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14. The learned AO and the learned DRP have erred in law and on facts in upholding the actions of the TPO by including Capgemini Business Services (India) Ltd. as a comparable to the Appellant on the ground that it passes all the filters applied by the learned TPO, whereas this company should have been excluded on the grounds that it fails the RPT/ Sales filter applied by the learned TPO.

15. The learned AO and the learned DRP have erred in law and on facts in upholding the actions of the TPO by including Infosys BPO Ltd. as a comparable to the Appellant on the ground that it is functionally comparable and passes all filters applied by the learned TPO, whereas this company should have been excluded on the grounds that it is functionally dissimilar to the Appellant and operates under different business model where it carries out subcontracting activity.

5. In respect of ITES segment, it was submitted by ld. AR of assessee that the assessee company selected 9 comparables with arithmetic mean margin of 13.52% and the TPO also selected 9 comparables but only two comparables were common i.e. Infosys BPO Ltd. and Jindal Intellicom Ltd. and as per the TPO's working, mark-up of total cost after adjustment was worked out at 22.27% and the TPO made adjustment of Rs. 4,76,15,547/-. Thereafter, he submitted that when the assessee carried the matter in appeal before the DRP, the DRP selected 7 comparables after excluding two comparables i.e. Acropetal Technologies Ltd. and Tech Mahindra Ltd. (seg.). Now the assessee is requesting for exclusion of Capgemini Business Services (India) Ltd. as per ground no. 14 and exclusion of Infosys BPO Ltd. as per ground no. 15 and exclusion of Hartron Communications Ltd. as per ground no. 16. In respect of these three exclusions, the arguments of the ld. AR of assessee are contained in para no. D(i) to (iii) of synopsis of arguments and the same are reproduced hereinbelow.

"D. APPELLANT'S SUBMISSIONS ON THE ITS APPEAL:
(i) Ground No.14:
In this ground, the Assessee is seeking the exclusion of Capgemini Business Services (India) Ltd. ('Capgemini' for short) from the final list of comparables to the Appellant's ITE service segment as it fails the RPT filter applied by the TPO.
In this regard, it is submitted that Capgemini has substantial RPT amounting to 82.32% of its total sales for the financial year 2012-

13. Now we examine the assessee's request for exclusion of Capgemini Business Services (India) Ltd. Regarding this company, it has been stated that RPT% of this company is 82.32% and in this regard, our attention was drawn to page 140 of paper book. We find that on page no. 140 of the paper book is part of objections filed before DRP in form 35A against the draft assessment order. It has been submitted before DRP that Capgemini Business Services (India) Ltd. has substantial related party transactions to the extent of 82.32% for FY 2012-13 as emanating from the Annual Report for FY 2013-14 available in the public domain. Annual Report of this company i.e. Capgemini Business Services (India) Ltd. for the Financial Year 2013-14 is available on pages 1087 to 1268 of Annual Report paper book. It has been submitted that on page nos. 17 and 18 of the DRP directions, this is noted by DRP that as per the assessee's claim, the RPT% in case of Capgemini Business Services (India) Ltd. is 82.32%. The finding of DRP in this regard is given on page no. 18 of the DRP directions where it has been stated that this working is obtained from the financials of FY 2013- 14 and this is the new information brought before DRP based on a new data which was not available in the public domain earlier. The DRP has rejected the assessee's contention on this basis that it is not clear why this company has reported the related party transaction in its Annual Report for 2013-14 and the DRP directed the TPO to cross verify this information with the said company and if assessee's claim is found to be correct, then this company may be excluded as a comparable. In this view of the direction of DRP on page no. 18 of the directions of DRP, we are of the considered opinion that IT(TP)A No. 2460/Bang/2017 there is no infirmity in the directions of DRP on this issue and therefore, ground no. 14 has no merit. The same is rejected.