TMI Blog2023 (12) TMI 862X X X X Extracts X X X X X X X X Extracts X X X X ..... ial purposes. The AEs provided these equipments to the assessee in respect of the projects undertaken by assessee on their behalf. On a query being raised by the bench to the Ld.AR regarding the return policy of these assets, the Ld.AR very fairly admitted that the assets or goods or equipments received by it has never been returned in the past assessment years. Under such circumstances, it definitely amounts to enduring benefit in the hands of the assessee. In our view, the asset received free of cost has been rightly capitalised in the hands of the assessee. It was also the correct approach by the TPO by granting depreciation in respect of the same. However, the double disallowance made in respect of the cost of asset received free from the assessee is not acceptable. TPO increased the operating cost base by allocating the depreciation at 60% on the cost of the assets under the three segments based on the operating revenue to compute the markup. This approach by the Ld.TPO are not based on sound principles of transfer pricing adjustments. The assessee has been submitting that the assets received free of cost from its AE are utilised for the purposes of rendering services un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore excluding them. The assessee is directed to furnish the annual reports before the Ld.TPO which shall be verified and the filters applied by the Ld.TPO shall be considered for its exclusion / inclusion as there is no dispute by the Ld.TPO regarding the functional dissimilarities the filters applied by the Ld.TPO are directed to be verified from the annual reports. All necessary data for such verification shall be provided by the assessee. Pressman Advertising Ltd.is functionally not similar to that of assessee as it is engaged in the business of advertising services, selling of space for advertisement in print media and public relations and engaged in providing market research services, which is nothing but knowledge process outsourcing services. Scarecrow Communications Ltd. is not functionally comparable with that of assessee as it is engaged in the business of advertising, communication, and public relations and lacks segmental information. Majestic Research Services Solutions Ltd.is not functionally similar with that of assessee as it is engaged in rendering knowledge process outsourcing services and it is a product company and also engaged in providing market res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Goldman Sachs Services Pvt. Ltd. [ 2022 (4) TMI 1444 - ITAT BANGALORE] having regard to the evidences filed by the assessee. Needless to say that proper opportunity of being heard must be granted to assessee in accordance with law. Nature of expenses - bonding and debonding charges - HELD THAT:- We note that the bonding and debonding expenses have been incurred by assessee in respect of capital asset. Assessee is seeking depreciation on such charges as the same were disallowed u/s. 37 of the Act. The assessee has not filed any evidences in support of its claim however the Ld.AR has submitted that assessee may be provided an opportunity to substantiate the claim. We accordingly remand this issue to the Ld.AO to verify the evidences if any filed by the assessee and to consider the alternate claim of deprecation in accordance with law. - SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SMT. BEENA PILLAI, JUDICIAL MEMBER For the Appellant : Shri Ajay Rotti, CA For the Respondent : Shri D.K. Mishra, CIT DR ORDER PER BEENA PILLAI, JUDICIAL MEMBER Present appeal arises out of final assessment order dated 26.02.2022 passed by the NFAC, Delhi for A.Y. 2017 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned by applying Transactional Net Margin Method (TNMM), stating to be the most appropriate method. OP/OC was taken as the profit level indicator (PLI) in TNMM analysis to compute margin under all three segments. 2.4 Software Development segment: 2.4.1 The Ld.TPO observed that assessee used 6 comparables, by using OP/OC as PLI, and computed average margin at 12.32%. Following were the comparables selected by assessee. Sl. No Name of the Company Weighted Average (%) 1 Akshay Software Technologies Ltd. -2.29% 2 Evoke Technologies Pvt. Ltd. 5.28% 3 Sasken Technologies Ltd. 6.78% 4 Mindtree Ltd. 17.86% 5 Intense Technologies Ltd. 18.15% 6 R Systems International Ltd. 23.51% Median 12.32% 2.4.2 The assessee computed its margin at 15.23% for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 31.25 2.4.6 He thus proposed adjustment of Rs. 87,88,95,344/- under the software development segment. While computing the margin, the Ld.TPO did not grant Working Capital adjustment and rejected risk adjustment by following various decisions of Coordinate Bench of this Tribunal. 2.5 ITeS segment: 2.5.1 The Ld.TPO noted that assessee selected a set of six (6) comparables with a median of 10.35%, the details of which are as under: Sl. No Name of the Company Weighted Average (%) 1 Informed Technologies India Ltd -13.42% 2 Cosmic Global Ltd 5.84% 3 Allsec Technologies Ltd 8.08% 4 R Systems International Ltd (segmental) 12.63% 5 Microland Ltd (seg) 16.51% 6 One Touch Solutions India Private Ltd. 20.37% ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S P I Technologies India Pvt. Ltd. 37.61 40.70 32.18 36.95 13 Inteq B P O Services Pvt. Ltd. 36.64 48.47 32.81 39.51 35 th Percentile 22.37 Median 24.37 65 th Percentile 27.41 2.5.4 He thus proposed adjustment of Rs. 7,86,34,368/- under the ITeS segment. While computing the margin, the Ld.TPO did not grant the Working Capital Adjustment also rejected risk adjustment by following various decisions of Coordinate Bench of this Tribunal. 2.6 MSS Segment: 2.6.1 The Ld.TPO observed that assessee selected a set of following 9 comparables and computed the median margin to be 8.35%. Sl. No. Name of the Company Weighted Average ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reduced accordingly under the 3 segments. 2.8 Interest on delayed trade receivables:- 2.8.1 The Ld.TPO noted that assessee had not benchmarked the delayed trade receivables. The Ld.TPO thus considered the LIBOR of 6 months + 450 basis points that worked out to be 5.975%, as notional interest on outstanding trade receivables in the hands of the assessee. The Ld.TPO thus computed the total adjustment as under: Sl. No Description Adjustment u/s 92CA (In Rs.) 1 Software development Segment 878,895,344 2 ITES segment 78,634,368 3 MSS Segment 24,532,002 4 Interest on delayed receivables 8,51,589 Total adjustment u/s 92CA 98,29,13,303/- 2.8.2 On receipt of the order of the Ld.TPO, the Ld.AO passed the draft assessment order by further proposing addition as under: i) Disallowance u/s. 28(iv) being assets received free of cost or on loan from AE amo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of appeal and accordingly, the above grounds are dismissed as not pressed. 3.7 Thus the effective grounds that has been argued by assessee are Ground nos. 5, 6, 10.1.4, 10.1.5, 12, 13, 14, 15, 16.1.2, 16.1.5, 16.1.7, 16.3, 16.4, 17.1.1 to 17.1.3, 17.2, 18 to 26. 4. Before we undertake the comparability analysis, it is sine qua non to understand the functions performed by the assessee under the software development services segment. Software Development segment Functions performed SanDisk India is engaged in rendering software development services to its AEs. The conceptualization of product is done by Corporate engineering ( CE ) in US. CE understands the needs of the existing customers and prospective customers through marketing channels and forecasts the revenue. The software development team designs and develops the product based on inputs received from the CE. Once the product is developed and approved by various teams, such product passes series of internal testing and the bugs identified, if any are fixed. Activities performed in India The RPG team in India stitches the various components required for the final product as per blue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and it also does not undertake any significant design and development activities on its account that leads to development of non-routine intangibles. SanDisk India uses computer software to carry out its business activities. Tangible Assets SanDisk India employs necessary tangible assets required in respect of the above mentioned functions. Risks assumed Sr. No. Risk SanDisk India AE 1 Market/ Business risk Limited Yes 2 Contract Risk No Yes 3 Capacity Utilization risk No Yes 5 Foreign Exchange Fluctuation risk Limited No 6 Service Liability Risk No Yes Entity Characterisation SanDisk India only performs software development, ITeS and MSS activities and does not perform the key decision making functions including but not limited to market resea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereinabove. Accordingly, this ground raised by assessee stands allowed for statistical purposes. 6. The Ld.AR submitted that Ground nos. 6, 19 and 20 pertains to the free of cost assets received by the assessee from its AE being capitalised by the Ld.AO u/s. 28(iv) and considering depreciation in operating cost under all segments proportionately. 6.1 It is submitted by the Ld.AR that assessee received free of cost assets amounting to Rs. 52,77,34,000/- in the nature of computer, testing equipment, computer accessories etc. He submitted that, the Ld.TPO added the depreciation at 60% of the same to the cost base and allocated under each segment based on the operating revenue to compute the markup. The Ld.AR thus submitted that for the above reason, the margin of the assessee reduced under all the three segments. 6.2 Further the Ld.AO while passing the draft assessment order, disallowance of the cost of assets received free from the AEs u/s. 28(iv) of the act was made. 6.3 He submitted that the Ld.TPO on one hand granted depreciation at 60% on the cost of assets received free but on the other hand added the depreciation to the cost base to compute the arms length ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spect of the cost of asset received free from the assessee is not acceptable. We note that the Ld.TPO increased the operating cost base by allocating the depreciation at 60% on the cost of the assets under the three segments based on the operating revenue to compute the markup. This approach by the Ld.TPO are not based on sound principles of transfer pricing adjustments. The assessee has been submitting that the assets received free of cost from its AE are utilised for the purposes of rendering services under software development segment. Therefore we direct the Ld.TPO to consider the entire cost for the purposes of computing the margin of assessee under the software development segment as per the following directions. While computing the ALP of assessee, the depreciation as per schedule to Companies Act, is to be included as an element of operating cost. In the event, there is a difference in the rate of depreciation between the assessee vis-a-vis the comparables, suitable adjustments are to be granted in accordance with law. (Ref. Rule 10B(e) (i) to (iii)). We also direct the Ld.AO to delete the disallowance made u/s. 28(iv) as the same has been considered in the transfer pricing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In our opinion, this issue is covered by the decision of Coordinate Bench of this Tribunal in case of Mindteck (India) Ltd. vs. DCIT (supra) wherein this Tribunal excluded Tech Mahindra Business Services Ltd. and Infosys BPM Services Pvt. Ltd. by observing as under: 6 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 tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d grouping of companies having turnover of Rs. 1 crore to Rs. 200 crores as comparable with each other was held to be proper. The following relevant observations were brought to our notice:- 9. Having 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counsel for the Assessee the observations of the Hon'ble High Court, in so far as it refers to turnover, were in the nature of obiter dictum. Judicial discipline requires that the Tribunal should follow the decision 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 vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nies listed in grd. No.4 of the concise grounds whose turnover in the current year is more than Rs. 200 Crores should be excluded from the list of comparable companies. 6.1 In view of the above decision of the coordinate bench, 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. 7.5 Nothing has been placed before us by the Ld.DR in order to take a different view. Respectfully following the Hon ble Mumbai Tribunal, we direct the Ld.TPO to exclude Tech Mahindra Business Services Ltd. and Infosys BPM Services Pvt. Ltd. from the final set. Accordingly ground nos. 10.1.4 and 10.1.5 stands allowed. 8. Ground no. 12 - The Ld.AR submitted that Working Capital Adjustment has not been granted to the assessee. After considering the submissions by both sides, we direct the Ld.AO/TPO to compute the Working Capital Adjustment on actuals in order to determine the arms length price of the transaction. Accordingly this ground raised by asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons Pvt. Ltd. for A.Y. 2017-18 Mindteck (India) Ltd. vs. DCIT in IT(TP)A No. 211/Bang/2022 by order dated 30.11.2022 for A.Y. 2017-18 Eurofins IT Solutions India Pvt. Ltd. vs. DCIT in IT(TP)A No. 186/Bang/2022 by order dated 05.01.2023 for A.Y. 2017-18 Ocwen Financial Solutions Pvt. Ltd. for A.Y. 2017-18 The Coordinate Bench of this Tribunal in case of Mindteck (India) Ltd. vs. DCIT (supra) held as under: (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on the following decisions wherein this comparable has been remitted back by Coordinate Bench of this Tribunal in following cases: Global E-Business Operations Pvt. Ltd. for A.Y. 2017-18 Eurofins IT Solutions India Pvt. Ltd. vs. DCIT in IT(TP)A No. 186/Bang/2022 by order dated 05.01.2023 for A.Y. 2017-18 Ocwen Financial Solutions Pvt. Ltd. for A.Y. 2017-18 The Coordinate Bench of this Tribunal in case of Eurofins IT Solutions India Pvt. Ltd. vs. DCIT (supra) held as under: Manipal Digital Systems Pvt. Ltd. 8. The ld. A.R. submitted that this company is functionally different. He submitted that apart from ITES services Manipal Digital is also engaged in providing multiple other services such as pre-media services, web-development services and e-book distribution and various publishing services and no segmental information is available. It is engaged in multiple high end services including conceptualization, designing, analytics, etc., which could not be compared with the low end BPO support services provided by the assessee. 8.1 The CIT(A), NFAC having considered issue observed that it was crystal clear from the annual report that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ld. CIT(A) observed that the comparable company derives the whole revenue from sale of services and hence, there is no need of segmental reporting as per AS 17. As stated above while discussing the functional profile the company derives its total revenue from the ITES activities only. This is further supported by the clarificatory note No. 27 at page 52 of the annual report that the company was operating under one reportable geographical segment and one business segment. Therefore, disclosure as prescribed under AS 17- segment reporting is not applicable. Hence, the objection on lack of segmental information is not valid and not acceptable by the ld. CIT(A). 8.4 On perusal of the annual report by the ld. CIT(A), it was observed that M/s. Manipal Technologies Limited is the promoter and holding company of the assessee. As per the information given under share holding pattern, it was seen by the ld. CIT(A) that there is no change shown under the head Change in Promoter's holding. On the other hand, during the year under review, Manipal Venture Gmbh and Medien Fabrik GmbH has been merged and named as Medienfabrik GMbH. Under the head material changes and commitments af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny the assessee seeks to exclude is Manipal Digital Systems Pvt. Ltd. In this regard, it was submitted that this company is engaged in provision of multiple high-end services including KPO activity like Design Services, Animation. It was submitted that no segmental details were available in the financial statements on the variety of services provided by this company like Design Services, Animation. Reliance was placed on the decision of the ITAT, Pune Bench in the case of Credence Resource Management Pvt. Ltd., (supra) wherein this company was excluded by the Pune Bench with the following observations: 8.The assessee submits that the Manipal Digital Systems Private Limited is functionally different from the assessee which is involved in provision of ITes services. As per the annual report of the company, the activity undertaken by the company is in the nature of pre-press activities which is not comparable to the assessee. That further in the website of the company, it is engaged in the diversified set of activities which involves graphic solutions, packaging brand management, digital publishing and digital content solutions. Therefore, the assessee submits that this company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpany. 12. Placing strong reliance on the decision of the Hon ble Delhi High Court in the case of Ramp green Solutions Pvt. Ltd. Vs. CIT, ITA No.102/2015 dated 10.08.2015 copy of which is placed before us, the Ld. Counsel brought to our notice at Para 31 wherein the Hon ble Delhi High Court observed that the Tribunal had held that once a service falls under the category of ITes then there is no subclassification of segment. Thus, according to the Tribunal, no differentiation could be made between the entities rendering ITes. The Hon ble Delhi High Court rejecting such view of the Tribunal had held that such a view, if upheld, would be contrary to the fundamental rationale of determining ALP by comparing controlled transactions/entities with similar uncontrolled transactions/entities. ITes encompasses a wide spectrum of services that use Information Technology based delivery. Such service could include rendering highly technical services by qualified technical personnel involving advanced skills and knowledge, such as engineering, design and support. While, on the other end of the spectrum ITes would also include voice based call centers that render routine customer support ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctional analysis at ITeS level and that the comparables so selected could be put to further test by comparing specific functions performed in the international transactions with uncontrolled transactions to attain relatively equal degree of comparability. 34. We have reservations as to the Tribunal's aforesaid view in Maersk Global Centers (India) Pvt. Ltd. (supra). As indicated above, the expression 'BPO' and 'KPO' are, plainly, understood in the sense that whereas, BPO does not necessarily involve advanced skills and knowledge; KPO, on the other hand, would involve employment of advanced skills and knowledge for providing services. Thus, the expression 'KPO' in common parlance is used to indicate an ITeS provider providing a completely different nature of service than any other BPO service provider. A KPO service provider would also be functionally different from other BPO service providers, inasmuch as the responsibilities undertaken, the activities performed, the quality of resources employed would be materially different. In the circumstances, we are unable to agree that broadly ITeS sector can be used for selecting comparables without making ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acteristics, functions undertaken, assets used, risks assumed. This is essential to ensure the efficacy of the exercise. There is sufficient flexibility available within the statutory framework to ensure a fair ALP. 13. The Ld. Counsel for the assessee further submitted therefore, it is clear that merely because two companies are doing ITes services, on general categorization comparability is not permitted and one has to look into the specific services rendered in the spectrum of ITes and for this reason, the said company i.e. Manipal Digital Systems Private Limited is not a comparable company with that of the assessee company since absolutely functionally different. The Ld. Counsel also submitted that the TPO should have specifically stated why he has selected this company as comparable with that of the assessee company since the onus is on him to give reason for such inclusion. The logic was shown from the decision of the Pune Bench of the Tribunal in the case of M/s. Tasty Bite Eatables Limited Vs. ACIT, ITA No.1823/PUN/2018 for the assessment year 2014-15 dated 03.06.2021 wherein it was held that since the comparable chosen by the assessee, the onus is upon it to prove t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ival submissions and are of the view that it would be just and appropriate to set aside the question of comparability of Manipal Digital Systems Pvt. Ltd., to the TPO/AO to examine as to whether the functional profile of the assessee and the assessees in the decisions cited by the learned AR remains the same in Assessment Year 2017-18 as it was in Assessment Year 2016-17. 12.1.10 Accordingly, the above comparable i.e. Manipal Digital Systems Pvt. Ltd. is directed to be excluded from the list of comparables. 9.1 In view of the above, taking a consistent view, we direct the AO/TPO to exclude Manipal Digital Systems Pvt. Ltd. as comparable on the similar lines. As nothing contrary to the above has been brought on record by the Ld.DR, respectfully following the above view, we direct the Ld.AO/TPO to exclude Manipal Digital Systems Pvt. Ltd. from the final list. 10.3 Inteq BPO Services Pvt. Ltd.: The Ld.AR submitted that this comparable is functionally not comparable with that of assessee as it is engaged in the provision of business process management services which means streamlining the different steps in repeatable workflows to make them as efficient as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Information Technology Enabled Service (ITES) is defined as outsourcing of processes that can be empowered with information technology and covers diverse areas like finance,. HR, administration, health care, telecommunication, manufacturing etc. Armed with technology and manpower, these services are provided from e-enabled locations. This radically reduces costs and improves service standards. Some of the services offered include Medical Transcription, Document Processing, Data Entry and Processing, Data Warehousing, IT Help Desk Services, Application Development, Enterprise Resource Planning and Telecommunication Services. ITeS is a type of Outsource services which involves IT in various fields like Insurance, 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ld.AR submitted that assessee wish to argue three comparables for exclusion on functional dissimilarity. a) Pressman Advertising Ltd. b) Scarecrow Communications Ltd. c) Majestic Research Services Solutions Ltd. It is submitted that these comparables are not functionally similar to the assessee under the marketing support service segment as they are engaged in knowledge process outsourcing services and is a product company. The Ld.AR relied on the decisions of Coordinate Bench of this Tribunal in the following cases in support of its exclusion. a) M/s. Radisys India Ltd. vs. DCIT in IT(TP)A No. 190/Bang/2022 by order dated 18.11.2022 for A.Y. 2017-18 b) M/s. Arm Embedded Technologies Pvt. Ltd. vs. DCIT in IT(TP)A No. 899/Bang/2022 by order dated 08.06.2023 for A.Y. 2018-19 12.1 Pressman Advertising Ltd. The Ld.AR submitted that this comparable is functionally not similar to that of assessee as it is engaged in the business of advertising services, selling of space for advertisement in print media and public relations and engaged in providing market research services, which is nothing but knowledge process outsourcing services. The Coordinate Be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yee during the financial year 2017-18. It has incurred no employee expenses and the annual report states that the company had no employees during the year. The company essentially acts as an intermediary by purchasing the services from external agencies and reselling them in contrast to the Assessee which is a MSS provider. This is evident from the presence of expenses such as professional charges, service charges, etc., which suggest that Scarecrow depends on external agencies that provides advertisement, marketing support. 6.2.1 Further, in terms of the annual report, the company has various revenue streams such as retainership fees, shoot/production fees and service receipts other fees. No segmental information is available as regards these diverse activities and therefore, the company cannot be considered as comparable to the Assessee. 6.2.2 The ld. A.R. submitted that this company was directed to be excluded by the DRP in the assessee s own case for the assessment years 2013-14 and 2014-15 on the ground that it is not functionally comparable to the assessee. The relevant extracts of the DRP s directions are reproduced on page 256-257 of the appeal set. 6.2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irect the AO/TPO to exclude this Scarecrow Communications Ltd. from the list of comparables to determine the ALP of international transactions. 12.3 Majestic Research Services Solutions Ltd. The Ld.AR submitted that this comparable is not functionally similar with that of assessee as it is engaged in rendering knowledge process outsourcing services and it is a product company and also engaged in providing market research services which is knowledge process outsourcing services. The Coordinate Bench of this Tribunal in case of M/s. Radisys India Ltd. vs. DCIT (supra) for A.Y. 2017-18 held as under: (ii) Majestic Research Services Solutions Limited 13. The Ld.AR submitted that this comparable is functionally not similar to the assessee as it is involved in numerous services like Eye Tracking, Mobile Analytics, Video analysis, Facial recognition, Digital tracking, Online communities, Neuro Science, Emotional analysis, Automated audience measurement, Sensory sciences, etc. Under the marketing research services, which can be verified at page Nos. 4125 to 4126 of the paper book. At the outset, the Ld.AR submitted that these activities carried by this compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of Special Bench of this Tribunal in case Instrumentation Corpn. Ltd. v. Asstt. DIT in ITA No. 1548 and 1549 (Kol.) of 2009, dated 15/07/2016, held that outstanding sum of invoices is akin to loan advanced by assessee to foreign AE., hence it is an international transaction as per explanation to section 92 B of the Act. Alternatively, it has been argued that working capital adjustment subsumes sundry creditors. In such situation computing interest on outstanding receivables and lones and advances to international transaction would amount to double taxation. Hon'ble Delhi Tribunal in case of Orange Business Services India Solutions Pvt. Ltd. vs. DCIT in ITA No. 6570/Del/2016 vide its order dated 15.2.2018 observed that: There may be a delay in collection of monies for supplies made, even beyond the agreed limit, due to a variety of factors which would have to be investigated on a case to case basis. Importantly, the impact this would have on the working capital of the assessee would have to be studied. It went on to hold that, there has to be a proper inquiry by the TPO by analysing the statistics over a period of time to discern a pattern which would indicate that vis- - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alance of such salary has been reimbursed to the AE as the same has been paid by the AE to the employees. The Ld.AR submitted that all the details relevant in respect of the salaries and the TDS deduction which were submitted before the authorities below which has not been considered. 14.2 He has placed reliance on the observation of Coordinate Bench of this Tribunal in case of M/s. Toyota Boshoku Automotive India Pvt. Ltd. vs. DCIT in IT(TP)A No. 1646/Bang/2017 by order dated 13.04.2022 and in the case of Goldman Sachs Services Pvt. Ltd. vs. DCIT in IT(IT)A Nos. 362 to 369 338 to 345/Bang/2020 by order dated 29.04.2022. Identical issue has been considered at length. 14.3 On the contrary, the Ld.DR placed reliance on orders passed by authorities below. 14.4 We have perused the submissions advanced by both sides in the light of records placed before us. 14.5 We note that the evidences filed by assessee has not been considered by the revenue authorities. We therefore remand this issue to the Ld.AO to consider the claim in accordance with the decision of Coordinate Bench of this Tribunal in the above referred cases M/s. Toyota Boshoku Automotive India Pvt. Ltd. vs. DCIT ..... X X X X Extracts X X X X X X X X Extracts X X X X
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