2013 (10) TMI 1487 - AT - Income Tax

Summary

Issues Involved:

1. Non-adjudication of specific grounds by CIT (A).
2. Fresh comparability analysis at the time of assessment.
3. Use of multiple year data for calculating operating margin.
4. Rejection of certain comparable companies.
5. Acceptance of additional comparable companies.
6. Calculation of transfer pricing adjustment without considering +/- 5% variation.

Summary:

1. Non-adjudication of Specific Grounds:
The Assessee argued that the CIT (A) erred in not adjudicating specific grounds, including the AO's adherence to the JCIT's order u/s 92CA(4) and the TPO's rejection of the transfer pricing analysis without invoking specific clauses u/s 92C(3). The Tribunal dismissed these grounds as academic.

2. Fresh Comparability Analysis:
The Assessee contended that the CIT (A) erred in rejecting the contention that a fresh comparability analysis should not be conducted at the time of assessment using non-contemporaneous data as per Rule 10D(4). This ground was dismissed as not pressed.

3. Use of Multiple Year Data:
The Assessee's contention for using multiple year data for calculating the operating margin was rejected, aligning with multiple judgments favoring Revenue. This ground was dismissed.

4. Rejection of Certain Comparable Companies:
The CIT (A) rejected the inclusion of Lazard India Ltd and GeefCee Finance Limited as comparables. The Assessee did not press this ground, and it was dismissed.

5. Acceptance of Additional Comparable Companies:
The Tribunal reviewed the inclusion of ICDS Securities Ltd and Sumedha Fiscal Services Ltd by CIT (A). It found that ICDS Securities Ltd, primarily engaged in credit card services, and Sumedha Fiscal Services Ltd, involved in loan syndication and project consultancy, were not functionally comparable to the Assessee's investment advisory services. Thus, these companies were excluded from the list of comparables.

6. Calculation of Transfer Pricing Adjustment:
The Assessee argued that the AO erred in calculating the transfer pricing adjustment without considering the permitted +/- 5% variation from the Arms Length Price as per proviso to section 92C(2). The Tribunal directed the AO to apply the proviso in accordance with the law.

Risk Adjustment:
The Tribunal dismissed the Assessee's claim for risk adjustment, stating that it is not automatic and must be substantiated with facts and figures.

Revenue's Cross Appeal:
The Revenue contested the CIT (A)'s relief to the Assessee by taking the Arm's Length margin at 32.25% instead of 45.67%. The Tribunal upheld the exclusion of GeefCee Finance Limited due to persistent losses and maintained the exclusion of four other comparables as they were not functionally similar to the Assessee.

Conclusion:
Both cross appeals were partly allowed, with directions to the AO/TPO to re-evaluate the comparables and apply the +/- 5% variation as per section 92C(2).