2018 (11) TMI 1731 - AT - Income Tax

TP Adjustment - Comparable selection - HELD THAT - Assessee is a company incorporated in India and is a subsidiary of Carlyle Asia Investment Advisors Limited (Carlyle Hong Kong) and is engaged in rendering non-binding investment advisory services to Carlyle Hong Kong. The assessee has rendered non-binding investment advisory services to its AE. The services offered are in the nature of identifying potential investment opportunities in India for the Group. The economic analysis of the transaction is discussed in the TP Report thus companies functionally dissimilar with that of assessee need to be deselected from final list.

Summary

Issues Involved:
1. Inclusion and exclusion of comparables for Transfer Pricing (TP) analysis.
2. Determination of Arm's Length Price (ALP) for the assessee's transactions.
3. Validity of the assessment order and its adherence to the period of limitation.

Detailed Analysis:

1. Inclusion and Exclusion of Comparables for Transfer Pricing (TP) Analysis:

The primary issue revolves around the comparability analysis conducted by the Transfer Pricing Officer (TPO) and the subsequent adjustments made. The TPO rejected the assessee's comparables and included Motilal Oswal Investment Advisors Pvt. Ltd. and Ladderup Corporate Advisory Pvt. Ltd., which had significantly higher margins (82.51% and 52.42%, respectively). The assessee argued that these companies were not functionally comparable due to their high margins and different business activities. The CIT(A) directed the exclusion of Motilal Oswal but confirmed the inclusion of Ladderup Corporate Advisory Pvt. Ltd., ICRA Management Consulting Services Ltd., and IDC (India) Ltd.

The Tribunal, referencing its own decisions and those of the High Court in the assessee's previous assessment years, upheld the exclusion of Motilal Oswal Investment Advisors Pvt. Ltd. and Ladderup Corporate Advisory Pvt. Ltd., reiterating that these entities were not suitable comparables for the assessee's non-banking investment advisory services. The Tribunal also directed the inclusion of ICRA Management Consulting Services Ltd. and IDC (India) Ltd., consistent with prior judicial pronouncements, as these entities were deemed functionally similar to the assessee.

2. Determination of Arm's Length Price (ALP) for the Assessee's Transactions:

The assessee used the Transactional Net Margin Method (TNMM) with the Profit Level Indicator (PLI) being Operating Profit to Operating Cost. The assessee's margin was 15%, and the arithmetic mean of the comparables was computed at 15.20%. The TPO's inclusion of high-margin comparables led to a significant transfer pricing adjustment of ?18,04,89,850/-. The Tribunal, by excluding the high-margin comparables and including functionally similar ones, aimed to ensure a fair and reasonable determination of the ALP, aligning with the principles set out in Section 92/92CA read with rules 10B(2)(4) of the Income Tax Rules, 1962.

3. Validity of the Assessment Order and its Adherence to the Period of Limitation:

The assessee contended that the assessment order was barred by limitation and that the assessment proceedings had abated due to the AO's failure to pass the order within the prescribed period. However, since the Tribunal adjudicated the issue on merits, this ground was rendered infructuous and was not further deliberated.

Conclusion:

The Tribunal's order resulted in the partial allowance of the assessee's appeal and the dismissal of the Revenue's appeal. The Tribunal emphasized adherence to previous judicial decisions to ensure consistency and fairness in the determination of the ALP, thereby excluding high-margin comparables and including functionally similar ones. The Tribunal's detailed analysis and reliance on prior case law underscore the importance of a consistent and methodical approach in transfer pricing matters. The order was pronounced on 24/11/2018.