2014 (11) TMI 91 - AT - Income Tax

Selection of comparables - Determination of ALP u/s 92C(2) r.w. Section 92C(2A) of the Act Extreme OPM - Held that - The assessee is engaged in the business of rendering investment advisory and related support services to its principal Carlyle Hong Kong Following the decision in assessee s own case for the earlier assessment year as decided in M/s. Carlyle India Advisors Pvt. Ltd. Versus The DCIT, Circle-10(1), Mumbai 2014 (2) TMI 648 - ITAT MUMBAI the three comparables considered by the TPO shows that M/s. Future Capital Investment Advisors Ltd., has operating profit at 21.79% whereas OPM of Motilal Oswal Investment Advisors Pvt. Ltd. is 72.33% - The comparables used by the TPO themselves are showing extreme OPM - A perusal of the Director s report of Motilal Oswal Investment Advisors Pvt. Ltd. shows that the company has completed 23 assignments successfully as against 14 completed in the immediately preceding year - the income from operations have been shown only as advisory fees whereas it is admittedly an undisputed facts that the said company is engaged in diversified activities - Segmental reporting is not available. Profit and loss account appears to be only of consolidated accounts - The company is registered with SEBI as a merchant banker and the Director s report show that it is into takeover , acquisitions, disinvestments etc. - In the absence of specific data it is not possible to make comparison - the company being into merchant banking and cannot be considered as a comparable - the AO is directed to exclude the MOIAPL from the list of the comparables for determination of ALP of the transaction - Decided in favour of assessee. KGL and KJMC Functionally different companies - Held that - Following the decision of the High Court in assessee s own case Commissioner of Income-tax-10, Mumbai Versus Carlyle India Advisors (P.) Ltd. 2013 (4) TMI 486 - BOMBAY HIGH COURT - the functions of the assessee cannot be compared with that of the list of comparables picked up by the TPO which includes the said KGL and KJMC - the business of investment, merchant banking, corporate finance and similar activities cannot be compared to the investment advisory activities of the assessee thus, the KGL and KJMC are functionally different which cannot be considered for determination of the ALP of the assessee the AO is directed to exclude the two comparables too Decided in favour of assessee.

Issues Involved:
1. Income assessment discrepancy.
2. Transfer pricing adjustments.
3. Rejection of economic analysis/transfer pricing study.
4. Selection of comparable companies.
5. Denial of economic/risk adjustments.
6. Ignoring multiple year data for comparables.
7. Non-provision of 5 percent range benefit.

Detailed Analysis:

1. Income Assessment Discrepancy:
The appellant contested the assessed income of INR 16,84,16,070/- against the returned income of INR 8,04,14,738/-. The AO, following the directions of the DRP, assessed the income at a higher amount.

2. Transfer Pricing Adjustments:
The appellant challenged the transfer pricing adjustments amounting to INR 8,80,02,355/-, alleging that the adjustments were not at arm's length as per sections 92C(1) and 92C(2) of the Act, read with Rule 10D of the Income Tax Rules, 1962.

3. Rejection of Economic Analysis/Transfer Pricing Study:
The AO/DRP/TPO rejected the economic analysis/transfer pricing study conducted by the appellant, which was claimed to be in accordance with the Act and Rules.

4. Selection of Comparable Companies:
The primary issue was the selection of three comparables: KLG Capital Services Limited, KJMC Corporate Advisors (India) Limited, and Motilal Oswal Investment Advisors Pvt Ltd. The appellant argued these companies were not functionally comparable.

5. Denial of Economic/Risk Adjustments:
The appellant contended that the AO/DRP/TPO erred in not granting the benefit of economic/risk adjustments.

6. Ignoring Multiple Year Data for Comparables:
The appellant argued that the AO/DRP/TPO ignored Rule 10B(3) and judicial pronouncements advocating the use of multiple year data for comparables.

7. Non-provision of 5 Percent Range Benefit:
The appellant claimed the AO/DRP/TPO erred in not providing the benefit of the 5 percent range as per the proviso of section 92C(2) of the Act.

Issue-wise Analysis:

Selection of Comparable Companies:
The Tribunal focused on ground no.4, which questioned the selection of three comparables. The appellant provided detailed arguments against the inclusion of these companies:

a. Motilal Oswal Investment Advisors Pvt Ltd (MOIAPL):
The Tribunal noted that MOIAPL was declared non-comparable in the appellant's own case for AY 2008-2009. MOIAPL, being engaged in diversified activities including merchant banking, was not functionally comparable to the appellant's investment advisory services. The Tribunal directed the AO to exclude MOIAPL from the list of comparables.

b. KLG Capital Services Limited (KLG):
The Tribunal observed that KLG, engaged in merchant banking and financial consultancy services, was not functionally comparable. Additionally, KLG's turnover was less than one crore, making it unsuitable as a comparable. The Tribunal directed the exclusion of KLG based on these grounds.

c. KJMC Corporate Advisors (India) Limited (KJMC):
The Tribunal noted that KJMC, involved in broking, underwriting, and merchant banking, was not functionally similar to the appellant. The Tribunal upheld the appellant's argument that KJMC should be excluded from the comparables.

Consequential Adjustments:
With the exclusion of the three comparables (KLG, KJMC, and MOIAPL), the appellant's reported results became final. Consequently, the TP adjustments made by the AO/TPO were required to be deleted. The Tribunal dismissed the other grounds as they became academic exercises.

Conclusion:
The Tribunal partly allowed the appeal, directing the exclusion of the three disputed comparables and the deletion of the TP adjustments. The order was pronounced on 22nd August, 2014.

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