order. The finding of the Tribunal as noted in para 14 of the order was extracted below by the Ld. A.R.: 14. In view of the aforesaid decision, we hold that 7 companies listed in grd.No.4 of the concise grounds who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Infosys Ltd. is at Rs.59,289 crores as against the turnover of the assessee at Rs.75.43 crores. In our opinion, this issue is covered by the judgement of the coordinate bench in the case of Mindteck India Ltd. in IT(TP)A No.252/Bang/2021 dated. 11.7.2022, wherein held as follows:- 11.As far as comparability of companies listed as (a) to (g) in Grd.No.4 raised by the assessee is concerned, the admitted factual position is that the turnover of these companies is more than Rs.200 Crores and the assessee s turnover is only Rs. 82,52,62,269/-. The TPO excluded from the list of comparable companies chosen by the assessee in its TP study companies whose turnover was less than Rs.1 Crore. The contention of the assessee before the DRP was that while the TPO excluded companies with low turnover, he failed to apply the same yardstick to exclude companies with high turnover compared to the assessee. The reason for excluding companies with low turnover was that such companies do not reflect the industry trend as their low cost to sales ratio made their results less reliable. The contention of the assessee was that there would be effect on profitability wherever there is high or low turnover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing heard both the parties and having considered the rival contentions and also the judicial precedents on the issue, we find that the TPO himself has rejected the companies which .ire (sic) making losses as comparables. This shows that there is a limit for the lower end for identifying the comparables. In such a situation, we are unable to understand as to why there should not be an upper limit also. What should be upper limit is another factor to be considered. We agree with the contention of the learned counsel for the assessee that the size matters in business. A big company would be in a position to bargain the price and also attract more customers. It would also have a broad base of skilled employees who are able to give better output. A small company may not have these benefits and therefore, the turnover also would come down reducing profit margin. Thus, as held by the various benches of the Tribunal, when companies which arc loss making are excluded from comparables, then the super profit making companies should also be excluded. For the purpose of classification of companies on the basis of net sales or turnover, we find that a reasonable classification has to be made. Du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of a non-jurisdiction High Court, even though the said decision is of a non-jurisdictional High Court. We however find that the Hon'ble Bombay High Court in the case of CIT Vs. Pentair Water India Pvt.Ltd. Tax Appeal No.18 of 2015 judgment dated 16.9.2015 has taken the view that turnover is a relevant criterion for choosing companies as comparable companies in determination of ALP in transfer pricing cases. There is no decision of the jurisdictional High Court on this issue. In the circumstances, following the principle that where two views are available on an issue, the view favourable to the Assessee has to be adopted, we respectfully follow the view of the Hon'ble Bombay High Court on the issue. Respectfully following the aforesaid decision, we uphold the order of the DRP excluding 5 companies from the list of comparable companies chosen by the TPO on the basis that the 5 companies turnover was much higher compared to that the Assessee. 17.8. In view of the above conclusion, there may not be any necessity to examine as to whether the decision rendered in the case of Genisys Integrating (supra) by the ITAT Bangalore Bench should continue to be followed. Since argumen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nch, the Tribunal consistently holding that when the turnover exceeding Rs.200 crores is to be excluded from the list of comparable to determine the ALP of International transaction with the A.E. In view of the above, we direct the AO/TPO to exclude Infosys Ltd. from the list of comparables. 6.2. On the similar lines, the following companies turnover as mentioned in ground No.3.1 above are exceeding Rs.200 crores. Hence, these comparables are excluded from the list of comparables: (b) Larsen Toubro Infotech Ltd Rs. 618.29 crores (c) Persistent Systems Ltd - Rs. 287.84 crores (e) Thirdware Solution Ltd. - Rs. (f) Cybage Software Pvt Ltd. - Rs. 758.87 crores (g) Nihilent Ltd. - Rs. 259.38 crores (h) R Systems International Limited - Rs. 263.75 crores (i) Tech Mahindra Limited - Rs.24,058.30 crores 6.3 In view of the above, we are of the opinion that the turnover of the assessee company from software ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ove, he submitted that the business carried on by Great Software is not similar to that of the assessee. Accordingly, the ld. A.R. for the assessee requested for exclusion of Great Software from the final set of comparable companies. 8. The Ld. D.R. submitted that the Ld. DRP has observed from annual report (page No. 14), the principal business activity for the company is computer programming consultancy and related activities. As per the statement of profit and loss account the revenue is derived from sale of services amounting to Rs. I 26.10 crores in the relevant financial year ending on 31.03.2017 (page No. 111 and 116 of the AR). Ld. DRP noted that at page 117 of the annual report, the footnote to the statement of profit and loss account at page 116 specifically mentions that the revenue from software development includes software services only. In this case the difference in various segments i.e. low end to high end in services is mainly on account of differences in the skill/qualification and pay structure of employees and, therefore, the main point to be considered is whether such differences between employees is going to materially affect the margin of the comparables. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he areas of agile, analytics and information management, application development and maintenance, business process management, business technology consulting, cloud, digital business, independent testing, infrastructure management services, mobility, product engineering and SAP services. 10.3 He further referred an extract from page 93 of the Annual report which shows the revenue spread from various services that the company offers 10.4 As it may be observed, the ld. AR submitted that Mindtree has income from various business lines apart from software development. These functions are not performed by the assessee. Software development constitute only 22% of the revenue whereas the balance 78% relate to those functions that are not comparable to the assessee. 10.5 The above submissions were made before the TPO by the ld AR in response to the show cause notice and the same is available at page 541-542 of the paperbook. 10.6 Further, this company was held to be not a comparable company to the case of a software development services provider in Yahoo Software Development India P. Ltd. v JCIT [(2020) 115 taxmann.com 60 (Bangalore Trib.) Para 41-42 of the order]. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... company. (d) Aptus Software Labs Pvt. Ltd. 12. The Ld. A.R. submitted that this company is functionally different on the following reasons: 12.1 The Ld. A.R. for the assessee referred the Annual Report of the company (Page 640 of Annual Report Compilation) which states that the principal business activity of the company is Information technology services . There is no further business description available in the annual report. In the absence of the same, the aforesaid business activity would ideally fall either under information technology enabled services or under contract research and development services . As per the definition (extracted above), development of information technology at various levels specified therein, would fall under contract research and development services . Therefore, since the company is not into software development services per se, the ld AR requested that it should be excluded as being functionally different. 12.2 Without prejudice, it fails employee cost filter for two years: The ld AR further submitted that the TPO has applied a filter for including companies having employee cost of more than 25% of turnover. The assessee, in i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Even the code 6201 is related to computer programming consultancy and other software related services, which fall under the category software development services only. The annual report has not mentioned any other activities like product development etc. Even the independent directors report states that the company has not incurred any expenditure towards R D and technology absorption. On perusal of the fixed assets schedule, the ld DRP observed that there are no intangible assets. The information given under the head revenue recognition as Note 25 mentions that the revenue is earned from service transactions. Therefore, the company is into software development services as it does not have any sale of products and any expenditure-on R D etc. As regards employment cost filter, the Ld. DRP stated that the company passes the employment cost filter. On perusal of the profit and loss account of the company an amount of Rs.1,61,45,378/- was debited towards employment cost as against total sales of Rs.3,86,03,935/- which comes to 41.82%. Ld. DRP concluded that the company is functionally comparable to the assessee and also passes the employment cost filter. Therefore, he opined that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es like Data Warehousing and Business Intelligence, Testing Services and Infrastructure Management Services. The services offerings are focussed mainly towards four verticals namely manufacturing, utilities, financial services and telecom. For the period ended March 31, 2016, March 31, 2015 and March 31, 2014, as per the information, in the annual reports, 100 percent of the operating revenues respectively were derived from software development services. The activities- Application maintenance and Development, Enterprise Resource Planning and Testing are all software development activities and fall within the umbrella 1T services, as per NASSCOM. As per the annual report information for the year ended 31.03.2017, the main object of the assessee company is to carry on the business of designing software development, software maintenance and support services the areas of computer networks, computer software and hardware, data communication equipment, electronic equipment, radio and wireless communication product and equipment and wireless telecommunication equipment of every description. Thus, the activities of L T are functionally comparable to the assessee company, as evident from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) Evoke Technologies Limited. (d) Sankya Infotech Limited 20.1 The assessee wants inclusion of following comparables:- (a) Maveric Systems Ltd. 20.2 This ground is not pressed at the time of hearing, hence, dismissed as not pressed. (b) Sagarsoft (India) Limited 20.3 The Ld. A.R. submitted that Sagarsoft is engaged in the business of software development services. In the following decisions, the ITAT has held it to be a comparable company in the case of software development services provider. a) EIT Services India Pvt. Ltd. v DCIT [IT(TP)A No. 210/Bang/2021 dated 22.08.2022 AY 2016-17] It was included as a comparable company for AY 2016-17 for the reason that the DRP had directed its inclusion in AY 201718 Page 1957-1958 of Case law compilation Para 9.7-9.12 of the order b) Quicklogic Software (India) Pvt. Ltd. v DCIT [IT(TP)A No. 181/Bang/2022 dated 27.07.2022 AY 2017-18 - Page 1921-1922 of Case law compilation Para 13.4 of the order] c) M/s. Hewlett Packard (India) Software Operation Pvt. Ltd. v DCIT [IT(TP)A No.213/Bang/2021 dated 03.10.2022 AY 2016-17] Filed during the course of hearing on 21.11.2022 Para 20-22.1, Page 42-43 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e company qualifies the quantitative filters applied by the learned TPO. (He referred page 2017 of the paper book) 9.9 Further, the comparable has been accepted by the Ld. DRP in AY 2017-18 in Appellant's own case. (He referred Page 63 of the Case Law Compilation). 9.10 In view of the above-mentioned reasons, Ld. A.R. requested to direct the TPO to include this comparable to the final list of SWD/IT Segment. 9.11 Ld. D.R. relied on the order of Ld. DRP. 9.12 We have heard the rival submissions and perused the materials available on record. It was the contention of Ld. A.R. that in the year 2017-18, the Ld. DPR itself included this comparable while determining the ALP in that assessment year. In our opinion, there is no reason to not include this company as a comparable in the A.Y. 2016-17. Accordingly, we direct the AO/TPO to include Sagar Soft (India) Ltd. in the assessment year 2016-17 also. 22.1 In view of the above order of the Tribunal, we are inclined to direct the AO/TPO to include this Sagarsoft (India) Limited in the list of comparables. (c) Evoke Technologies Limited: 23. At the time of hearing, this ground was not pressed by the ld. AR for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctionality basis. a) Datamatics Business Solutions Ltd (b) Ultramine Pigment Ltd. (c) Infosys BPM Ltd (d) SPI Technologies India Pvt Ltd (e) Tech Mahindra business services Ltd (f) Inteq BPO Services Pvt. Ltd. 26.2 At the time of hearing, the Ld. A.R. has not pressed sl.nos.(c), (d) (e) above and hence, these comparables are dismissed as not pressed. (a) Datamatics Business Solutions Ltd. 26.3 The Ld. A.R. submitted that this company provides essential business services to fortune 1000 companies and enterprises across the globe. This company provides fully integrated services and innovative solutions which cover the length and breadth of essential business needs across customers facing front-office functions and critical back-office operations. The information available in the website of this company in support of the above was submitted before the TPO (He referred Page 564-566 of Paper book). 26.4 The ld AR submitted that in the following decisions, the ITAT has held that this company is not a comparable company in the ITES segment. a) Akamai Technologies India (P.) Ltd. v DCIT [2016] 74 taxmann.com 188 (Bangalore - Trib.) AY 2006-07 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld DRP rejected the contentions of the assessee. However, keeping the principles of fairness and in the interest of justice in mind ld DRP directed the TPO to once again verify the computations of employee cost and export turnover filters. Against this assessee is in appeal before us. 26.11 We have heard the rival submissions and perused the materials available on record. The contention of the Ld. A.R. is that the functionality of this company is different and also it fails the export turnover filter and employee cost filter. In our opinion, it is appropriate to remit this issue to the file of AO/TPO for fresh consideration and reexamine it afresh in the light of above submissions of Ld. A.R. Accordingly, this issue is remitted back to the file of AO/TPO for fresh consideration. (f) Inteq BPO Services Pvt. Ltd. 27. The Ld. A.R. for the assessee submitted that this company is engaged in providing services in the nature of Revenue Cycle Management, Claims processing services and document data processing. The information available in the website of this company in support of the same was submitted before the TPO (He referred Page 572 of Paperbook). 27.1 He further sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce, Finance Banking, and so forth. These soft skills are mainly utilized in KPO (Knowledge Process Outsourcing) and BFO (Business Process Outsourcing) and LPO (Legal Process Outsourcing), rear office job and phone centres. Therefore, the functional profile of the comparable company is very much in the domain of ITES only. Therefore, the contention of the assessee that the functional profile of the company is dissimilar is that of company is not acceptable to the ld DRP. 27.5 We have heard the rival submissions and perused the materials available on record. After hearing both the parties, we are of the opinion that this comparable came for consideration in the case of Vee Technologies Pvt. Ltd. cited (supra), wherein held that this company is involved in business process management services and cannot be considered as a comparable to a company providing ITeS such as the assessee. Being so, we direct the AO/TPO to exclude Inteq BPO Services Pvt. Ltd. from the list of comparables. Directed accordingly. 28. Ground No.4.3 of the assessee s appeal is reproduced as under: 4.3The Learned TPO/Hon'ble DRP erred in facts and in law: (a) by calculating the RPT percentage by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which satisfies the export revenue filter of 75%. The extracts from the annual report of the company in support of the above are as follows: For turnover Page 1654 of the Annual Report Compilation For export turnover Page 1663 of the Annual Report Compilation 29.5 In view of the above, the ld. AR for the assessee submitted that since the company satisfies the export revenue filter of 75% as adopted by the TPO, the assessee requests for inclusion of the same in the final set of comparable companies. 30. The Ld. D.R. submitted that the ld DRP noted that M/s ISN Global Solutions Pvt. Ltd. fails the export filter. The ld DRP noted that the TPO has applied the filter that minimum 75% of operating revenue should be from exports. He found that the Indian Law supports the use of export sales/ total sales as a filter vide Rule 10B(2)(d) which provides that 'comparability of an international transaction shall be judged with respect to conditions prevailing in markets in which respective parties to the transactions operate, including the geographical location and size of the market......'. Further, para 4.43 of the OECD Transfer Pricing Guidelines 2010 pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 11.07.2022 [Page 1713 to 1746 of compilation filed on 02.09.2022] has held that a company can be rejected as a comparable only if it has losses in all the 3 financial years forming part of the search matrix. In other words, it held that if the company has profits in any one financial year, it should be considered as a comparable. He extracted the relevant observations of the Tribunal recorded at para 20 (internal page 21-22) of the order are as follows: 20. The next company that the assessee seeks to include is Sagarsoft India Ltd. As far as inclusion of this company is concerned, the learned Counsel for the assessee placed reliance on decision of ITAT, Mumbai Bench of the Tribunal in the case of Redhat India Pvt. Ltd., Vs. NFAC (2022) 132 taxmann.com 52 (Mumbai Tribunal). In the present case, the AO rejected this company for the reason that out of the 3 earlier Financial Years, this company has persistently suffered losses and hence should not be taken as a comparable company. The DRP agreed with the conclusion of the TPO. In the case of Redhat India Pvt. Ltd., (supra) which was also an appeal in relation to Assessment Year 2016-17, the Tribunal held that the comparability ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;ble TPO erred in facts and in law: (a) by modifying the comparable filter of persistent losses filter by excluding companies with operating losses in at least two out of three years as against the filter adopted by the Appellant of excluding companies with operating losses in all the three years. (b) by excluding Cyfuture India Pvt. Ltd on the basis of the persistent I4ses filter. 34.1. At the time of hearing, the Ld. A.R. has not pressed this ground. Hence, this ground of appeal is dismissed as not pressed. 35. Ground No.5.1 of the assessee s appeal is reproduced below: 5.1 The Learned TPO/Hon'ble DRP erred in law and on facts in not allowing appropriate adjustments under Rule 10B to account for, inter alia, differences in (i) accounting practice; (ii) positive working capital adjustment; (iii) risk profile between the Appellant and the comparable companies. 35.1. At the time of hearing, Ld. A.R. argued only with regard to granting of working capital adjustment. After hearing both the parties, we are of the opinion that this issue came for consideration before this Tribunal in the case of Huawei Technologies India Pvt. Ltd. in IT(TP)A No.1940/Bang/201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ); (v) the net profit margin thus established is then taken into account to arrive at an arm's length price in relation to the international transaction [or the specified domestic transaction]; (f) ..... (2) For the purposes of sub-rule (1), the comparability of an international transaction [or a specified domestic transaction] with an uncontrolled transaction shall be judged with reference to the following, namely: (a) the specific characteristics of the property transferred or services provided in either transaction; (b) the functions performed, taking into account assets employed or to be employed and the risks assumed, by the respective parties to the transactions; (c) the contractual terms (whether or not such terms are formal or in writing) of the transactions which lay down explicitly or implicitly how the responsibilities, risks and benefits are to be divided between the respective parties to the transactions; (d) conditions prevailing in the markets in which the respective parties to the transactions operate, including the geographical location and size of the markets, the laws and Government orders in force, costs of labour and capital in the mar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , say, 60 days trade terms for payment of accounts, the price of the goods should equate to the price for immediate payment plus 60 days of interest on the immediate payment price. By carrying high accounts receivable a company is allowing its customers a relatively long period to pay their accounts. It would need to borrow money to fund the credit terms and/or suffer a reduction in the amount of cash surplus which it would otherwise have available to invest. In a competitive environment, the price should therefore include an element to reflect these payment terms and compensate for the timing effect. 14. The opposite applies to higher levels of accounts payable. By carrying high accounts payable, a company is benefitting from a relatively long period to pay its suppliers. It would need to borrow less money to fund its purchases and/or benefit from an increase in the amount of cash surplus available to invest. In a competitive environment, the cost of goods sold should include an element to reflect these payment terms and compensate for the timing effect. 15. A company with high levels of inventory would similarly need to either borrow to fund the purchase, or reduce the amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ause that would be on the basis of working capital deployed throughout the year. (ii) Segmental working capital is not disclosed in the annual reports of companies engaged in different segments and therefore proper comparison cannot be made. (iii) Disclose in the balance sheet does not contain break up of trade and nontrade debtors and creditors and therefore working capital adjustment done without such break up would result in computation being skewed. (iv) Cost of capital would be different for different companies and therefore working capital adjustment made disregarding this different based on broad approximations, estimations and assumptions may not lead to reliable results. 16. The CIT(A) also placed reliance on a decision of Chennai ITAT in the case of Mobis India ITA No.2112/Mds/2011 (2013) 38 taxmann.com. That decision was based on the factual aspect that the Assessee was not able to demonstrate how working capital adjustment was arrived at by the Assessee. Therefore nothing turns on the decision relied upon by the CIT(A) in the impugned order. In the matter of determination of Arm s Length Price, it cannot be said that the burden is on the Assessee or the Depa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore this objection of the CIT(A) is also not sustainable. 17. In the light of the above discussion we are of the view that the CIT(A) was not justified in denying adjustment on account of working capital adjustment. Since, the CIT(A) has not found any error in the TPO s working of working capital adjustment, the working capital adjustment as worked out by the TPO has to be allowed. We may also add that the complete working capital adjustment working has been given by the Assessee and a copy of the same is at page 173 192 of the Assessee s paper book. No defect whatsoever has been pointed out in these working by the CIT(A). We may also further add that in terms of Rule 10B(1)( e) (iii) of the Rules, the net profit margin arising in comparable uncontrolled transactions should be adjusted to take into account the differences, if any, between the international transaction and the comparable uncontrolled transactions which could materially affect the amount of net profit margin in the open market. It is not the case of the CIT(A) that differences in working capital requirements of the international transaction and the uncontrolled comparable transactions is not a difference which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee wants inclusion of following comparables: a) ACE Software Exports Ltd. b) Sagarsoft India Ltd. c) Issumation Technologies Pvt. Ltd. d) Inteq Software Private Ltd. e) Kumaran Systems Private Ltd. f) Synerzip Softech India Pvt. Ltd. 38.1 At the time of hearing, the assessee has pressed only inclusion of following 3 comparables: (a) ACE Software Exports Ltd. (c) Issumation Technologies Pvt. Ltd. (d) Inteq Software Private Ltd. 38.2 After hearing both the parties, we are of the opinion that this issue is appropriate to remit to the file of AO/TPO for fresh consideration as we have no occasion to examine these comparables at the time of passing the order. Hence, this issue is remitted to the file of AO/TPO for fresh consideration. 39. Now coming to 2nd additional ground, the assessee wants inclusion of following comparables: a) I Services India Pvt. Ltd. b) Crystal Voxx Ltd. c) ISN Global Solutions Ltd. d) E-Zest Solutions Ltd. e) Cyfuture India Pvt. Ltd. 39.1 After hearing both the parties, we are of the opinion that the AO/TPO have no occasion to examine these comparables. Hence, in the interest of justice, we remit these ..... X X X X Extracts X X X X X X X X Extracts X X X X
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