2016 (1) TMI 1265 - AT - Income Tax

TPA - selection of comparable - Held that - The assessee was engaged in providing broadly four types of services (i) Firstly, identify the investment opportunity in private equity, distressed debt and listed or unlisted securities and then advise or recommend to the AE for investment in identified target. (ii) Secondly, advise the investee company for financing the investment through equity or debt finance or similar financing, which include purchase of certificates of deposit, making of senior loans; purchase of senior or subordinated notes or bonds (which may or may not be convertible into equity or be purchases with related warrants or options to acquire equity securities); purchase of preferred securities, investments in asset-backed securitization vehicles, and issuance of guarantees. Also, advise the AE, the options for the exchange of investments for other investments in connection with any reorganization, recapitalization, splitting of shares, change of par value, conversion of otherwise (iii) Thirdly, arrange support service (i.e. on outsource basis) for the AE, based on requirement for executing the intended task. (iv) Fourthly, monitor the performance of Investee Company and advise the AE in respect of exit strategy from investment In view of the above summary of activities carried out by the assessee, we do not agree with the contention of the Ld AR that the assessee was merely a nonbinding investment advisory service provider as against characterisation by the TPO as fee based investment and financial advisory service provider. In addition to the advisory, the assessee was also engaged in providing support services to the AE for execution of advisory. The assessee was engaged in providing advice for financing the investment in the investee company and the advice for financing included all kind of possible modes of equity and debt financing. Companies dissimilar with that of assessee need not be selected as comparable. Working capital adjustment - Held that - While making comparison of the assessee with the comparables, the economic adjustments are important in eliminating material differences in functions, assets, and risk between the assessee and the comparables to increase the comparability. As the request of the assessee seeking working capital adjustment has not been attended either by the TPO or by the DRP, we, therefore, restore the matter to the TPO and direct him to allow the adjustment for working capital from the results of the comparable after providing due opportunity of hearing to the assessee.

Issues Involved:
1. Upward adjustment to the transfer price for advisory services.
2. Adjustment for outstanding receivables.
3. Inclusion/exclusion of comparable companies.
4. Adjustment for risk undertaken.
5. Working capital adjustment.

Detailed Analysis:

1. Upward Adjustment to the Transfer Price for Advisory Services:
The assessee challenged the upward adjustment of Rs. 3,20,29,913/- made to the international transaction of providing advisory and support services to its Associated Enterprises (AE). The Transfer Pricing Officer (TPO) characterized the assessee as a fee-based investment/financial advisory service provider and used the Transactional Net Margin Method (TNMM) with Net Operating Profit Mark-up on cost (OP/TC) as the profit level indicator. The TPO included six new comparables, leading to an average margin of 39.13%, and determined the arm's length price, resulting in an upward adjustment. The assessee argued that the TPO did not appreciate its business model and compared its activities to those of investment banks and merchant banks, rejecting the comparable companies selected by the assessee without adequate reasons.

2. Adjustment for Outstanding Receivables:
The TPO proposed an adjustment of Rs. 51,34,309/- for interest on the amount of outstanding receivables, holding it as an international transaction. The assessee contended that the outstanding receivables were not an international transaction and that the adjustment for outstanding receivables should be factored into the working capital adjustment. The Tribunal held that the transaction of outstanding receivables beyond a certain period is an international transaction independent of working capital adjustment. The TPO was directed to compute interest for receivables on a day-to-day basis beyond a period available as per industry standard and apply the LIBOR rate of interest.

3. Inclusion/Exclusion of Comparable Companies:
The assessee objected to the inclusion of certain comparables by the TPO, arguing that they were functionally dissimilar. The Tribunal examined each comparable on its merits:

- Sumedha Fiscal Services Ltd.: The Tribunal found that the company was engaged in diversified financial services, including loan syndication and restructuring, which were functionally similar to the assessee's activities. However, the TPO was directed to examine the revenue from merchant banking activities and exclude the comparable if the income from issue management was substantial.
- Khandwala Securities Ltd.: The Tribunal found that a substantial portion of the revenue was from brokerage activities, making it functionally dissimilar to the assessee. The TPO was directed to exclude this company.
- Brescon Corporate Advisors Ltd.: The Tribunal found that the company was engaged in debt resolution and syndication, which were similar to the assessee's advisory in distressed debt. The TPO was directed to retain this company as a comparable.
- Ladderup Corporation Ltd.: The Tribunal found that the company was engaged in advisory services similar to the assessee and directed the TPO to retain it as a comparable.
- Birla Sunlife Asset Management Company Ltd.: The Tribunal found that the company was engaged in asset management and portfolio management services, making it functionally different from the assessee. The TPO was directed to exclude this company.
- Almondz Global Securities Ltd.: The Tribunal found that the segment included services of merchant banking and underwriting, making it functionally dissimilar. The TPO was directed to exclude this company.
- Axis Private Equity Ltd.: The Tribunal found that the company was engaged in asset management activities, making it functionally different from the assessee. The TPO was directed to exclude this company.

4. Adjustment for Risk Undertaken:
The assessee requested a risk adjustment, arguing that it operated in a relatively risk-free environment compared to the entrepreneurial comparables. The Tribunal agreed that a suitable adjustment should be allowed and restored the matter to the TPO for examination and quantification of the risk adjustment.

5. Working Capital Adjustment:
The assessee requested a working capital adjustment, arguing that it and the comparables operated at different levels of trade receivables, trade payables, and inventories. The Tribunal agreed in principle and restored the matter to the TPO to allow the adjustment for working capital after providing due opportunity of hearing to the assessee.

Conclusion:
The appeal of the assessee was allowed for statistical purposes, with directions to the TPO to re-compute the adjustments after considering the Tribunal's findings on the inclusion/exclusion of comparables, risk adjustment, working capital adjustment, and computation of interest on outstanding receivables.

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