ITAT Delhi Rules in Favour of IQOR India Services: Transfer Pricing Comparables and Forex Treatment Settled for AY 2012-13

Overview of the Case

The Income Tax Appellate Tribunal, Delhi Bench, delivered its ruling in DCIT Vs IQOR India Services Pvt. Ltd. (ITA No. 3713/Del./2018) on 14th July 2022, pertaining to Assessment Year 2012-13. The Tribunal disposed of both the Revenue's appeal and the cross objection filed by the assessee, which had originated from the order passed by the CIT(A)-44, New Delhi dated 09.04.2018.

The case revolved around four core disputes: (i) the characterisation of foreign exchange fluctuation gain as operating or non-operating income, and (ii) the exclusion of three companies — Infosys BPO Ltd., e4e Healthcare Services Pvt. Ltd., and TCS E-Serve Ltd. — from the final set of transfer pricing comparables.


Background and Nature of Business

iQor India Services Pvt. Ltd. was incorporated in September 2004 as a wholly-owned subsidiary of iQor US Inc., a New York-based business process outsourcing company offering services such as customer care, receivables management, and revenue recovery. The Indian entity, registered with Software Technology Parks of India and operating as a 100% export-oriented unit, was engaged in providing customer management solutions specialising in collections, accounts receivable management, and customer retention.

For AY 2012-13, the assessee disclosed an international transaction with its Associated Enterprise (AE), iQor Inc. USA, involving provision of IT-Enabled Services (ITES) amounting to Rs. 51,77,39,312/-. The Arm's Length Price (ALP) was determined by applying the Transactional Net Margin Method (TNMM) as the Most Appropriate Method (MAM), with Operating Profit to Operating Cost (OP/OC) as the Profit Level Indicator (PLI).

Assessee's Transfer Pricing Computation

The assessee computed its PLI as follows:

Particulars Amount (Rs.)
Export of Services 5,17,739,312
Foreign Exchange Gain 32,965,323
Total Operating Income (A) 5,50,704,635
Personal Expenses 3,37,109,983
Admin and Other Expenses 1,33,778,613
Less: Bank Charges (2,95,923)
Depreciation 6,87,088
Total Operating Expenditure (B) 4,71,279,761
Operating Profit (C = A - B) 79,424,874
OP/OC (%) 16.85%

The assessee arrived at a set of 7 comparables through a search on public databases, with a weighted average PLI of 12.94%, thereby concluding that its transactions were at arm's length.


Transfer Pricing Officer's Findings

The Transfer Pricing Officer (TPO), upon independent inquiry, recomputed the comparables and arrived at a final set of 8 companies with an average OP/OC of 27.06%:

S. No. Company Name OP/OC
1 Accentia Technologies Ltd. 11.95%
2 Eclerx Services Ltd. 58.40%
3 Informed Technologies India Ltd. 7.62%
4 Infosys BPO Ltd. 36.75%
5 Jindal Intellicom Ltd. -0.05%
6 TCS E-Serve Ltd. 63.69%
7 e4e Healthcare Services Pvt. Ltd. 19.85%
8 Acropetal Technologies Ltd. (Segment) 18.32%

Additionally, the TPO excluded the foreign exchange gain from the assessee's operating income. Based on this revised computation, the TPO vide his order dated 29.01.2016 proposed a transfer pricing adjustment of Rs. 8,10,68,752/-.


Issues Before the Tribunal

Issue 1: Foreign Exchange Fluctuation Gain — Operating or Non-Operating?