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2017 (1) TMI 1628 - AT - Income TaxTPA - inclusion and exclusion of certain comparables - Held that - Assessee-company engaged in providing non-binding investment advisory services to its Associated Enterprise(AE) We find force in the preliminary submission of the AR that if ICRA and IDCL are accepted as comparables and if MOIAPL and NBAL are excluded from the final list the margin earned by the assessee would be within the limit of /-5% range. The assessee has shown margin of 20. 56% for the services rendered by it to its AE. As it falls within the range of /-5% so in our opinion the adjustment made by the AO to determine the ALP of the IT. s. entered into by the assessee during the year under consideration has to be. As a result appeal filed by the assessee is allowed and appeal of the AO stands dismissed.
Issues Involved:
1. Inclusion and exclusion of certain comparables in Transfer Pricing (TP) analysis. 2. Determination of Arm’s Length Price (ALP) for international transactions. 3. Validity of comparables selected by the assessee and the Transfer Pricing Officer (TPO). Detailed Analysis: 1. Inclusion and Exclusion of Comparables: Assessee's Comparables: The assessee, engaged in providing non-binding investment advisory services to its Associated Enterprise (AE), selected seven comparables: Access India Advisory Ltd. (AIAL), Future Capital Investment Advisory Ltd. (FCIAL), ICRA Management Consulting Services Limited (ICRA), IDC (India) Limited (IDCL), Informed Technologies Ltd. (ITL), Integrated Capital Services Ltd. (ICSL), and Kinetic Trust Ltd. (KTL). The TPO rejected these comparables, directing the assessee to provide updated margins and functional analysis, ultimately excluding all four remaining comparables after the assessee's revisions. TPO's Comparables: The TPO proposed additional comparables: Motilal Oswal Investment Advisory Private Limited (MOIAPL), Ladder up Corporate Advisory Private Limited (LCAPL), New Berry Advisers Ltd (NBAL), and CRISIL Risk and Infrastructure Solutions Ltd. (CRISIL). After considering the assessee's objections, the TPO excluded CRISIL but retained MOIAPL, LCAPL, and NBAL, resulting in an average margin of 60.84%. Dispute Resolution Panel (DRP) Findings: The DRP upheld the rejection of the assessee's comparables and further excluded MOIAPL and NBAL from the TPO's list. The DRP noted that MOIAPL was not engaged in investment advisory activities but in merchant banking, and NBAL's activities were functionally different from the assessee's. Tribunal's Decision: The Tribunal upheld the DRP's exclusion of MOIAPL, citing previous cases where it was determined that MOIAPL's functions as a merchant banker were not comparable to non-binding investment advisory services. The Tribunal also agreed with the DRP's rejection of NBAL, as it was engaged in marketing and distribution of financial products, not directly comparable to the assessee's services. 2. Determination of Arm’s Length Price (ALP): TPO's Calculation: The TPO computed the ALP based on the average margin of the selected comparables, resulting in a significant adjustment to the assessee's declared income. The TPO's final set of comparables included MOIAPL, LCAPL, and NBAL, leading to an ALP adjustment of ?8,43,43,070/-. Assessee's Objections: The assessee objected to the inclusion of MOIAPL, LCAPL, and NBAL, arguing that their activities were not functionally comparable. The assessee also contended that if ICRA and IDCL were accepted as valid comparables, the entire TP adjustment would be liable to be deleted. Tribunal's Findings: The Tribunal found that ICRA and IDCL should be included in the final list of valid comparables based on broader functional comparability and previous Tribunal decisions. The Tribunal emphasized the importance of consistency in selecting comparables and noted that ICRA and IDCL had been accepted in previous and subsequent years. 3. Validity of Comparables Selected by the Assessee and the TPO: ICRA and IDCL: The Tribunal upheld the inclusion of ICRA and IDCL as valid comparables, noting that they provided consultancy services in diverse areas similar to the assessee's non-binding investment advisory services. The Tribunal referenced previous decisions where these companies were accepted as comparables and found no material change in their functional profiles. MOIAPL and NBAL: The Tribunal reiterated that MOIAPL, engaged in merchant banking and investment banking services, was not comparable to the assessee's investment advisory services. Similarly, NBAL's activities in marketing and distribution of financial products were deemed functionally different from the assessee's services. Final Adjustment: With ICRA and IDCL included and MOIAPL and NBAL excluded, the Tribunal recalculated the margin, finding the assessee's margin of 20.56% to be within the acceptable range of +/-5%. Consequently, the Tribunal deleted the TP adjustment made by the AO. Conclusion: The Tribunal allowed the assessee's appeal and dismissed the AO's appeal, affirming the inclusion of ICRA and IDCL as valid comparables and the exclusion of MOIAPL and NBAL. The final determination of the ALP was in favor of the assessee, with no adjustment required.
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