He further submitted that the extra ordinary event, viz., acquisition of Portland group Pty Ltd, Australia has taken place in the last quarter of the financial year and hence the said acquisition would not affect FAR analysis. In the case of Pr. Ltd. vs. DCIT [TS-395-ITAT-2012(Bang)], 11) M/s Brigade Global Services Pvt. In respect of acquisition of a new company in Australia by M/s Infosys, the Ld D.R contended that it may not have impact during the year, since the acquisition has taken place in the last quarter of the year. He submitted that the assessee is providing services only to its group companies and hence the effect of “brand value” will not be there. The Court may also note that the Karnataka High Court has in Pr. Foreign Currency Transaction Gain (Loss), before Tax ... For certain enterprises, primarily banks, that are dealers in foreign exchange, foreign currency transaction gains or losses may be disclosed as dealer gains or losses. The issue of comparability of this company was considered by the co-ordinate bench of Tribunal in the case of XLHealth Corpn. What weighed invariably is the fact that both companies had huge turnovers when compared to the tested entity. Dr Debtors, Cr Profit and loss account). MERITS OF TAKING FOREIGN EXCHANGE GAIN/LOSS AS OPERATING. He submitted that all the above said contentions would apply to TCS e-serve Ltd also. The assessee had selected 11 comparable companies in its transfer pricing study. With the expansion of the global economy and diverse influences on exchange rates – such as the current climate of economic uncertainty and fear of terrorism in many countries – foreign exchange risk is likely to be a key consideration for most companies trading across borders in years to come. This method works for direct exchanges, such as when you purchase supplies from a foreign company or a foreign company buys your goods or services. For instance, interest income and expenses aren't included in operating income, ... items of income or loss from foreign exchange impacts also get … Thus, this company is also stated to be a Knowledge Process Outsourcing and therefore for the reasons stated by us while dealing with this issue of comparability of the company Infosys BPO Ltd. shall equally hold good and therefore we direct the AO/TPO to exclude this company from the list of comparables. 11.2 On the other hand, ld. The impact of foreign exchange fluctuation on PLI of the taxpayer is as under: Statistically speaking, about equal number of TP auditees will have forex gain and forex loss. Revenue neither gains nor loses from either of the views, as long as the view is. . Hence taking forex as operating distorts the comparability. The question was whether they offered a reliable basis to re-calibrate the PLI of the Assessee whose scale of operations was of a much lower order than the two impugned comparables. He submitted that this company is engaged in KPO services and there is no difference between KPO and ITES. This potential is referred to as an unrealized gain or loss. 2) M/s. CIT vs. M/s Sanvih Info Group P Ltd (ITA 420/2019 dated 16.05.2019)(Delhi), the Hon’ble Delhi High Court referred “M/s Infosys Ltd” as giant corporation. A detailed Business Continuity Plan has also been put in place to ensure the services are provided to the customers without any disruptions.”. It is wise to make a consistent assumption across the board: between taxpayers, TP auditors, and appellate forums. In most accounting systems the chart of accounts will include an account or nominal code for exchange differences.When you create a customer or supplier, you can select the currency in which they operate (you can change it if it differs from your base currency). The assessee declared net margin of 19.08%. Such wild comparisons may result in the best judgment assessment going haywire and directionless wild, which may land up the findings of the Tribunal in the realm of perversity attracting interference under section 260-A of the Act.”. The nominal gain or loss arising on 31st March each year is mandated by MTM method of accounting. Overall foreign loss. It was held that foreign exchange gain had to be treated as part of the operating profit while computing the profit margin of the assessee as well of the comparable companies. In order to submit a comment to this post, please write this code along with your comment: 95b62bbbee5acf2333eccf69ffaf668d. Illustratively reference may be made to the decision of the Tribunal in Vertex Customer Services India (P.) Ltd. Dy. It is clear that forex is not part of business operations in case of every concern. ), Samsung Heavy Industries India (P.) Ltd. v. Dy. ), iii. Quick links. Step 4 – settlement takes place on 30 April 2017 13. The losses were recorded as a non-operating expense for the first quarter ended June 30, 2016. As far as TCS E Service Ltd., is concerned, the comparability of this company was considered by this Tribunal in the case of Zyme Solutions Ltd., in its order dated 16.11.2018 as follows:-. This article discusses the merits of either side of the argument: whether foreign exchange difference is operating or non-operating, and goes on to demonstrate that it is actually a non-issue. This Court upheld the exclusion of all three comparables and in particular since the entities had “a high brand value and therefore were able to command greater profits; besides they operated on economic upscale.”. Various appellate forums have consistently ruled that foreign exchange gain/loss are operating in nature. The assessee is being compensated at cost + 8%. In our view, the decision rendered by the Hon’ble High Court and various benches of Tribunal holding that the companies having high brand value cannot be considered as comparable companies can be conveniently applied to the year under consideration also. While working out the margin, the assessing officer treated the foreign exchange gain as non-operating in nature. We have heard rival contentions and perused the record. The Foreign currency guide contains a summary of the framework for accounting for foreign currency matters, including the accounting for foreign currency transactions and translating the financial statements of foreign entities. We notice that an identical issue has been decided by the co-ordinate bench in the case of M/s Arctern Consulting Pvt Ltd (IT(TP)A No.352/Bang/2017 dated 15.10.2019) as under:-. The Foreign currency guide contains a summary of the framework for accounting for foreign currency matters, including the accounting for foreign currency transactions and translating the financial statements of foreign entities. Accordingly, we direct the AO/TPO to exclude both M/s Infosys BPO Ltd and M/s TCS E serve Ltd from final list of comparables. 2. 37 of IT Act. Accordingly, it is submitted that this company is providing KPO services and hence functionally different. It can … 6. 26. It is backed by M/s Infosys Ltd. Ltd. vs. There are strong arguments on both sides of the table on whether forex gain/loss are operating or not. 19. There is a strong connection between operating heads and revenue heads, but there is no one-to-one connection. This company did not disclose BPO services as separate segment. 1.Description of non-operating loss The Company has posted a foreign exchange loss in the amount of ¥1,942 million in consolidated financial results and ¥1,978 million in unconsolidated financial results. The Ld A.R, in reply, submitted that, in various decisions rendered by High Courts, it has been held that the brand value plays a significant role. 11.4 Respectfully following the decision of the co-ordinate bench of Tribunal, we direct for exclusion of this company from the list of comparable.”, 11. In other words, expenses must be incurred. In this context it requires to be noted that the ITAT also referred to the decision of this Court CIT Agnity India Technologies (P.) Ltd. [2013] 36 taxmann.com 289/219 Taxman. Company A will have to work out the foreign exchange gain or loss as follows: This gain is taken to the profit and loss account as a credit (i.e. 11. It is, in a way, speculative. Real gain/loss may arise out of hedging or time lag between transaction and payment, and nominal forex gain/loss arises on 31st March of the year by using Marked to Market(MTM) method of accounting. Revenue takes inspiration from Rule 10TA and considers forex fluctuation as non-operating. 3. India Branch vs. ADIT [TS-335-ITAT-2014(Bang)-TP]. “2. Forex gain/loss is part of the international transaction. Therefore, in light of the above, this ground of the Revenue is liable to be dismissed.”, 14. The assessee undertakes HP’s worldwide accounting and transaction processing work, provision of back office operation and customer support services to various associated enterprises. He submitted that the Hon’ble Karnataka High Court did not admit the appeal filed by the revenue challenging the order passed by the Tribunal by observing that no substantial question of law arises, vide its order dated 6th July, 2018 in ITA No.896/2017. Rather, removing forex enhances comparability. MERITS OF TAKING FOREIGN EXCHANGE GAIN/LOSS AS NON-OPERATING. UK Tribunal: Blackrock’s inter-co loan on arm’s length terms, prefers OECD’s “separate entity” approach, Transfer pricing officers to carry domestic TP-audit, clarifies CBDT. As far the issue treating foreign exchange gain as operating revenue is concerned, it has been held a several decisions of various Benches of ITAT that foreign exchange gain, to the extent it relates to or connected with the business for which ALP is determined, is to be regarded as operating revenue or loss as the case may be. Ltd. He submitted that M/s Infosys Ltd has given brand value computation at page 70 of its annual report. Since it was advantageous to the assessee, the action of TPO was not objected to. Another argument is that forex gain/loss arising out of ‘international transaction’ with an Associated Enterprise (AE) is itself an international transaction! Without careful footnotes research, investors would never know that these currency devaluation charges distort GAAP numbers by lowering operating earnings. Accordingly, he computed the net margin of the assessee at 15.75%. 22. The consistent stand of TPOs has been to consider foreign exchange difference as non-operating in nature. Rather, removing forex enhances comparability. He submitted that M/s Infosys Ltd, the parent company has provided performance guarantee to clients of M/s Infosys BPO Ltd. Ltd. [ITA No.617/Del/2014]. The basic argument behind considering forex gain/loss as operating is that foreign exchange fluctuation is an integral part of sale and purchase transactions. In its decision dated 29th August, 2018 the Court referred to the earlier decision dated 26th February, 2018 which again pertained to AY 2010-2011. The Ld A.R submitted that the assessee, in its transfer pricing study, has always been treating foreign exchange loss/gain as operating in nature. Foreign exchange risk has been high on the agenda of CFOs of MNCs for many years. Logical exposition: There are two components to a Forex gain or loss. “12. . He submitted that there is close connection between M/s TCS E-serve and Tata Consultancy Services Ltd, which has got high brand value. 22. The next issue is whether foreign exchange fluctuation gain/loss shall form part of operating income/loss or not. Those taxpayers who have incurred foreign exchange loss benefit from the revenue’s stand. In the light of this, the merits of taking foreign exchange gain/loss as non-operating are as under: 1. The Company provides its services from various processing facilities, backed by a robust and scalable infrastructure network tailored to meet clients’ needs. Since the appellant company is into low end BPO, it cannot be compared with KPO service provider. You have the same number of francs, but those francs ar… India (P.) Dd. The Ld A.R submitted that the co-ordinate bench, vide its order dated 21.04.2017 passed in the assessee’s own case in IT(TP)A No.147/Bang/2015 for assessment year 2010-11, has excluded M/s Infosys BPO Ltd. 352/Bang/2017. (supra). Why? All of these decisions pertained to AY 2010-2011. As noticed earlier, the assessee seeks exclusion of M/s Infosys BPO Ltd and M/s TCS E-Serve Limited. Further all these decisions pertained to AY 2010-11. 19 crores as contribution towards brand equity. Ltd. vs. Addl CIT  [TS-736-ITAT-2012(Mum)-TP], 9)       M/s Bearing Point Business Consulting Pvt. 9. The difference is a forex loss. 3)       DCIT vs. M/s. We notice that the Tribunal, in the above said case, has taken the view that the foreign exchange fluctuation gain/loss is operating in nature. Comparability criteria: As discussed above, the idea of finding a PLI is to get the best comparability possible. Therefore respectfully following the decision of the ITAT Bangalore in the case of SAP Labs India (P.) Ltd. (supra), we hold that the DRP was justified in directing the AO to IT(TP)A No. Accordingly he submitted that the Ld DRP was justified in including both the above said comparable companies. CIT [2010] 8 taxmann.com 207/[2011] 44 SOT 156 (Bang.) Though the assessee has raised many grounds, at the time of hearing the Ld A.R pressed the grounds relating to the issue of, (a) Exclusion of two comparable companies viz., M/s Infosys BPO Ltd and M/s TCS E-Serve Limited and. Conclusion: Foreign exchange fluctuation gain/loss should be treated as operating profit/loss in nature while computing the profit margin of the assessee as well as of the comparable companies. A foreign exchange gain/loss occurs when a company buys and/or sells goods and services in a foreign currency, and that currency fluctuates relative to their home currency. Because appellate forums have consistently ruled that forex difference is operating, they get instant relief. There should not have any doubt that the “brand value” possessed by a company has definite role to play in fixing the pricing of product/services, but it may have effect only in the field, in which it possesses expertise. Ltd. vs. Addl CIT [TS-736-ITAT-2012(Mum)-TP], 9) M/s Bearing Point Business Consulting Pvt. The above said company has expertise in Strategic outsourcing and category management services. 28. The Guidelines also do not seek to provide an exhaustive catalogue of operating/ non-operating expense. Those taxpayers who have incurred foreign exchange gain appeal that it should be considered operating. The rules for safe harbour were formulated by the Rangachary Committee and definitions for safe harbour are same as that of TP, since safe harbour is nothing but a safety net for a taxpayer above a specified TNMM margin. 4)       M/s. Combined Ratio Excluding Non-Operating Expenses is the sum of the loss ratio and the expenses … A notional forex gain/loss also arises on 31st day of March (year-end date) when Marked-to-Market method is used to make accounting entries. He submitted that the nature of transaction is more relevant than the stand taken by the assessee. 24. M/s TCS E Serve Ltd was considered by the co-ordinate bench in the case of M/s Arctern Consulting Pvt Ltd (IT(TP)A No.352/Bang/2017 dated 15.10.2019 relating to AY 2012-13) and it was held as under:-, “10. Further the said acquisition has enhanced the delivery presence in high end sourcing and procurement space in Asia Pacific region. The OECD TP Guidelines, 2010 ("the Guidelines"), on the contrary, do not talk anything specific about the categorization of foreign exchange gain/ loss as operating or non-operating. All other issues arising on account of TP adjustments were not argued and therefore treated as not pressed for adjudication.”. 20. Real foreign exchange loss is revenue expense u/s. Because forex gain/loss is too dependant on timing of transactions, and brings about more differences between tested party and comparables. Ltd. vs. DCIT [TS-758-ITAT-2012(Bang)-TP], 10)   M/s Trilogy E-Business Software India Pvt. Hence it is, by default, operating. It was submitted that this company has been excluded in various decisions. CIT [2017] 88 taxmann.com 286 (Delhi – Tri. Facts of the case: The assessee is engaged in the business of rendering services and marketing of separators and decanters and spare parts related to separators and decanters. For instance, if a purchase is made a week back (and duly entered in accounts reflecting the rupee figures of dollar purchase price then) and subsequently rupee has weakened against the dollar, the purchasing entity has to pay more money in rupees on today’s date. The Ld A.R placed his reliance on host of decisions to contend that the companies having huge brand value cannot be considered as comparable company. Facts of the case: The assessee is engaged in the business of rendering services and marketing of separators and … At the onset it has to be clarified that ‘operating income’ is not the same as ‘revenue income’. 23. 7. These exchange differences are recognized in the profit or loss on disposal of the net investment. Others may not. CIT [2017] 87 taxmann.com 43 (Delhi – Tri. 11.1 Being aggrieved, the assessee is before us contending that this company is functionally different as it is engaged in diversified business activities of BPO such as banking, finance, insurance. I would setup a QuickBooks® account type other income (on the income statement) so the effect of the currency exchange does not show up in your normal everyday net operating profit (loss) ... but below the line under Other Income and Expense*. The other part is definitely non-operating – the part arising from nominal forex gain/loss calculated by MTM method on 31st of March each year. Infosys BPO Ltd. However, the frequent litigation has resulted in a situation in which revenue is losing both ways. Toyota reported a 39 percent tumble in global operating profit in the latest quarter as foreign exchange losses and higher expenses offset an increase in worldwide sales. Expenses are not a contingent liability, i.e. HC:Share-transfer to subsidiary for corporate restructuring, absent voluntariness, not gift; Upholds capital gains tax, SC:State's 'Administrative lethargy' in notifying Electricity duty rebate violates 'doctrine of promissory estoppel', HC:Transaction non-reference while seeking TPO-reference approval not fatal when CASS-selection reason specified, ITAT:Inter-unit transactions between eligible units u/s. it does not depend on an event that may or may not occur in the future. The Annual report adduces other reasons for their growth. The Director’s report of TCS E-Serve Limited bears out the contention of the Assessee that both entities have been leveraging TCSs scale and large client base to increase their business in a significant way. There is no doubt about it. Further there was no segmental bifurcation between the transaction processing and technical services. . 24. He also pointed out that under rule 10B(3) of the criteria for comparability is the effect of profit on account of differences. 4. Safe harbour definitions of the government clearly portray the rules governing TP audit. This potential is referred to as an unrealized gain or loss. Overall foreign loss. In view of the aforesaid decision, we are of the view that the foreign exchange gain has to be treated as part of the operating profit while computing the profit margin of the assessee as well of the comparable companies. 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