2016 (4) TMI 88 - HC - Income Tax

Appeal admitted on the substantial question of law at question no. (c). Whether on the facts and circumstances of the case and in law, the Tribunal was justified in allowing the payment of Royalty by holding that any payment made with the approval of RBI has to be considered as being at Arm s Length Price ?

Summary

Issues involved:
1. Inclusion of M/s. Gillanders Arbuthnot & Co. Ltd. as a comparable
2. Exclusion of M/s. Engineers India Ltd. from the list of comparables
3. Treatment of royalty payment as Arm's Length Price

Analysis:
1. Inclusion of M/s. Gillanders Arbuthnot & Co. Ltd. as a comparable:
- The respondent assessee contested the exclusion of M/s. Gillanders Arbuthnot & Co. Ltd. as a comparable due to its alleged primary engagement in cotton and man-made fiber yarn trading. However, evidence showed the company also had an Engineering Division involved in turnkey projects with substantial revenue.
- The Tribunal found the TPO's exclusion erroneous as M/s. Gillanders Arbuthnot & Co. Ltd. did engage in turnkey projects, meeting the criteria for comparability.
- The Tribunal's factual findings were deemed reasonable, as the Revenue failed to demonstrate any inaccuracies or perversions in the decision, leading to the dismissal of this issue without raising substantial legal questions.

2. Exclusion of M/s. Engineers India Ltd. from the list of comparables:
- The respondent challenged the inclusion of M/s. Engineers India Ltd. as a comparable, arguing that its revenue from public sector projects, driven by factors beyond profit motive, made it incomparable.
- The Tribunal agreed that Engineers India Ltd. was not a suitable comparable due to its project nature and revenue sources, exceeding the 25% filter used for related party transactions.
- The Tribunal's decision was upheld as reasonable, with no justification presented for interference, resulting in the rejection of this issue without raising substantial legal questions.

3. Treatment of royalty payment as Arm's Length Price:
- The Tribunal allowed a royalty payment under RBI approval to be considered at Arm's Length Price, leading to a significant adjustment in the respondent's ALP determination.
- This issue was admitted for appeal on the substantial question of law, indicating a need for further examination and clarification in subsequent proceedings.

The judgment provides a detailed analysis of the issues raised concerning the selection of comparables and the treatment of royalty payments under transfer pricing regulations. While some issues were dismissed due to lack of substantial legal questions, others were admitted for further review, emphasizing the importance of accurate comparability analysis and ALP determination in transfer pricing assessments.