2015 (6) TMI 594 - AT - Income Tax

Transfer pricing adjustment - inclusion of Motilal Oswal Investment Advisors Private Limited in the final set of comparables challenged - Held that - It is starkly evident that the said concern M/s. Motilal Oswal Investment Advisors Private limited is engaged in qualitatively different and diversified business activities, whereas the activities of the assessee are confined to rendering non-binding investment advisory for its Associated Enterprises. The activities of the M/s. Motilal Oswal Investment Advisors Private limited noted by the Tribunal in the case of Carlyle India Advisors Private Limited (2014 (2) TMI 648 - ITAT MUMBAI ) for assessment year 2008-09, are clearly emerging in the instant year too and, therefore, it cannot be said to be a concern which is comparable to an entity which is rendering non-binding advisory investment services alone. Thus, in our considered opinion, the assessee is justified in seeking the exclusion of the said concern from the final set of comparables on account of functional dissimilarities. In fact, in other precedents cited by the ld. Representative for the assessee, the said concern has also been excluded from the set of comparables under similar circumstances. Disallowance of expenses on foreign travel - A.O. disallowed 50% of the expenditure primarily on the ground that the assessee did not furnish evidence to prove business justification for the foreign travel - Held that - The business purpose relating to incurrence of impugned expenditure is missing. The details provided, which are placed in the Paper Book, do not contain any reference to the business purpose for which the travel had been undertaken by the concerned Directors. No doubt, the assessee is rendering services to its group companies abroad and necessarily the directors would be required to travel, so however where the A.O. has required the assessee to point out the business purpose for which the various tours were undertaken, then, in our view, the failure on the part of the assessee to provide such details does invite a disallowance. Therefore, in our considered opinion, having regard to the material and evidence on record, the A.O. was justified in disallowing a sum of ₹ 29,78,191/- out of the foreign travel expenses. The said action of the A.O. is hereby affirmed. Thus, on this aspect assessee fails. - Decided against assessee.

Summary

Issues Involved:
1. Transfer pricing adjustment of Rs. 3,46,06,210 for international transactions.
2. Disallowance of 50% of foreign travel expenses totaling Rs. 29,79,191.
3. Levying of interest under Sections 234B and 234C.

Detailed Analysis:

Transfer Pricing Adjustment:

The primary issue is the adjustment of Rs. 3,46,06,210 to the value of international transactions for investment advisory services provided by the assessee to its Associated Enterprise (AE), NVP Mauritius. The assessee used the Transactional Net Margin Method (TNM) with Operating profit/Total Cost (OP/TC) as the Profit Level Indicator (PLI), determining its margin at 20.10% and comparing it with a weighted average mean of 15.68% from six comparable companies. The Transfer Pricing Officer (TPO) disagreed with the use of multiple years' financial data and instead used single-year data, selecting the following comparables: Future Capital Investment Advisors Ltd., Kshitji Investment Advisors Co. Ltd., Future Capital Holdings Ltd., and Motilal Oswal Investment Advisors P. Ltd., with an arithmetic mean margin of 40.31%. This led to an adjustment of Rs. 3,46,06,210 after rectification.

The assessee contested the inclusion of Motilal Oswal Investment Advisors Private Limited, arguing that its activities were functionally incomparable, involving diverse services such as Equity Capital Markets, Mergers & Acquisitions, Private Equity Syndications, and Structured Debt. The Tribunal agreed, noting that Motilal Oswal's diversified activities and lack of segmental financial reporting made it an unsuitable comparable. The Tribunal cited precedents where Motilal Oswal was excluded under similar circumstances. Consequently, the Tribunal directed the exclusion of Motilal Oswal from the final set of comparables and ordered the Assessing Officer (A.O.) to recompute the adjustment accordingly.

Disallowance of Foreign Travel Expenses:

The second issue concerns the disallowance of Rs. 29,79,191 out of total foreign travel expenses of Rs. 59,58,382. The A.O. disallowed 50% of the expenses due to the assessee's failure to provide satisfactory evidence of the business justification for the travel. The assessee argued that as a subsidiary of a foreign company, its directors frequently traveled abroad for business purposes. However, the Tribunal found that the provided details lacked specific references to the business purposes of the travels. Given the absence of sufficient evidence, the Tribunal upheld the A.O.'s disallowance of 50% of the foreign travel expenses.

Levying of Interest:

The assessee also contested the levying of interest under Sections 234B and 234C. However, this issue was not substantively addressed in the judgment.

Conclusion:

The Tribunal partly allowed the assessee's appeal. The inclusion of Motilal Oswal Investment Advisors Private Limited as a comparable was rejected, and the A.O. was directed to recompute the transfer pricing adjustment. The disallowance of 50% of foreign travel expenses was upheld due to insufficient evidence of business justification. The issue of interest levied under Sections 234B and 234C was not discussed in detail.