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2015 (5) TMI 953 - AT - Income TaxTransfer pricing adjustment - selection of comparable - Held that - Job profile of MOIAPL was different as compared to the activities undertaken by the assessee.It was rendering investment advisory services specifically related with real estate business whereas MOIPAL is a merchant banker.So, we hold that MOIAPL is liable to be excluded from the final set of comparables. It is further found that the TPO selected two more comparables besides MOIAPL while determining the TP adjustments. We find that the assessee had objected to the inclusion of those two comparables before the DRP. The DRP has not given any direction in that regard. The DRP had passed order about MOIAPL only and has not mentioned anything in favour or against the inclusion of the remaining two comparable. In our opinion the DRP being a appellate forum is supposed to decide the issue raised before it by the assessee. Not only the DRP failed to pass a speaking order about those two comparable, but it also did not pass a rectification order with regard to the application filed by the assessee, u/s.154 0f the Act. Therefore we are of the opinion that in the interest of justice matter should be restored back to the file of the DRP who would give a clear direction about the remaining two comparables selected by TPO and objected by the assessee. The DRP would afford a reasonable opportunity of hearing to the assessee before deciding the appeal. Additional ground of appeal raised by the assessee, before the DRP was not adjudicated upon. We direct the DRP to decide the same.
Issues Involved:
1. Upward transfer pricing adjustment in determining the arm's length price (ALP) of international transactions. 2. Rejection of comparables selected by the appellant. 3. Not granting the benefit of the +/- 5% variation under section 92C(2) of the Income-tax Act. 4. Non-adjudication of the comparability of IDC Limited. 5. Failure to provide detailed search process and reliance on single-year data. 6. Consideration of companies with supernormal profits and substantial related party transactions as comparables. Detailed Analysis: 1. Upward Transfer Pricing Adjustment: The primary issue revolves around the upward transfer pricing adjustment of Rs. 61,790,764/- made by the Assessing Officer (AO) in determining the ALP of the international transactions related to investment advisory/support services provided by the appellant to its overseas Associated Enterprises (AE). The appellant contested this adjustment, arguing that the AO erred by rejecting the comparables selected by the appellant and adopting inappropriate comparables. 2. Rejection of Comparables Selected by the Appellant: The appellant had selected seven comparables in its Transfer Pricing (TP) study, which were rejected by the Transfer Pricing Officer (TPO). The TPO introduced three new comparables: Motilal Oswal Investment Advisors Pvt. Ltd. (MOIAPL), Future Capital Investment Advisors Ltd. (FCIAL), and Integrated Capital Services Ltd. (ICSL). The appellant argued that MOIAPL and ICSL were engaged in activities such as merchant banking, mergers, and acquisitions, which were not comparable to the appellant's investment advisory services. The Tribunal held that MOIAPL was not a valid comparable as it was engaged in diversified fields and merchant banking activities, unlike the appellant, which provided non-binding investment advisory services. 3. Not Granting the Benefit of +/- 5% Variation: The appellant contended that the AO did not grant the benefit of the +/- 5% variation under section 92C(2) of the Income-tax Act in computing the revised ALP for the international transactions. This issue was not explicitly addressed in the judgment, indicating that the primary focus was on the comparability of selected companies. 4. Non-Adjudication of the Comparability of IDC Limited: The appellant raised an additional ground of appeal, arguing that the Dispute Resolution Panel (DRP) erred in not adjudicating and thereby not accepting IDC Limited as comparable to the appellant's functions. The Tribunal directed the DRP to decide on this additional ground, as it was related to the main issue of comparability. 5. Failure to Provide Detailed Search Process and Reliance on Single-Year Data: The appellant argued that the AO and TPO failed to provide a detailed search process undertaken to arrive at the final set of comparable companies and relied only on single-year data (for the year ended March 2009). The TPO held that it was mandatory to use only the current year data as per Rule 10(4) of the Income Tax Rules, 1962, and rejected the multiple-year data used by the appellant. The Tribunal did not explicitly address this issue, focusing instead on the comparability of the selected companies. 6. Consideration of Companies with Supernormal Profits and Substantial Related Party Transactions: The appellant contended that the TPO considered companies with supernormal profits and substantial related party transactions as comparables, which were not appropriate. The Tribunal agreed with the appellant's contention regarding MOIAPL, which had supernormal profits and was engaged in diversified activities. The Tribunal directed the DRP to reconsider the inclusion of the other two comparables (FCIAL and ICSL) and to provide a clear direction on their comparability. Conclusion: The Tribunal held that MOIAPL was not a valid comparable for determining the ALP of the appellant's international transactions, as it was engaged in diversified fields and merchant banking activities. The Tribunal directed the DRP to reconsider the inclusion of the remaining two comparables (FCIAL and ICSL) and to decide on the additional ground related to IDC Limited. The appeal filed by the appellant was partly allowed, and the matter was restored to the file of the DRP for further consideration.
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