2018 (4) TMI 573 - HC - Income Tax

TPA - comparable selection - functional dissimilarity - Held that - The exclusion or inclusion of one or the other comparable would by itself not constitute a question of law unless it is shown that there are important functional dissimilarities or that vital material facts which go to the route of profitability or other material circumstances are involved. In the present case, the comparables as well as the assessee are all manufacturers of medical/surgical equipments and, therefore, inclusion of three comparables is based upon appreciation of findings of fact; they do not call for interference. The appeal is, therefore, dismissed.

Summary

Issues:
1. Exclusion of comparables by the Transfer Pricing Officer and Assessing Officer.
2. Inclusion of comparables by the Commissioner of Income Tax (Appeals) and the Income Tax Appellate Tribunal.
3. Justification of inclusion of comparables in Arms Length Price determination.
4. Functional similarities among the companies involved in manufacturing and selling medical and diagnostic equipment.

Analysis:
1. The first issue revolves around the disagreement regarding the exclusion of three comparables by the Transfer Pricing Officer and the Assessing Officer in the Arms Length Price determination. The Commissioner of Income Tax (Appeals) directed the inclusion of these comparables due to their broad functional similarities. The Income Tax Appellate Tribunal supported this decision, leading to the Revenue's grievance.

2. The second issue concerns the nature of the assessee's business, involving the manufacturing and trading of medical devices and diagnostic equipment. The initial transfer pricing report included certain comparables which were later excluded based on functional dissimilarities. However, the Commissioner of Income Tax (Appeals) and the Income Tax Appellate Tribunal disagreed with this exclusion, emphasizing that all companies, including the assessee, were engaged in manufacturing and selling medical and diagnostic equipment.

3. The third issue addresses the justification behind the inclusion of the comparables in the Arms Length Price determination. The Court emphasized that the inclusion or exclusion of comparables should be based on important functional similarities or material facts related to profitability. In this case, since all the companies involved were manufacturers of medical and surgical equipment, the inclusion of the comparables was deemed appropriate based on factual findings.

4. The final issue focuses on the functional similarities among the companies involved in manufacturing and selling medical and diagnostic equipment. The Court concluded that the inclusion of three comparables was justified as all entities were engaged in similar business activities. The decision to include these comparables was based on factual findings and did not warrant any interference.

In conclusion, the Court dismissed the appeal, upholding the inclusion of the three comparables in the Arms Length Price determination based on their functional similarities and the nature of the business activities involved.