Avineon India Private Limited, Hyderabad, Hyderabad V. DCIT, Circle-1(1), Hyderabad, Hyderabad

ITA 152/HYD/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 6109 (ITAT-HYDERABAD)
• Duration Of Justice: 11 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-01-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 27-10-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 16-02-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: MOHAN SINGH SINGHANIA
• Assessee Lawyers: PRADEEP KASTHALA
• Keywords: Depreciation; Transfer pricing; International transaction
• Section: 43B; 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES B : HYDERABAD BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI S. RIFAUR RAHMAN, ACCOUNTANT MEMBER ITA.NO.152/HYD/2015 ASSESSMENT YEAR 2010-2011 M/S. AVINEON INDIA P. LTD., HYDERABAD 081. PAN AADCA7416Q VS. THE DCIT, CIRCLE - 1(1) HYDERABAD. (APPELLANT) (RESPONDENT) ITA.NO.262/HYD/2015 ASSESSMENT YEAR 2010-2011 THE DCIT, CIRCLE - 1(1) HYDERABAD. VS. M/S. AVINEON INDIA P. LTD., HYDERABAD 081. PAN AADCA7416Q (APPELLANT) (RESPONDENT) FOR ASSESSEE : MR. PRADEEP KASTHALA FOR REVENUE : MR. MOHAN SINGH SINGHANIA DATE OF HEARING : 27 .1 0 .2015 DATE OF PRONOUNCEMENT : 20 . 0 1.201 6 ORDER PER SMT. P. MADHAVI DEVI, J.M. BOTH ARE CROSS-APPEALS FOR THE A.Y. 2010-2011. BOTH THESE APPEALS ARE AGAINST THE ORDER OF THE FIN AL ASSESSMENT ORDER PASSED UNDER SECTION 143(3) READ W ITH SECTION 144C(5) OF THE I.T. ACT DATED 19.01.2015 GI VING EFFECT TO THE DIRECTIONS OF THE DRP. 2 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE COMPANY, WHICH IS ENGAGED IN THE BUSINESS OF PROVID ING COMPUTER SOFTWARE DEVELOPMENT AND RELATED SERVICES TO ITS ASSOCIATED ENTERPRISE (AE), FILED ITS RETURN OF I NCOME FOR THE A.Y. 2010-2011 ON 12.10.2010 DECLARING TOTAL IN COME OF RS.3,16,66,236 AFTER CLAIMING DEDUCTION OF RS.3,96,58,148 UNDER SECTION 10A OF THE ACT. DURING THE ASSESSMENT PROCEEDINGS UNDER SECTION 143(3) OF THE ACT, THE A.O. NOTICED THAT ASSESSEE HAS ENTERED INTO INTERNATIONAL TRANSACTIONS WITH ITS AE. THEREFORE, IN ACCORDANCE WITH THE PROVISIONS OF SECTION 92CA OF T HE I.T. ACT, THE A.O. REFERRED THE DETERMINATION OF THE ARM S LENGTH PRICE OF THE INTERNATIONAL TRANSACTIONS TO T HE TPO. THE TPO PASSED AN ORDER UNDER SECTION 92CA(3) OF TH E ACT DATED 31.10.2013 AND IN ACCORDANCE TO WHICH, THE A. O. PASSED THE DRAFT ASSESSMENT ORDER AND THE SAME WAS FORWARDED TO THE ASSESSEE FOR ITS OBJECTIONS, IF AN Y. 2.1. THE ASSESSEE PREFERRED ITS OBJECTIONS BEFORE THE DRP AND THE DRP VIDE ORDER DATED 28.11.2014 GRANTED PARTIAL RELIEF TO THE ASSESSEE AND IN ACCORDANCE WI TH THE DRP DIRECTIONS, THE FINAL ASSESSMENT ORDER WAS PASS ED ON 19.01.2015 AGAINST WHICH BOTH THE ASSESSEE AS WELL AS THE REVENUE ARE IN APPEAL BEFORE US. IN THE ASSESSE ES APPEAL, THE ASSESSEE HAS RAISED 8 GROUNDS OF APPEAL WHICH ARE AS UNDER : 1. THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER IS ERRONEOUS BOTH IN LAW AND ON THE FACTS O F THE CASE. 3 2. THE LD. ASSESSING OFFICER ('A.O') TRANSFER PRICING OFFICER ('TPO') HAS ERRED IN LAW AND FACTS BY NOT CONSIDERING THE DISALLOWED EXPENDITURE OF COPYRIGHT INFRINGEMENT SETTLEMENT EXPENSES PAID TO THE AE AS NON-OPERATING AND EXTRA-ORDINARY EXPENDITURE WHILE CALCULATING ARM'S LENGTH MARGIN. 3. THE LD. A.O/TPO/DISPUTE RESOLUTION PANEL ('DRP') HAS ERRED BY INCLUDING TCS E-SERVE INTERNATIONAL LTD AS COMPARABLE COMPANY. 4. THE LD. A.O/TPO/DRP HAS ERRED BY NOT INCLUDING 2 COMPANIES (ICRA ONLINE, VISHWA VIKAS SERVICES LIMITED) AS COMPARABLES TO THAT OF THE APPELLANT COMPANY. 5. THE LD. A.O/DRP HAS ERRED IN LAW AND ON FACTS BY DISALLOWING 'LOYALTY REWARDS'. 6. THE LD. A.O/DRP HAS ERRED BY NOT CONSIDERING EXPENDITURE 'ADVERTISEMENT BOARD PENALTY CHARGES' AS ALLOWABLE EXPENDITURE. 7. WITHOUT PREJUDICE TO THE ABOVE, THE LD TPO IS NOT JUSTIFIED IN APPLYING ALP OF 29.25% TO REIMBURSEMENT OF EXPENSES WHERE THE ADJUSTED ALP ARRIVED BY HIM IS 29.11%. 8. FOR THESE AND SUCH OTHER GROUNDS THAT MAY BE ADVANCED AT THE TIME OF HEARING, THE APPELLANT PRAYS THAT: A. COPYRIGHT INFRINGEMENT SETTLEMENT EXPENSES PAID TO THE AE AND DISALLOWED BY THE AO BE CONSIDERED AS NON-OPERATING EXPENSES AND REDUCED FROM OPERATING COST TO COMPUTE PLI OF THE APPELLANT; B. TCS E-SERVE INTERNATIONAL LIMITED BE REJECTED AS A COMPARABLE WHILE CONSIDERING ICRA ONLINE AND VISHWA VIKAS SERVICES LTD AS COMPARABLES; 4 C. RELIEF BE GRANTED IN RESPECT OF LOYALTY REWARDS AND ADVERTISEMENT BOARD PENALTY EXPENSES DISALLOWED BY THE AO. D. ADOPT CORRECT ALP ON REIMBURSEMENT OF EXPENSES. 3. AT THE TIME OF HEARING, LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE IS NOT INTERES TED TO PURSUE GROUND NO.6. THEREFORE, GROUND NO.6 IS DISMI SSED AS NOT PRESSED. 4. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS: (I) IN THE FACTS AND ON THE CIRCUMSTANCES OF THE CASE, THE HON'BLE DRP WAS NOT JUSTIFIED IN DIRECTING THE A. 0 TO DELETE FOUR OF THE COMPARABLE COMPANIES WITHOUT PROVING HOW THE FUNCTIONAL PROFILE OF THESE COMPANIES DIFFER WITH THE FUNCTIONAL PROFILE OF THE COMPARABLE COMPANIES ? (II) IN THE FACTS AND ON THE CIRCUMSTANCES OF THE CASE, THE HON'BLE DRP WAS NOT JUSTIFIED IN DIRECTING THE A.O TO DELETE COMPANIES ON THE GROUND OF HAVING HIGH TURNOVER WHICH IS CONTRARY TO RULE-10B(2) WHICH PRESCRIBES COMPARABILITY OF INTERNATIONAL TRANSACTIONS WITH UNCONTROLLED TRANSACTIONS WITH REFERENCE TO FUNCTIONS PERFORMED, ASSETS EMPLOYED AND RISKS ASSUMED ? (III) IN THE FACTS AND ON THE CIRCUMSTANCES OF THE CASE, WHETHER THE HON'BLE DRP WAS NOT JUSTIFIED IN CONSIDERING THE BRAND VALUE OF INFOSYS BPO AND TCS E-SERVE LTD AS A REASON FOR EXCLUSION WITHOUT PROVING HOW THE BRAND VALUE IMPACTED THE PROFIT MARGINS AND HOW THE BRAND VALUE MAKES THE COMPANY FUNCTIONALLY DIFFERENT. 5 (IV) IN THE FACTS AND ON THE CIRCUMSTANCES OF THE CASE, WHETHER THE HON'BLE DRP WAS NOT JUSTIFIED IN CONSIDERING THE PREDOMINANT MARKET PRESENCE OF INFOSYS BPO AND TCS E-SERVE LTD AS A REASON FOR EXCLUSION WITHOUT PROVING HOW THE PREDOMINANT MARKET PRESENCE IMPACTED THE PROFIT MARGINS IGNORING THE FACT THAT THE ALLEGED PREDOMINANT MARKET PRESENCE AT BEST CAN EARN MORE REVENUES AND DO NOT INCREASE THE PROFIT MARGIN AND FURTHER AS TO HOW THE MARKET PRESENCE MAKES THE COMPANY FUNCTIONALLY DIFFERENT. (V) IN THE FACTS AND ON THE CIRCUMSTANCES OF THE CASE, THE HON'BLE DRP WAS NOT JUSTIFIED IN REJECTING ACCENTIA TECHNOLOGIES LTD AND ECLERX SERVICES LTD ON THE MERE ASSUMPTION THAT ACQUISITION HAS AN IMPACT WITHOUT PROVING THAT IT HAS REALLY IMPACTED THE PROFIT MARGIN AND HOW THE COMPANY BECAME FUNCTIONALLY DIFFERENT. (VI) IN THE FACTS AND ON THE CIRCUMSTANCES OF THE CASE, THE HON'BLE DRP WAS NOT JUSTIFIED IN DISTINGUISHING THE VERTICALS WITHIN THE ITES SECTOR IN THE CASE OF ECLERX SERVICES LTD AND ACCENTIA TECHNOLOGIES LTD WHEN BOTH TPO AND ASSESSEE HAVE NOT CONSIDERED THE SAME WHILE SELECTING/ REJECTING THE COMPANIES AND MORE SO WHEN NO SUCH DEMARCATION BETWEEN KPO/ BPO WAS DONE EITHER BY THE TAXPAYER OR BY THE TPO. (VII) IN THE FACTS AND ON THE CIRCUMSTANCES OF THE CASE, THE HON'BLE DRP HAS ERRED IN TREATING THE LOYALTY REWARDS NOT AS BONUS OR COMMISSION WITHIN THE MEANING OF SECTION 36(1)(II) AND THEREBY DIRECTING THE AO TO ALLOW THE SAID EXPENDITURE U/ S. 43B. (VIII) IN THE FACTS AND ON THE CIRCUMSTANCES OF THE CASE, THE HON'BLE DRP WAS NOT JUSTIFIED IN DIRECTING THE A.O. TO DEDUCT TELECOMMUNICATION CHARGES FROM EXPORT TURNOVER AS WELL AS TOTAL TURNOVER DESPITE THE FACT THAT THE SAME IS NOT 6 ALLOWABLE AS PER CLAUSE (IV) OF EXPLANATION-2 TO SECTION 10A(9A). (IX) ANY OTHER GROUND THAT MAY BE URGED AT THE TIME OF HEARING. 5. ON PERUSAL OF GROUNDS OF APPEAL RAISED BY BOTH THE ASSESSEE AS WELL AS REVENUE, WE FIND THAT THE C OMMON GROUND OF APPEAL RAISED BY BOTH THE PARTIES IS AGAI NST THE EXCLUSION OF CERTAIN COMPANIES AND AGAINST INCLUSIO N OF CERTAIN COMPANIES BY THE TPO AND AS CONFIRMED BY TH E DRP AND EXCLUSION OF CERTAIN COMPANIES AS DIRECTED BY DRP. SINCE THIS ISSUE RELATES TO T.P. STUDY BY THE ASSESSEE AND THE TPO, WE SHALL DEAL WITH THIS GROUND FIRST. 6. DURING THE T.P. STUDY, THE TPO NOTED THE FOLLOWING FINANCIAL RESULTS OF THE ASSESSEE. DESCRIPTION AMOUNT (IN RS.) OPERATING REVENUE 43,02,13,582 OPERATING COST 37,98,76,885 OPERATING PROFIT 5,03,36,697 OP/OR (%) 11.70 OP/OC (%) 13.25 6.1. HE ALSO OBSERVED THAT THE ASSESSEE HAD ENTERED INTO THE FOLLOWING INTERNATIONAL TRANSACTIO NS WITH ITS A.E. A.E. NATURE OF TRANSACTION AMOUNT (RS.) AVINEON INC. PROVISION OF ITES 16,32,26,818 AVINEON EUROPE LTD., PROVISION OF ITES 14,49,87,629 AVINEON INC. REIMBURSEMENT OF EXPENSES PAID 20,86,461 AVINEON INC. REIMBURSEMENT OF EXPENSES RECEIVED 11,93,600 AVINEON EUROPE LTD., REIMBURSEMENT OF EXPENSES RECEIVED. 28,65,288 31,43,59,796 7 6.2. THE TPO, AFTER GOING THROUGH THE T.P. DOCUMENTS SUBMITTED BY THE ASSESSEE, OBSERVED THAT THE METHOD OF SEARCH ADOPTED BY THE ASSESSEE SUFFERS FR OM DEFECTS WHICH HAS RESULTED IN SELECTION OF INAPPROP RIATE COMPARABLES. THEREFORE, HE REJECTED THE T.P. DOCUME NTS OF THE ASSESSEE AND CONDUCTED AN INDEPENDENT ANALYSIS BY AGGREGATING ALL THE TRANSACTIONS UNDER TNMM. A DETA ILED SHOW CAUSE NOTICE DATED 19.08.2013 WAS ISSUED TO TH E TAX PAYER AND THE ASSESSEE FILED ITS REPLY DATED 17.10. 2013. THEREAFTER, THE TPO ADOPTED THE FOLLOWING 11 COMPAN IES AS COMPARABLES IN HIS FINAL LIST OF COMPARABLES. S.NO. NAME OF THE COMPANY 1. ACCENTIA TECH. 2. ACROPETAL TECHNOLOGIES LTD., (SEG.) 3. AXIS I.T. & T LTD., 4. COSMIC GLOBAL 5. ECLERX SERVICES LTD., 6. INFOSYS BPO LTD., 7. TCS E - SERVE INTERNATIONAL LTD., 8. TCS E - SERVE LTD., 9. JEEVAN SCIENTIFIC TECHNOLOGY LTD., (SEG.) 10. MICROGENETIC SYSTEMS LTD., 11. CROSSDOMAIN SOLUTIONS P. LTD., 6.3. THEREAFTER, AFTER APPLYING THE AVERAGE MARGIN OF THE COMPARABLES TO THE OPERATING MARGIN OF THE T AX PAYER, THE A.O. DETERMINED THE ARMS LENGTH PRICE ( ALP) FOR ITES SERVICES AS UNDER : AFTER APPLYING THE AVERAGE MARGINS OF THE COMPARABLES TO THE FINANCIALS OF THE TAXPAYER, THE RESULT IS AS FOLLOWS : 8 DESCRIPTION AMOUNT (IN RS) ARMS LENGTH PRICE 27.90% LESS : WCA -1.21% ADJUSTED ARMS LENGTH MARGIN 29.11 OPERATING COST (OC) 37,98,76,885 ADJUSTED ARMS LENGTH MARGIN (%) (AALM) 29.11% ARMS LENGTH PRICE = (100 + AALM) * OC 49,04,59,04 6 PRICE RECEIVED (OR) 43,02,13,582 ADJUSTMENT U/S.92CA 6,02,45,464 THUS THE ARM'S LENGTH PRICE OF THE TAXPAYER IS RS.49,04,59,046/- AND THE SHORTFALL OF RS.6,02,45,464/- IS TREATED AS ADJUSTMENT U/S. 92CA OF LT. ACT AND THE TOTAL INCOME OF THE TAX PAYER WI LL BE ENHANCED ACCORDINGLY U/S 92CA(3) OF THE IT. ACT. REIMBURSEMENT : THE TAXPAYER HAS RECEIVED REIMBURSEMENT OF EXPENSES TO THE TUNE OF RS.40,58,888. IN THIS REGAR D, THE TAXPAYER HAS STATED IN THE TP DOCUMENT THAT THE RECOVERIES ARE MADE AT COST ON THE BASIS OF ACTUAL PAYMENTS TO THIRD PARTY SERVICE PROVIDERS, SUCH AS HOTEL AND TRAVEL AGENCIES. THE THIRD PARTY SERVICE PROVIDER'S INVOICES CAN BE A CUP AND HENCE THE BOOK VALUES OF THE SAID TRANSACTIONS HAVE BEEN TAKEN AS REPRESENTATIVE OF THE ARM'S LENGTH PRICE. THE ISSUE HAS BEEN CONSIDERED. THE RECEIPT OF REIMBURSEMENT HAS NOT BEEN ROUTED THROUGH BOOKS OF ACCOUNT. NO INDEPENDENT PARTY WOULD RENDER SUCH SERVICES WITHOUT ANY MARK UP. EVEN OTHERWISE, RECOVERY OF EXPENSES ALWAYS FORMS PART OF OPERATING COST IN THE CASE OF INDEPENDENT COMPARABLE COMPANIES. THUS THESE EXPENSES INCURRED BY THE TAXPAYER AND SUBSEQUENTLY REIMBURSED BY AES ARE ADDED TO THE OPERATING REVENUES AS WELL AS THE OPERATING COSTS FOR THE PURPOSE OF AGGREGATION OF TRANSACTIONS AND DETERMINING ARM'S LENGTH PRICE UNDER TNMM. THE TAXPAYER HAS MADE PAYMENTS TOWARDS THE OPERATIONS AND ON THE EMPLOYEES AS ALSO 9 ARE OPERATIONAL IN NATURE AND THEREFORE CANNOT BE EXCLUDED. REIMBURSEMENT RECEIVED 40,58,888 ARMS LENGTH PRICE OF REIMBURSEMENT @ 29.25% 52,46,113 ADJUSTMENT OF REIMBURSEMENT 11,87,225 THUS THE ARM'S LENGTH PRICE OF THE TAXPAYER IS RS.52,46,113/- AND THE SHORTFALL OF RS.11,87,225/- IS TREATED AS' ADJUSTMENT U/S. 92CA OF I.T. ACT AND TH E TOTAL. INCOME OF THE TAXPAYER WILL BE ENHANCED ACCORDINGLY U/S 92CA(3) OF THE I.T. ACT. 6.4. AGAINST THIS T.P. ADJUSTMENT, THE ASSESSEE FI LED OBJECTIONS BEFORE THE DRP SEEKING EXCLUSION OF THE FOLLOWING COMPANIES FROM THE FINAL LIST OF COMPARAB LES VIZ., (1) ACCENTIA TECHNOLOGIES LTD., (2) ECLREX SERVICES LTD., (3) INFOSYS BPO LTD., (4) TCS E-SERVE LIMITED AND (5) T CS E- SERVE INTERNATIONAL LTD. IN ADDITION TO THE ABOVE, THE ASSESSEE HAS ALSO SOUGHT INCLUSION OF THE FOLLOWING TWO COMPANIES IN THE LIST OF COMPARABLES VIZ., (1) ICRA ONLINE LTD., AND (2) VISHWA VIKAS SERVICES LTD., 6.5. THE DRP BY RELYING ON THE ORDERS OF THE ITAT IN ASSESSEES OWN CASE FOR THE A.YS. 2006-07 AND 20 07-08 DIRECTED FOR EXCLUSION OF (1) ACCENTIA TECHNOLOGIES LTD., (2) (2) ECLREX SERVICES LTD., (3) INFOSYS BPO LTD., (4) TCS E- SERVE LIMITED. THE DRP HOWEVER, REJECTED ASSESSEES OBJECTIONS AGAINST TCS E-SERVE INTERNATIONAL LTD., AND ALSO INCLUSION OF (1) ICRA ONLINE LTD., AND (2) VIS HWA VIKAS SERVICES LTD. AGAINST THE RELIEF GRANTED BY T HE DRP, THE REVENUE IS IN APPEAL BEFORE US, WHILE THE ASSES SEE IS IN APPEAL AGAINST THE RELIEF DENIED BY THE DRP. 10 7. AT THE TIME OF HEARING, LD. COUNSEL FOR THE ASSESSEE, HAS FILED DETAILED WRITTEN SUBMISSIONS BE FORE US AND THE SAME IS TAKEN ON RECORD. WHILE REITERATING THE SUBMISSIONS MADE BY THE ASSESSEE BEFORE THE AUTHORI TIES BELOW, LD. COUNSEL FOR THE ASSESSEE, SUBMITTED THAT THE TCS E-SERVE INTERNATIONAL LTD., IS NOT COMPARABLE T O THE ASSESSEE AS IT HAS HIGH MARGIN OF 51.51% AND THAT ASSESSEE HAS OBJECTED TO THE INCLUSION OF THIS COMP ARABLE BEFORE BOTH THE AUTHORITIES BELOW ON THE GROUND THA T THIS COMPANY IS SUBSIDIARY OF TCS CONGLOMERATE AND ACCORDINGLY IS BACKED BY BRAND AND LARGE SCALE CLIE NT BASE. HE HAS SUBMITTED THAT THIS COMPANY IS THE SUBSIDIARY OF TCS E-SERVE LIMITED AND THE COMMON PRACTICE FOR SUCH SUBSIDIARY IS TO BID FOR LARGE CO NTRACTS TAKING THE CREDENTIALS OF THE GROUP WHICH RESULT IN LARGER ECONOMIES OF SCALE AND INCREASE MARGINS. HE HAS SUBMITTED THAT AS PER THE ANNUAL REPORT OF TCS ESIL FOR F.Y. 2009-10, THE COMPANY PROVIDES A BROAD RANGE O F SERVICES THAT CATER TO THE PROCESS MANAGEMENT REQUIREMENTS OF WIDE RANGE OF FINANCIAL PRODUCTS AN D ENTERPRISE SUPPORT FUNCTIONS, WHICH INCLUDE FINANCI AL INFORMATION PROCESSING (DATA PROCESSING) AND CUSTOM ER CONTRACT (VOICE BASED). AS IT BECAME A PART OF THE TCS/TATA GROUP, YOUR COMPANY, BACKED BY TCS SCALE AND LARGE CLIENT BASE, HAS ENHANCED ITS SERVICE OFFERINGS AND HAS AL SO STARTED SERVICING NEW CLIENTS DURING THE YEAR UNDER REVIEW. 11 7.1. WITHOUT PREJUDICE TO THE ABOVE ARGUMENTS, LD. COUNSEL FOR THE ASSESSEE FURTHER SUBMITTED THAT THI S COMPANY SHOWED ABNORMAL TREND IN PROFITABILITY AND SCALE OF OPERATIONS DURING THE LAST TWO FINANCIAL YEARS A S REPRODUCED BELOW : DETAILS F.Y. 2007 - 08 F.Y. 2008 - 09 F.Y. 2009 - 10 INCOME - 54,45,78,000 149,29,56,000 OTHER INCOME 16,05,000 18,59,000 - OR TOTAL 16,05,000 54,64,37,000 149,29,56,000 EMPLOYEE COSTS 54,91,000 17,92,62,000 - OPERATIONAL EXPENSES 2,25,02,000 53,71,25,000 98,53,96,000 DEPRECIATION - 3,52,81,000 - TC TOTAL 2,79,93,000 75,16,68,000 98,53,96,000 OP (2,63,88,000) (20,52,31,000) 50,75,60,000 PLI (OP/TC) (94.27) (27.30) 51.51 7.2. HE FURTHER SUBMITTED THAT THE DRP IN ITS ORDE R HAS REJECTED TCS E-SERVE LIMITED, INFOSYS BPO LTD., AS COMPARABLES ON THE GROUND THAT THEY HAVE HUGE BRAND VALUE BUT FAILED TO REJECT TCS ESIL ON SIMILAR GROU NDS WHICH IS ALSO HAVING HUGE BRAND VALUE. THEREFORE, ACCORDING TO HIM, FOR THE VERY SAME REASONS, IT HAS TO BE EXCLUDED FROM THE LIST OF COMPARABLES. LD. COUNSEL FOR THE ASSESSEE RELIED UPON THE FOLLOWING DECISIONS OF THI S TRIBUNAL FOR EXCLUSION OF THESE COMPANIES FROM THE FINAL LIST OF COMPARABLES : 1. CYIENT LTD VS. DCLT, HYDERABAD (TS-224-ITAT- 2015 (HYD)-TP) 2. CAPITAL IQ INFORMATION SYSTEMS (INDIA) PVT. LTD (TS-229-ITAT-2014 (HYD)-TP) 12 3. IVY COMPTECH PRIVATE LIMITED (TS-17- ITAT2014(HYD)-TP) 4. BERKADIA SERVICES INDIA PRIVATE LIMITED (TS-294- ITAT-2014 (HYD)) 8. LD. D.R., ON THE OTHER HAND HAS SUBMITTED THAT HAVING HUGE BRAND VALUE ALONE IS NOT SUFFICIEN T FOR EXCLUSION OF SUCH COMPANIES UNLESS AND UNTIL ASSESS EE DEMONSTRATES THAT FAR ANALYSIS OF THIS COMPANY MAKE S IT INCOMPARABLE TO THE ASSESSEE. HE ALSO CHALLENGED TH E EXCLUSION OF (1) ACCENTIA TECHNOLOGIES LTD., (2) EC LREX SERVICES LTD., (3) INFOSYS BPO LTD., (4) TCS E-SERV E LIMITED FROM THE FINAL LIST OF COMPARABLES AS DIREC TED BY THE DRP ON THE VERY SAME GROUND. LD. D.R. RELIED UP ON THE JUDGMENT OF THE HONBLE DELHI HIGH COURT IN THE CASE OF CRIS CAPITAL INVESTMENT IN ITA.NO.417 OF 2014 DA TED 27 TH APRIL, 2015 WHEREIN THE HONBLE DELHI HIGH COURT H AS HELD THAT A MERE CIRCUMSTANCE OF A COMPANY, OTHERWI SE CONFORMED TO THE STIPULATIONS IN RULE 10B(2) IN ALL DETAILS, PRESENTING A PECULIAR FEATURE SUCH AS HUGE PROFIT O R HUGE TURNOVER, IPSO FACTO, DOES NOT LEAD TO ITS EXCLUSION AND THE TPO, FIRST HAS TO SATISFY THAT SUCH DIFFERENCES DO NOT MATERIALLY AFFECT THE PRICE OR COST. SECONDLY, AN A TTEMPT TO MAKE REASONABLE ADJUSTMENT TO ELIMINATE THE MATERIA L EFFECT FOR SUCH DIFFERENCE HAS TO BE MADE. THUS, AC CORDING TO HIM, THE EXCLUSION OF THESE COMPANIES FROM THE F INAL LIST OF COMPARABLES IS NOT WARRANTED AND IS NOT JUS TIFIED. 9. HAVING REGARD TO THE RIVAL CONTENTIONS AND THE MATERIAL ON RECORD, WE FIND THAT ASSESSEE HAS RAISE D 13 OBJECTIONS TO ALL THE ABOVE FIVE COMPANIES WHICH AR E UNDER CHALLENGE BEFORE THE TPO. AS REGARDS ACCENTIA TECHNOLOGIES LTD., IS CONCERNED, ASSESSEE HAD CONTE NDED THAT THE COMPANY OPERATES IN A DIFFERENT ENVIRONMEN T FROM THAT OF THE TAX- PAYER AND FURTHER THAT IT HAS INTANGIBLES OF BRAND/IPRS. IT WAS ALSO STATED THAT ACCENTIA TECHNOLOGIES LTD., USED ITS OWN SOFTWARE O N WHICH IT OWNS IP RIGHTS AND OFFERS DIFFERENT SERVIC ES TO ITS CUSTOMERS AS IS EVIDENCED FROM THE ANNUAL REPORT. ASSESSEE HAD ALSO OBJECTED THAT THE COMPANY OPERATE S IN KNOWLEDGE PROCESS OUTSOURCING AND PROVIDES DATA ANALYTICS, DATA MANAGEMENT AND PROCESS IMPROVEMENT SOLUTIONS TO GLOBAL ENTERPRISE CLIENTS. 9.1. AS REGARDS INFOSYS BPO LTD., IS CONCERNED, IT WAS SUBMITTED THAT THE COMPANY HAS HUGE TURNOVER WI TH GLOBAL BRAND VALUE AND OPERATES ON LARGE SCALE WITH LAKHS OF EMPLOYEES. IT WAS SUBMITTED THAT THE TALENT POOL AVAILABLE WITH SUCH COMPANIES IS SIGNIFICANTLY DIFF ERENT AND HIGH VALUE AND SUCH COMPANIES HAVING DIFFERENT FUNCTIONS, ASSETS AND RISK PROFILE IS TO BE EXCLUDE D. 9.2. AS REGARDS TCS E-SERVE INTERNATIONAL LTD., IS CONCERNED, THE ASSESSEE HAD CONTENDED THAT THE ASSE SSEE IS A SUBSIDIARY OF TCS E-SERVE LIMITED AND BEING PA RT OF THE GROUP OF A LARGE CONGLOMERATE, THIS COMPANY HAS LARGE CLIENT BASE. 14 9.3. AS REGARDS TCS E-SERVE LIMITED, IT WAS CONTENDED THAT THIS COMPANY IS PART OF LARGE CONGLO MERATE AND IS PART OF TATA GROUP OF COMPANIES AND HAS HUGE TURNOVER WITH GLOBAL BRANDS AND OPERATES ON LARGER SCALE WITH LAKHS OF EMPLOYEES. 9.4. THE TPO REJECTED THE ASSESSEES CONTENTIONS WHEREAS THE DRP BY FOLLOWING THE ITAT DECISION IN C ERTAIN OTHER CASES AND ALSO ITS EARLIER DIRECTIONS AND OBS ERVING THAT THE ABOVE COMPANIES HAVE HUGE TURNOVERS, HUGE BRAND VALUE AND THEIR DOMINANT PRESENCE IN THE MARK ET AND ALSO IN VIEW OF INCOMPLETE DETAILS ETC., DIRECT ED THE TPO TO EXCLUDE TCS E-SERVE LIMITED AND INFOSYS BPO LTD., FROM THE FINAL LIST OF COMPARABLES. FURTHER, DRP ALSO DIRECTED THAT ACCENTIA TECHNOLOGIES LTD., AND ECLRE X SERVICES LTD., TO BE EXCLUDED IN VIEW OF EXTRAORDIN ARY EVENTS LIKE MERGER, ACQUISITIONS AND KPO OPERATIONS . 10. WE FIND THAT THE DECISIONS ON WHICH ASSESSEE HAS PLACED RELIANCE UPON, ALL HAVE DEALT WITH THE S AME A.Y. 2009-10 AND THE TPO HAS ALSO ADOPTED THE SAME COMPANIES AS COMPARABLES TO THE ASSESSEES THEREIN. THE TRIBUNAL HAS CONSIDERED THE COMPARABILITY OF THE ASSESSEES THEREIN WITH SUCH OTHER COMPANIES AND HA S DIRECTED THAT THESE COMPANIES BE EXCLUDED FROM THE LIST OF FINAL COMPARABLES. THOUGH TCS E-SERVE INTERNATIONAL LTD., HAS NOT BEEN CONSIDERED IN ANY OF THE ABOVE DECISIONS, WE FIND THAT THE RATIONALE ON WHICH THES E COMPANIES HAVE BEEN EXCLUDED IS ALSO APPLICABLE TO TCS 15 E-SERVE INTERNATIONAL LTD., APPLYING THE SAME RATIO , WE DIRECT THE TPO/A.O. TO EXCLUDE TCS E-SERVE INTERNAT IONAL LTD., ALSO FROM THE FINAL LIST OF COMPARABLES. ACCO RDINGLY, GROUND NO.3 OF THE ASSESSEE IS ALLOWED AND GROUND N OS. 1 TO 6 OF THE REVENUE ARE REJECTED. 11. GROUND NO.2 RAISED BY THE ASSESSEE IS AGAINST NOT CONSIDERING THE DISALLOWED EXPENDITURE OF COPYR IGHT INFRINGEMENT SETTLEMENT EXPENSES PAID TO THE A.E. A S NON- OPERATING AND EXTRAORDINARY EXPENDITURE WHILE CALCU LATION OF ARMS LENGTH MARGIN. 11.1. BRIEF FACTS LEADING TO THIS ISSUE ARE THAT T HE ASSESSEE HAD PAID AN AMOUNT OF RS.12,60,112 TOWARDS INFRINGEMENT OF COPYRIGHTS OF M/S.MASTER FILE, A CA NADIAN CORPORATION WHICH IS INTO THE BUSINESS OF STOCK PHO TO LABORATORY AND LICENSING OF MAJOR RESOURCE FOR A FI ELD. DURING THE RELEVANT F.Y., IT IS STATED THAT AN EMPL OYEE OF THE ASSESSEE HAD USED CERTAIN PHOTOS OWNED BY M/S. MASTER FILE CORPORATION, ON THE WEBSITE OF THE ASSE SSEE I.E., WWW.AVINEON.IND.CO . AND UPON ANALYSING SUCH PHOTOS, M/S. MASTER FILE CORPORATION HAS FILED SUIT ON AVINEON, USA, A RELATED PARTY OF THE ASSESSEE IN U SA COURTS. SINCE THE COST OF LITIGATION IN USA COURTS WAS EXPECTED TO BE EXORBITANT, IT IS STATED THAT A MUTU AL SETTLEMENT WAS REACHED BY THE A.E. WHEREBY, AN AMOU NT OF US $ 28000 (EQUIVALENT INR 12,60,112) WAS PAID B Y THEM TO M/S. MASTER FILE CORPORATION AND WAS RECOVE RED FROM ITS INDIAN COUNTER PART I.E., THE ASSESSEE HER EIN. IT IS 16 STATED THAT THIS AGREEMENT WAS FINALIZED AND ENTERE D INTO ON 15 TH APRIL, 2010 AFTER THE END OF THE F.Y. 2009-10 AND THEREFORE, IT DOES NOT RELATE TO THE F.Y. 2009-2010 . THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE A.O. HA D DISALLOWED AN AMOUNT OF RS.12,60,112 ON ACCOUNT OF COPYRIGHT INFRINGEMENT SETTLEMENT EXPENSES WITHOUT GIVING ANY OPPORTUNITY OF HEARING OR SUBMISSION OF INFORMA TION BY THE ASSESSEE TO EXPLAIN THE BACKGROUND OF THESE EXPENSES. HE HAS SUBMITTED THAT EVEN THE DRP HAS REJECTED THE PLEA OF THE ASSESSEE. IT IS FURTHER SU BMITTED THAT SUBSEQUENT TO THE ORDER OF THE DRP, THE ASSESS EE, IN ITS SUBMISSIONS TO THE A.O. DATED 22 ND DECEMBER, 2014 REQUESTED FOR DEDUCTING AN AMOUNT OF RS.12,60,112 INCURRED TOWARDS COPYRIGHT INFRINGEMENT SETTLEMENT FROM THE OPERATING COST OF THE TRANSACTIONS WITH ITS A. E. FOR DETERMINATION OF ALP IN HIS FINAL ORDER. BUT A.O. H AS REJECTED THE ASSESSEES CONTENTION WITHOUT GIVING A NY REASON OR OPPORTUNITY OF HEARING. IT WAS SUBMITTED BY THE LD. COUNSEL FOR THE ASSESSEE, THAT THE LIABILITY OF AVINEON INDIA WAS NEVER AGREED ON 31 ST MARCH, 2010 AND THEREBY, THIS WAS NEVER THE EXPENDITURE OF THE ASSESSEE FOR THE RELEVANT FINANCIAL YEAR AND THEREFORE, THE ASSESSEE SHOULD NOT HAVE RECOGNISED THESE EXPENSES IN ITS BOOKS IN THE FIRST PLACE AND WITHOUT PREJUDICE TO THE ABOVE, IT WAS ALSO SUBMITTED THAT COPYRIGHT INFRINGEMENT SETTLEMENT EXPENSES PAID TO ITS A.E. IS TO BE TREATED AS AN EXTRAORDINARY EXPENDITURE AND CANNOT BE PART OF OPE RATING COST OF THE ENTERPRISE AS SUCH EXPENSES ARE BEYOND OR OUT OF COMMON APPREHENSION AND ARE NOT USUAL, REGULAR O R OF 17 CUSTOMARY KIND. IN SUPPORT OF ITS CONTENTION THAT S UCH EXPENDITURE DO NOT FORM PART OF THE OPERATING EXPEN SES, LD. COUNSEL FOR THE ASSESSEE HAS PLACED RELIANCE UP ON THE FOLLOWING DECISIONS OF THE TRIBUNAL (1) ITAT BANGALORE TRIBUNAL ORDER IN THE CASE OF CAPITAL ONE SERVICES INDIA P. LTD., VS., DCIT [TS- 214-ITAT-2015-(BANG)-T.P.] (2) ITAT DELHI TRIBUNAL ORDER IN THE CASE OF DCIT VS. EXXON MOBIL GAS (INDIA) P. LTD., [TS-374-ITAT- 2014-(DEL)-T.P.] (3) ITAT HYDERABAD TRIBUNAL IN THE CASE OF MYLAN LABORATORIES LTD., VS. ADDL. CIT [ (2014) 46 TAXMANN.COM 76 (HYDERABAD-TRIB.) ]. 12. LD. D.R. ON THE OTHER HAND, SUBMITTED THAT THE ASSESSEE HAS RAISED THIS ISSUE FOR THE FIRST TIME B EFORE THE A.O. AFTER THE DIRECTIONS OF THE DRP AND THE A.O. B EING BOUND BY THE DIRECTIONS OF THE DRP HAS NOT CONSIDER ED THIS ISSUE. HE HAS SUBMITTED THAT FRESH CLAIM OF TH E ASSESSEE BEFORE THE A.O. AFTER TPO ORDER AS WELL AS THE DIRECTIONS OF THE DRP CANNOT BE ENTERTAINED AT THIS STAGE. 13. HAVING REGARD TO THE RIVAL CONTENTIONS AND THE MATERIAL ON RECORD, WE FIND THAT ALL THE FACTS RELA TING TO THE ISSUE ARE NOT ON RECORD I.E., WHETHER THE INFRI NGEMENT OF THE COPYRIGHT IS WITH REGARD TO THE INTERNATIONA L TRANSACTIONS AND WHETHER IT FORMS PART OF OPERATING EXPENDITURE OR NOT. THEREFORE, IT IS TO BE FACTUALL Y VERIFIED BY THE TPO/AO. UNLESS IT IS FOUND TO BE NOT RELATIN G TO THE NORMAL BUSINESS OPERATIONS OF THE ASSESSEE COMPANY, IT 18 CANNOT BE DIRECTED TO BE EXCLUDED FROM THE OPERATIN G EXPENDITURE OF THE ASSESSEE. FURTHER, ASSESSEES CONTENTION THAT IT DOES NOT RELATE TO THE RELEVANT FINANCIAL YEAR IS ALSO TO BE VERIFIED BY THE A.O. IN VIEW OF THE SAME, WE DEEM IT FIT AND PROPER TO REMIT THIS ISSUE TO TH E FILE OF THE TPO FOR RE-DETERMINATION AS TO WHETHER IT FORMS PART OF THE OPERATING EXPENDITURE OF THE ASSESSEE. NEEDL ESS TO MENTION, THE ASSESSEE SHALL BE GIVEN A FAIR OPPORTU NITY OF HEARING. ACCORDINGLY, GROUND NOS. 2 AND 3 OF THE AS SESSEE ARE TREATED AS ALLOWED FOR STATISTICAL PURPOSES. 14. AS REGARDS GROUND NO.4 SEEKING INCLUSION OF TWO COMPANIES ICRA ONLINE AND TERRITORY SERVICES LT D., AS COMPARABLES TO THAT OF THE ASSESSEE COMPANY, THE LD. COUNSEL FOR THE ASSESSEE, HAS DRAWN OUR ATTENTION T O THE SUBMISSIONS OF THE ASSESSEE BEFORE THE TPO AND AS T O WHY THE TPO HAS REJECTED THESE COMPANIES. HE HAS ALSO D RAWN OUR ATTENTION TO THE FACTUAL INCONSISTENCIES IN THE FINDINGS OF THE TPO AGAINST THESE TWO COMPANIES. CONSIDERING THE SAME, WE REMIT THE ISSUE TO THE FILE OF TPO FOR RECONSIDERATION AS TO WHETHER THESE FACTUAL INCONSISTENCIES DO EXIST AND AFTER VERIFICATION OF THE SAID DETAILS, THE TPO MAY TAKE A DECISION IN ACCORDANCE WITH LAW. GROUND NO.4 OF THE ASSESSEE IS TREATED AS ALLO WED FOR STATISTICAL PURPOSES. 15. AS REGARDS GROUND NO.5 REGARDING LOYALTY REWARDS, BRIEF FACTS ARE THAT THE COMPANY HAD MADE A PROVISION OF RS.86,25,630 FOR LOYALTY REWARDS PAYAB LE TO 19 ITS EMPLOYEES. THE A.O. PROCEEDED TO DISALLOW THE S AME UNDER SECTION 43B OF THE I.T. ACT TO AN EXTENT OF RS.3,00,538 AFTER CONSIDERING THAT RS.83,25,920 WAS ACTUALLY PAID ON OR BEFORE THE DUE DATE OF FILING T HE RETURN. IT WAS SUBMITTED BY THE LD. COUNSEL FOR THE ASSESSE E THAT SECTION 43B READ WITH SECTION 36(1)(II) REFERS TO A NY SUM PAID TO AN EMPLOYEE AS STATUTORY BONUS OR COMMISSIO N, WHEREAS, LOYALTY REWARDS PAID BY THE ASSESSEE IS TO REWARD HIS EMPLOYEE WHO COMPLETES CERTAIN PERIOD OF WORK W ITH THE COMPANY AND THEREFORE, IT CANNOT BE EQUATED TO BONUS OR COMMISSION REFERRED TO IN SECTION 36(1)(II) AND THEREFORE, THE DISALLOWANCE OF RS.3,00,538 IS TO BE DELETED. ASSESSEE PLACED RELIANCE UPON THE JUDGMENTS OF THE HONBLE DELHI HIGH COURT IN THE CASE OF SHRI RAM PI STONS & RINGS LTD., VS. CIT 307 ITR 363 (DEL.) AND SHEFFI ELD AND VERMARK CONSULTANTS P. LTD., VS. ITO [ ITA.NO.9/DEL/2013), IN SUPPORT OF HIS CONTENTION. 16. LD. D.R. SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 17. UPON CONSIDERATION OF THE RIVAL CONTENTIONS AND THE MATERIAL ON RECORD, WE FIND THAT THE LOYALT Y REWARDS DO NOT FALL IN THE SAME CATEGORY AS BONUS A ND COMMISSION AS ENVISAGED UNDER SECTION 36(1)(II) OF THE ACT. THEREFORE, RESPECTFULLY FOLLOWING THE JUDGMENT OF THE HONBLE DELHI HIGH COURT IN THE CASE OF SRI RAM LTD .. VS. CIT (SUPRA), WE DIRECT THE A.O. THE ALLOW THIS EXPE NDITURE. 20 GROUND NO.5 OF THE ASSESSEE IS ALLOWED AND GROUND N O.7 OF THE REVENUE IS DISMISSED. ITA.NO.262/HYD/2015 - REVENUE APPEAL : 18. COMING TO GROUND NO.8 OF THE REVENUES APPEAL WHICH IS AGAINST THE DIRECTION OF THE DRP TO REDUCE THE TELECOMMUNICATION CHARGES FROM BOTH THE EXPORT TURNOVER AS WELL AS TOTAL TURNOVER FOR THE PURPOSE OF COMPUTATION OF DEDUCTION UNDER SECTION 10A OF THE I .T. ACT, WE FIND THAT THIS ISSUE IS COVERED IN FAVOUR O F THE ASSESSEE BY THE DECISION OF THE HONBLE KARNATAKA H IGH COURT IN THE CASE OF CIT & ANOTHER VS. TATA ELXSI ( 2012) 349 ITR 98 (KARNATAKA) (HC). WE FIND THAT THE DRP H AS FOLLOWED THE DECISION OF THE COORDINATE BENCH OF TH IS TRIBUNAL WHEREIN SIMILAR DECISION HAS BEEN TAKEN. THEREFORE, WE DO NOT SEE ANY REASON TO INTERFERE WI TH THE FINAL ASSESSMENT ORDER ON THIS ISSUE PASSED IN ACCO RDANCE WITH THE DIRECTIONS OF THE DRP. ACCORDINGLY, GROUND NO.8 OF THE REVENUE IS REJECTED. 19. IN THE RESULT, ITA.NO.152/HYD/2015 OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES AND ITA.NO.262/HYD/2015 OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 20.01.2016. SD/- SD/- (S. RIFAUR RAHMAN) (SMT. P. MADHAVI DEVI) ACOUNTANT MEMBER JUDICIAL MEMBER HYDERABAD, DATED 20 TH JANUARY, 2016 VBP/- 21 COPY TO : 1. M/S. AVINEON INDIA P. LTD., CYBER GATEWAY, BLOCK - A, 1 ST FLOOR, HITEC CITY, MADHAPUR, HYDERABAD 081. 2. THE DCIT, CIRCLE - 1(1), HYDERABAD. 3. THE DISPUTES RESOLUTION PANEL /CIT (TRANSFER PRICING) , CHENNAI & MEMBER DRP, HYDERABAD. 4. CIT(INTERNATIONAL TAXATION), I.T. TOWERS, 10 - 2 - 3, A.C. GUARDS, HYDERABAD. 5. CIT (TRANSFER PRICING) - II, 3 RD FLOOR, D BLOCK, I.T. TOWERS, A.C. GUARDS, HYDERABAD 500 004. 6 . CIT - 1, AAYAKAR BHAVAN, HYDERABAD. 7 . D.R. ITAT B BENCH, HYDERABAD. 8 . GUARD FILE