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2014 (11) TMI 257 - AT - Income TaxTransfer pricing adjustment - Investment advisory services rendered to the overseas AE Held that - The assessee s margin was 23.29%, it was claimed by the assessee that its international transactions are at arm s length price the company has completed its third Financial Year since inception and 45 transactions in the field of takeover, acquisition, disinvestment - The primary activity of M/s Motilal Oswal Investment Advisor Pvt. Ltd. during the year was in the field of capital market, private equity and mezzanine finance as well as acquisition mergers and the cross boarder acquisition for its clients in India - the majority of transactions completed by Motilal Oswal Investment Advisor Pvt. Ltd. are in the filed of investment banking transactions comprising private placing of equity, syndication of project debt by taking of equity shares, acquisition, initial public offer (IPO), open offer and sponsor etc. Decision in the case of M/s Carlyle India Advisors Pvt Ltd. Vs. DCIT 2014 (2) TMI 648 - ITAT MUMBAI relied upon. The similar business activity was carried out during the year, therefore, having considered the business profile of the assessee as well as M/s Motilal Oswal Investment Advisor Pvt. Ltd., the company is not functionally comparable with the business of the assessee and it cannot be regarded as good comparable for the purpose of determination of arm s length price in respect of international transaction of the assessee the AO/TPO is directed to exclude the company from the set of comparables - The details of comparables have also been considered by the TPO in the set of four comparables from which, Motilal Oswal Investment Advisor Pvt. Ltd. is not a good comparable, the mean margin of the remaining three comparable comes to 24.99% in comparison to the assessee s margin of 23.29% - Since the assessee s margin is within the tolerance range of /- 5% of the mean margin, therefore, no adjustment on account of transfer pricing is required in respect of international transaction of the assessee Decided in favour of assessee.
Issues Involved:
1. Transfer Pricing Adjustment for Investment Advisory Services 2. Penalty Proceedings under Section 271(1)(c) Detailed Analysis: 1. Transfer Pricing Adjustment for Investment Advisory Services The primary issue in this appeal is the transfer pricing adjustment of Rs. 53,51,953 for investment advisory services rendered by the appellant to its overseas associated enterprise (AE). The appellant contends that no such adjustment is warranted and raises several grounds of appeal: 1.1 Rejection of Systematic Benchmarking Analysis: The appellant argues that the Deputy Commissioner of Income Tax (AO) and the Transfer Pricing Officer (TPO) erred in rejecting the systematic benchmarking analysis conducted by the appellant. The TPO cherry-picked Motilal Oswal Investment Advisors Pvt. Ltd. (MOIAPL) as a comparable company with high margins without adopting any search process. 1.2 Use of Latest Year Data: The appellant contends that the TPO and AO erred by requiring the use of the latest year data for comparable companies, contrary to transfer pricing regulations that require contemporaneous documentation. 1.3 Rejection of Functionally Similar Comparables: The appellant claims that the TPO and AO arbitrarily rejected functionally similar companies selected by the appellant on grounds such as functional dissimilarity, different accounting years, and lack of detailed segmental accounts. 1.4 Inappropriate Inclusion of MOIAPL: The appellant argues that MOIAPL is engaged in investment banking activities, which are significantly different from the non-binding investment advisory services rendered by the appellant. The appellant highlights several points to support this claim, including differences in employee cost ratio, sales turnover, risk profile, and export earnings. 1.5 Rejection of Comparable Companies: The appellant contends that the TPO and AO erred in rejecting Crisil Risk Infrastructure Solutions Ltd. and IDFC Investment Advisors Ltd. as comparables, despite their revenue schedules displaying income from advisory activities. 1.6 Philanthropic Objective: The appellant argues that it supports its parent company in achieving the group's philanthropic objective and that the AE earns nominal returns. Therefore, it is challenging to remunerate the appellant at par with profit-driven companies. 1.7 Role in Philanthropic Work: The appellant claims that the AO and TPO erred in considering that the AE alone carries out philanthropic work, ignoring the appellant's significant role in achieving the group's philanthropic objective. 1.8 Adjustments to Margins: The appellant asserts that the TPO and AO failed to appreciate the need for adjustments to the margins of comparable companies due to differences in functions performed, risk assumed, and accounting policies. 1.9 Working Capital Adjustment: The appellant argues that the TPO and AO did not account for working capital adjustments to remove the impact of differences in payables and receivables levels. Tribunal's Analysis: The Tribunal noted that the TPO rejected five of the eight comparables selected by the appellant and included MOIAPL, resulting in a mean margin of 39.44% compared to the appellant's margin of 23.29%, leading to an adjustment of Rs. 53,51,953. The Tribunal considered the appellant's argument that MOIAPL is not functionally comparable due to its engagement in investment banking and diversified operations, including private equity, mergers, and acquisitions. The Tribunal referred to a previous decision in the case of Carlyle India Advisors Pvt. Ltd. vs. DCIT, where it was held that MOIAPL, being registered as a merchant banker and engaged in diversified activities, could not be considered a comparable. The Tribunal found that the business profile of MOIAPL during the year under consideration was similar to that in the Carlyle case and thus not functionally comparable with the appellant's business. The Tribunal directed the AO/TPO to exclude MOIAPL from the set of comparables. With the exclusion of MOIAPL, the mean margin of the remaining comparables was 24.99%, which is within the +/- 5% range of the appellant's margin of 23.29%. Therefore, no transfer pricing adjustment was required. 2. Penalty Proceedings under Section 271(1)(c): The Tribunal did not address the issue of penalty proceedings under Section 271(1)(c) as it became academic in light of the decision on the transfer pricing adjustment. Conclusion: The Tribunal allowed the appeal of the assessee, directing the exclusion of MOIAPL from the set of comparables and concluding that no transfer pricing adjustment was required. The other grounds raised by the assessee were not decided as they became academic. The appeal was allowed, and the order was pronounced on 04-07-2014.
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