Agilis Information Technologies Interntional Pvt. Ltd. v. Ito

Suchitra Kamble, J.M:— This appeal has been filed by the assessee against the Assessment Order dated 27/01/2016 passed by ITO, Ward-1(4), New Delhi u/s 143(3) read with Section 144C of Income Tax Act, 1961 in Assessment Year 2011-12.

2. Agilis Information Technologies International (I) Ltd. is established in India to undertake software development and installation of computerized systems, conduct feasibility studies, systems analysis and design as well as design of special software and system and application of software. It is also engaged in the business of rendering technical services related to tabulation, coding and software development. It is established to undertake and engaged in export of software, computer skilled manpower and other computer related activities to carry out development in the area of information technology, computer systems, software, application software, integrated tolls for computer systems and application development, data communication and network. The international transaction was software development and support services for Rs. 14,31,12,709/-. The assessee used TNMM as the method and OP/TC as the PLI. The assessee arrived at a set of 23 companies with an average margin of 7.64%. The assessee has used multiple year data. The assessee's own margin is worked out to be 7.99%. Based on this analysis, the assessee concluded that its international transactions are at arm's length. A show cause notice dated 05.12.2014 was issued to the assessee. The assessee made reply dated 17.12.2014 in responses to the show cause notice and the personal hearing was conducted on the same day. The TPO rejected the objections raised by the Assessee by rejecting the economic analysis of the assessee. Foreign exchange fluctuation was also treated as non operating income of the taxpayer and also in the case of comparables by the TPO.

3. The TPO applied the following quantitative and qualitative filters for the purpose of benchmarking analysis.

(i) Use of current year data

(ii) Companies having different financial year ending were rejected

(iii) Companies having sales less than 5 crores were rejected

(iv) Companies undertaking significantly different functions compared to applicant

(v) Income from export sales at least 75% of the total sales from Software Development services income

(vi) Companies having service income at-least 75% to total operating income

(vii) Companies having employee cost to operating cost ratio more than 25% were selected

(viii) Companies having RPT more than 25% of total sales were rejected

(ix) Companies incurring persistent losses for the last three years upto and including FY 2010-11 were rejected

(x) Companies that are affected by some peculiar economic circumstances

4. Accordingly, the TPO arrived at the following comparable companies with an average operating profit to operation cost ratio of 28.52%.

S. No. Company Name OP/OC% 1 Persistent Systems and Solutions Ltd. 22.12 2 Larsen & Turbo Infotech Ltd. 18.40 3 Persistent Systems Ltd. 23.08 4 Sasken Communication Technologies Ltd. 24.36 5 Zylog Systems Ltd. 28.74 6 Wipro Technologies Ltd. (Wipro Technologies Services Ltd.) 54.42 Average Margin 28.52

5. The TPO made an adjustment of Rs. 2,72,60,794/- on account of the difference in the arm's length price of the international transaction of provision of software development services, as under:—

Operation Cost 1,32,565,751 Arm's length price at a margin of 28.52% 170,373,503 Price received 143,112,709 105% of the price received 131,269,898 Proposed Adjustment u/s 92CA 27,260,794

6. The adjustment made by the TPO/A.O was upheld by the DRP vide order dated 07/12/2015.

7. The Ld. AR submits that the assessee is praying for exclusion of following comparables:

(1) Wipro Technologies Ltd. (Wipro Technologies Services Ltd.)

(2) Zylog Systems Ltd.

(3) Persistent Systems and Solutions Ltd.

(4) Sasken Communication Technologies Ltd.

(5) Larsen & Turbo Infotech Ltd.

(6) Persistent Systems Ltd.

8. Wipro Technologies Limited (Wipro Technologies Services Ltd.)

9. The Ld. AR submitted that this comparable is not functionally identical with the assessee company. Company is engaged in providing program management, third party data security, quality assurance and business process management services. The company is a software product company. Company in year 2012 has launched its product in the name of ‘FLoW’ for the retail sector users. Wipro Technology Services Ltd., which was earlier Citi Technology Services Ltd., was held by Citi Corp. Banking Corporation, USA upto 20 January, 2009. Wipro Ltd., parent company of the assessee, executed an agreement with Citi Group Inc., for acquiring Citi Technology Services Ltd., now called Wipro Technology Services Ltd. On 21.1.2009, Wipro Ltd. signed a master agreement with Citi Group Inc., for the delivery of technology Infrastructure Services and application development and maintenance services for the period of six years, which also includes the year under consideration. This shows that income from software development support and maintenance services was earned by Wipro Technology Services Ltd., from Citi Group Inc., by means of master service agreement entered into between Wipro Ltd., its parent company and Citi Group Inc., a third person. The Ld. AR relied on the decision of Hon'ble Delhi Bench of the Tribunal in the case of Pitney Bowes Software India Pvt. Ltd. v. ITO (ITA No. 7066.Del/14), wherein it was held as under:

“14. So far as WIPRO Technology Services Ltd. is concerned, learned TPO included this company in the final set of comparables with an opening profit margin of 73.35%. The objection of the assessee remained that the information related to the related parties transactions is not available in the annual report of the company as available in public domain. Accordingly, the filter of related party transactions as proposed by the learned TPO cannot be applied. It was further contended that as per the information available on public domain, the company is engaged in providing program management, third party data security, quality assurance and business process management services. It was submitted that substantial business of the company is concentrated in financial and banking sector, also being formerly known as CITI Technologies Services Ltd. It was contended further that it has no where been reported that the company is engaged in provisions of software development services. Several decisions have been cited by the Ld. AR including the decision of delhi Bench of the ITAT in the case of Sapient Corporation Pvt. Ltd. v. DCIT (Supra), Cincon System India Pvt. Ltd. v. ACIT (Supra). Toluna India Pvt. Ltd v. ACIT (Supra) and Lear Automotive India Pvt. Ltd v. ACIT *(Supra) in support of his contention that the companies are engaged in the business of selling software products and thus is not comparable for the purpose of benchmarking companies engaged in software development services. Respectfully following the decision of Co-ordinate Benches of the ITAT, we hold that WIPRO Technology Services Ltd. has been wrongly included by the Assessing Officer in the case of the present assesse as comparables for the purpose of benchmarking the international transaction.”

10. The Ld. DR submitted that the company is functionally comparable as set out in the order of the TPO. The Ld. DR submitted that the upper limit turnover filter is not applicable in the case of the assessee. This company is involved in Software Development activities and passes all the filters also.

11. We have heard both the parties and perused the records. This Company is engaged in providing program management, third party data security, quality assurance and business process management services. The company is a software product company. Company in year 2012 has launched its product in the name of ‘FLoW’ for the retail sector users. But the assessee company is not a software product company, it is undertaking software development and installation of computerized systems, conduct studies, systems analysis and design as well as design of special software and system and application of software. The assessee is also engaged in rendering technical services related to tabulation, coding and software development as well as export of software and other computer related activities to carry out development in the area of information technology. There is difference between software product and undertaking software development. A product is outcome of research and development but a development is one stage prior to product. Development might sometime stop at the research stage to offer solutions to Information Technology Industries' problems. In assessee's case it is undertaking software development which is more of an event constituting a new stage in a changing situation, than a complete product. Therefore, WIPRO Technologies Ltd. is functionally different from the assessee company and should have been excluded by the TPO. We therefore, direct TPO to exclude this comparable.

12. Zylog Systems Ltd.

13. The Ld. AR submitted that extra-Ordinary event occurred during the year as the company has acquired M/s. Brainhunter Inc, Canada. The Ld. AR relied on the following decisions, wherein the various benches of Tribunal have consistently taken a view to exclude companies having extra-ordinary event during the year under consideration. The Ld. AR relied on the following decisions of Tribunals:

• Cognizant Technology Services Pvt. Ltd. v. ACIT (ITA No. 2106 & 1864.Hyd./2011)

• Capital IQ Information Systems (India) Pvt. Ltd. (ITA No. 1961.Hyd/2011)

• Stream International (ITA No. 8997.Mum/2010)

• CRM Services ITA No. 4068.Del/2009

• Market Tools Research Pvt. Ltd. v. DCIT (ITA No. 1811.Hyd/2012)

• Intoto Software India Pvt. Ltd. v. ACIT (ITA No. 1196.Hyd/2010)

• NTT Data India Enterprise v. ACIT (ITA No. 1612.Hyd/2010)

• Calibrated Healthcare Systems India Pvt. Ltd. v. ACIT

• Toluna India Pvt. Ltd. v. ACIT (ITA No. 5645.Del/2011)

• Lear Automotive India P. Ltd. v. ACIT (ITA No. 5612.Del/2011) and

• Global Logic India Pvt. Ltd. v. ACIT (ITA No. 5809.Del/2011)

14. The Ld. AR further submitted that the segmental data was not available for the assessment year under question. The company is earning revenue from two business segments, namely, software services and software products. However, segmental data with respect to the aforesaid two segments is not available in the financial statement. The Ld. AR relied upon the following decisions, wherein, the Tribunal directed to exclude a company on account of non-availability of segmental data:

i. Vodafone India Services v. DCIT ((ITA no. 7140 & 7097.Mum/2012)

ii. Macquarie Global Services (P.) Ltd. (ITA 6803.Delhi/2013)

15. The Ld. DR submitted that the company is functionally comparable as set out in the order of the TPO. The Ld. DR submitted that the upper limit turnover filter is not applicable in the case of the assessee. This company is involved in Software Development activities and passes all the filters also.

16. We have heard both the parties and perused the records. The segmental data was not available for the assessment year under question of this company. The company is earning revenue from two business segments, namely, software services and software products. However, separate segmental data with respect to the aforesaid two segments is not available in the financial statement. The assessee company cannot be compare with this company as there is not segmental data available. Besides, this there was extra-ordinary events occurred during the year as the company has acquired M/s. Brainhunter Inc., Canada. Thus, as held by this Tribunal in various decisions companies having extra-ordinary event has to be excluded.

17. Therefore, we direct TPO to exclude this company from comparables.

18. Persistent Systems & Solutions Ltd.

19. The Ld. AR submitted that the company is “functionally not comparable because of the incomparable financial results arising out of the exceptional circumstances in the financial year ending on 31 March, 2011. The Ld. AR submitted that the company is earning abnormal profits during the Financial Year 2010-11 on the basis of below facts:

Year 2009 2010 2011 Net Profit 83,58,124 70,40,403 2,44,02,141 Sales (In crores) 3.52 6.70 19

20. During the year ending 2011, the turnover of the company increased by 184%, i.e from Rs. 6,67,28,828 to Rs. 18,94,90,457 from the preceding year. Further, the net profit of the company increased by 247%, i.e, from Rs. 70,40,403 to Rs. 2,44,02,141. The Ld. AR relied upon the recent decision of Delhi Bench of the Tribunal in the case of ACIT v. Transcent MT services Pvt. Ltd. (ITA No. 2148.Del/2013), wherein, the Tribunal directed to exclude a company on account of abnormal year of operation:

“12. We have perused all the records and taken into consideration the contentions of the parties as relates to Revenue's appeal the same is only on the issue that exclusion of Mold-Tek Technologies Ltd. as comparable by the CIT(A) is not just and proper but when we take into account, the special Bench Judgment in case of Mold-Tek Global Centre India Pvt. Ltd. it can clearly be taken into account that the company grew with a compounded annual growth rate (CAGR) of 147% for 3 years which is evident from the chart given in the impugned order of the Ld.CIT(A) and on the basis of the said chart, CIT(A) has rightly rejected Mold-Tek as comparable company due to the consistently abnormal profits earned by the company. The CIT(A) by deciding this issue has studied annual report of the company and found that there were several irregularities in the financial statements. When we look into all these aspect, we find that the CIT(A) was correct in excluding Mold-Tek Technologies Ltd. as comparable and hence the Revenue is not proper in harping that Mold-Tek has to be taken into account as a comparable in TP study. As regards to the Cross-objection of the assessee is concerned the Ld. A.R during the course of hearing stated that the same may be treated as not pressed if the appeal of the Department is dismissed. Since in the former part of the order, we have dismissed the appeal of the Departmetn, the Cross Objection of the assessee which mainly supports the impugned order of the CIT(A) is dismissed as not pressed.”

21. The Ld. AR also relied on the following decisions of various Benches of the Tribunal wherein company having high profits due to abnormal reasons was directed to be excluded from the final set of comparable companies:—

• Maersk Global Centre India Pvt. Ltd. v. ACIT (ITA No. 7466.Mum/2012)

• Bind view India Pvt. Ltd. v. DCIT: ITA No. 1501.PN/2011

• Sap Labs India Pvt. Ltd. v. ACIT (ITA no 418.Bang/2008)

• Adobe Software India Pvt. Ltd. v. Addl. CIT (ITA No 4061.Del/2010)

• Quark System v. DCIT - ITA No. 100.CHD/2009

• Frost and Sullivan India Pvt. Ltd. - ITA No. 2073.Mum/2010

• Mentor Graphics (Noida) Pvt Ltd. v. DCIT (ITA no 1969.D/2006)

• Sapient Corporation Pvt. Ltd. v. DCIT (ITA No 5263.Del/2010)

• ACIT v. NIT Limited (ITA No. 1844.Del/2009

• Symantec Software Solutions Pvt. Ltd. v. ACIT

22. The Ld. DR relied upon the order of the TPO and the DRP.

23. We have heard both the parties and perused the records. The company is functionally not comparable because of the incomparable financial results arising out of the exceptional circumstances in the financial year ending on 31 March, 2011 as pointed out by the Ld. AR. The Ld. DR could not refute the submissions of the Ld. AR as the documents/TP Study reveals the same on record. In fact, the company is earning abnormal profits during the Financial Year 2010-11. Therefore, this company is not comparable with the assessee company. Thus, we direct TPO to exclude this company as comparable.

24. Sasken Communication Technologies Ltd.

25. The Ld. AR submitted that as regards this company there is non-availability of data wise information of segments with respect to software development services in the annual report. The Ld. AR relied upon the case of Saxo India Pvt. Ltd. v. ACIT (ITA No. 6148.del/2015) whereby Tribunal directed to exclude the aforesaid company on account of unavailability of segmental data with respect to software development segment, as under:—

“15.2 Considering the rival submissions, we find from page 58 of the TPO's order that he has recognized sale of software products to the tune of Rs. 37 crore and odd. Though the break-up of revenue from software services products is available, but, the break-up of operating costs and revenues from these two segments have not been given. It is further observed that the TPO has taken entity level figures for the purposes of making comparison. Since such entity level figures contain revenue from both software services and software products, as against the assessee only providing software services, we are disinclined to treat this company as comparable. The assessee's contention is accepted on this issue.”

26. The Ld. AR also relied upon the decision of Delhi Bench of the Tribunal in the case of Motorola Solutions India Private Limited v. ACIT (ITA 5637.Del/2011), wherein, the company was rejected on account of significant intangibles in the form of ‘Sasken Branded products’ and exceptional year of operation, the relevant extract of which is reproduced as under:

“We have considered the rival submissions and have perused the record of the case.

The TPO has completely ignored the extraordinary business circumstances pointed out by assessee for which necessary adjustment was required to be made in accordance with Rule 10B(3) of Income Tax Rules. However, since this adjustment was not possible, therefore, this company should not have been included in the list of comparables. Further, we find that the company owns IPR and has branded products which also distinguishes it from the assessee and, therefore, keeping in view the decision of Hon'ble Delhi High Court in the case of Agnity India Technologies Pvt. Ltd. (supra), we direct the Id. TPO to exclude this comparable from the list of comparables.”

27. The Ld. DR relied upon the order of the TPO and the DRP.

28. We have heard both the parties and perused the records. The findings and reasoning given in Tribunal's orders in case of Saxo India Pvt. Ltd. v. ACIT (ITA No. 6148.del/2015) and Motorola Solutions India Private Limited v. ACIT (ITA 5637.Del/2011) are applicable to assessee's case. This company is having extra-ordinary business circumstances during the year as well as there is no segmental bifurcation as relates to software services and software product available. Therefore, this company should be excluded from the comparables. Thus, we direct the TPO to exclude this comparable.

29. Larsesn & Turbo Infotech Ltd.

30. The Ld. AR submitted that this company is engaged in two business segments, namely, software development services and software products. However, segmental data with respect to business segment is not available in the annual report of the company. From the audited financial statement and website, it is evident that the company is earning revenue from two business segments, viz., software development and software product. The Ld. AR relied upon the decision of Delhi Bench of the Tribunal in the case of Saxo India Pvt. Ltd. v. ACIT (ITA No. 6148.Del/2015), wherein, L&T Infotech Ltd. was directed to be excluded holding that the company is also engaged in business of software product and segmental information is not available. Relevant extract of the order is reproduced as under:

“12.2 Having regard to the rival submissions and perusal of the relevant material on record, we find from the Annual report of this company, which is available in the third paper book that its Profit and loss account shows “Revenue - Revenue software development services and products”. Profit and loss account of this company having a list of software development expenses contains an item ‘Cost of bought-out items for re-sale’ with a value of Rs. 25.55 crore. Apart from that, the balance-sheet of this company shows certain ‘Software’ in its Schedule of fixed assets under the head ‘Intangible assets’. The above facts conclusively prove that this company is also engaged in the sale of Products apart from rendering software development services. Adopting the same reasons as given for the exclusion of Einfochips Ltd., we order for the exclusion of this company as well.”

31. The Ld. DR relied upon the orders of the TPO and DRP

32. We have heard both the parties and perused the material available on record. This company is engaged in two business segments, namely, software development services and software products. However, segmental data with respect to business segment is not available in the annual report of the company. From the audited financial statement and website, it is evident that the company is earning revenue from two business segments, viz., software development and software product. Therefore, this company should be excluded from the comparables. Thus, we direct the TPO to exclude this comparable.

33. Persistent Systems Ltd.

34. The Ld. AR submitted that the company is engaged in the business of software products such as Paxproj. Thus this company is not comparable. The Ld. AR relied on the various decisions Saxo India Pvt. Ltd. v. ACIT (ITA No. 6148.DeI/2015) as well as the Tribunal specifically held that Persistent Systems Limited is engaged in product development, product design and analysis service is functionally different from a pure software service provider and therefore ought to be excluded:

“14.2 After considering the rival submissions and perusing the relevant material on record, we find from Profit & Loss Account of this company, a copy of which is placed at page 1534 of the paper book, that its income from ‘Sale of software services and Products’ is amounting to Rs. 6101.27 millions. The TPO has himself observed that this company does have some products, but, product revenue is only 7.2% and, hence, this company is predominantly a software service provider. This discussion is contained in para 21.67 of the TPO's order. Even Schedule-11 to the Profit & Loss Account also shows ‘Sale of software services and Products.’ This shows that this company is engaged in both rendering software development services as well as sale of software products. Albeit the percentage of software products in the total revenue is less, as has been noted by the TPO, yet, we are inclined to take it as non-comparable because there is no precise information about the contribution made by such small sale of software products to the total profit of the company. As no segmental information is available in respect of this company and the figures have been adopted by the TPO at entity level, we, therefore, order for the exclusion of this company from the list of comparables.”

35. The Ld. DR relied upon the order of the TPO and DRP

36. We have heard both the parties and perused the material available on record. Persistent Systems Limited is engaged in product development, product design and analysis service is functionally different from a pure software service provider and therefore ought to be excluded. Thus, this company is functionally different from that of assessee company. Therefore, this company should be excluded from the comparables. Thus, we direct the TPO to exclude this comparable.

37. The Ld. AR submitted that CAT Technologies Ltd., CG-VAK Softwae & Exports Ltd. and Chakkilam Infotech Ltd. should have been included as comparable which was rejected by the TPO as these companies are functionally comparable with the assessee company. After undertaking the aforesaid analysis, the average operating profit to cost ratio of the remaining companies works out to 2.25%, as under:

S. No. Company Name OP/OC (%) 1 Cat Technologies Ltd. 1.90% 2 CG-VAK Software & Exports Ltd. -2.28% 3 Chakkilam Infotech Ltd. 7.13% Average 2.25%

38. Since, the operating profit margin of the assessee company at 7.99% is higher than the average operating profit margin of the final comparable companies at 2.25%, therefore, the international transaction of provision of software development services undertaken by the assessee ought to be considered to be at arm's length price.

39. CAT Technologies Ltd.

40. The Ld. AR submitted that as per the website ‘S’ and annual report, the company is engaged in the business of providing software development services to its customer. The TPO wrongly rejected the company in the show cause notice holding that it is engaged in ITES business.

41. The Ld. DR submitted that the TPO has rightly rejected this comparable as the functional profile of the company is different from that of the assessee company.

42. We have heard both the parties and perused the records. From the Annual Report of this company it is clearly offering technology products and services which is set out in outlook of the company. The records do not give the segmental breakups of the software service and software products. Therefore, this company is not fulfilling the criteria of the comparable for Arms' Length Price. Thus, we reject this company as comparable.

43. CG-VAK Software & Exports Limited

44. Ld. AR submitted that the company is engaged in business segments, namely, software services and BPO services. Segmental details with respect to these two segments are also available in the audited financial statement. The company's employee cost to total cost ratio during the relevant previous year works out to 69.45% which satisfies employee cost filter.

45. The Ld. DR submitted that the DRP held that there is decline in the profitability of the company. The company is not showing employee cost as separate head of expenses and is included in cost of services.

46. We have heard both the parties and perused the records. The Annual Report of the company clearly sets that this company is dealing with software Development, Product & Services and there is no segmental data available for software development, product and services. Thus, the company is not only functionally different but also segmental data is not available. Therefore, this company is not fulfilling the criteria of the comparable for Arms' Length Price. Thus, we reject this company as comparable.

47. Chakkilam Infotech Limited

48. The Ld. AR submitted that the company is engaged in the business of providing software development services and accordingly, functionally comparable to the assessee company. There is audited financial statement is also available for this company.

49. The Ld. DR submitted that the TPO rightly rejected this as comparable because there is non-availability of the data.

50. We have heard both the parties and perused the records. The Annual Report of the company clearly sets that this company is dealing with software testing, software Development services and Healthcare services and there is no separate segmental data available for software development services. Thus, the company is not only functionally different but also segmental data is not available. Therefore, this company is not fulfilling the criteria of the comparable for Arms' Length Price. Thus, we reject this company as comparable.

51. We have heard both the parties and perused the material available on record. Ground No. 1 is general therefore, the same is not adjudicated. Ground No. 2, 2.1, 2.2, 2.3, 2.4 and 2.5 are relating to exclusion and inclusions of the comparables by the TPO. The exclusion and inclusions of the comparables given by the Ld. AR are functionally different than assessee company, in some cases there is no segmental data available for software development services as well as there are certain extra-ordinary events occurred during the year in some of the comparables. The reasons for each comparables are given hereinabove paras. Thus, all the comparables are excluded by us. Therefore, there remains no comparable for TP study. Hence, the matter is remanded back to Assessing Officer/TPO to decide afresh by giving new set of comparables which are functionally similar to the Assessee company and the segmental data including other filters of the TPO are met with. Needless to say, the assessee will provide the new set of comparables which will be verified by the TPO and thereafter adjudicate the issues at length. Thus, Ground No. 2, 2.1, 2.2, 2.3, 2.4 and 2.5 are partly allowed for statistical purpose. As relates Ground No. 3, the same is consequential, since the matter is remanded back to the file of TPO/AO, the same do not require adjudication and be decided by the TPO/AO.

52. In result, the appeal of the assessee is partly allowed for statistical purposes.

53. Order pronounced in the Open Court on 13 November, 2017.

Date 1. Draft dictated on 28/08/2017 PS 2. Draft placed before author 28/08/2017 PS 3. Draft proposed & placed before the second member .2017 JM/AM 4. Draft discussed/approved by Second Member. JM/AM 5. Approved Draft comes to the Sr. PS/PS PS/PS 13.11.2017 6. Kept for pronouncement on PS 7. File sent to the Bench Clerk 13.11.2017 PS 8. Date on which file goes to the AR 9. Date on which file goes to the Head Clerk. 10. Date of dispatch of Order.