2021 (11) TMI 683 - HC - Income Tax

TP Adjustment - Upward adjustment on account of performance fees and investment advisory fees - inclusion of 3 comparables in the TNMM analysis - Whether the Ld. ITAT is right in directing inclusion of the comparable M/s Kinetic Trust Ltd. and directing inclusion of the comparable M/s. IDC India Ltd. and M/s Future Capital Investment Advisors Ltd - HELD THAT - The entire exercise of making transfer price adjustment on the basis of comparables is nothing but a matter of estimate of a broad and fair guesswork of the authorities based on factual relevant material brought before the authorities, i.e., TPO, DRP and the Tribunal which are the fact finding authorities- ITAT has not committed any perversity or applied incorrect principles to the given facts and when the facts and circumstances are properly analysed and correct test is applied to decide the issue at hand, then, we do not think that questions as pressed raises any substantial questions of law.

Summary

Issues:
Impugning an order of the Income Tax Appellate Tribunal (ITAT) - Mumbai regarding transfer pricing adjustments.

Analysis:
1. The respondent filed its income tax return for A.Y. 2010-2011, and after scrutiny, a reference to the Transfer Pricing Officer (TPO) was made due to international transactions exceeding the threshold limit. The TPO made an upward adjustment, leading to a draft assessment order by the Assessing Officer. The Dispute Resolution Panel (DRP) partly allowed objections filed by the respondent, and the final assessment order was passed.

2. The respondent appealed before the ITAT, challenging the order. The ITAT allowed the appeal, leading to the current appeal. The substantial questions of law raised included issues related to the nature of the assessee's activities, comparables for analysis, and reliance on the APA signed by the assessee with CBDT for subsequent years.

3. The court divided the questions into two parts. Part-1 questions (a) to (e) were related to the nature of services rendered by the respondent. The court upheld ITAT's finding that no evidence of additional services was found, and PMS services were part of investment advisory services.

4. Part-2 questions (f) and (g) concerned the inclusion of comparables in the analysis. The court found that the ITAT's findings were factual, and the revenue failed to demonstrate any perversity in the decision. The court emphasized that transfer pricing adjustments based on comparables are estimates and involve a fair guesswork by the authorities.

5. The court cited previous judgments emphasizing that challenging the exclusion or inclusion of comparables should demonstrate perversity or failure to adhere to legal principles. The court found no substantial questions of law in the appeal and dismissed it, noting that such appeals filed in a ritualistic manner waste court's time.

6. The court directed the Revenue and the Assessee to review appeals filed on transfer pricing issues and withdraw those lacking evidence of perversity or challenging settled legal positions. The counsel of Revenue was instructed to inform relevant authorities about the court's decision for necessary action.