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2017 (9) TMI 1155 - AT - Income TaxTPA - selecting a comparable - Held that - Following the decision rendered by the coordinate Bench of the Tribunal in case SunGard Solutions (India) (P.) Ltd. (2014 (12) TMI 429 - ITAT PUNE) and the fact that when the TPO has himself adopted the filter of 25% of RPT for the purpose of excluding a company from the list of comparables, he cannot arrive at a logical computation for benchmarking the international transaction by selecting a comparable having 36.74% of its total expenses with related parties. So, we are of the considered view that Motilal Oswal Investment Advisors Pvt. Limited is not a suitable comparable, hence ordered to be excluded. LIBOR or PLR rate applicability - adjustment qua the delayed receipt of advisory fees - Held that - Ratio of the judgment CIT-I vs. Cotton Natural (I) (P.) Ltd. (2015 (3) TMI 1031 - DELHI HIGH COURT) that PLR rate as applied by TPO/CIT (A) are not applicable for determining interest rate rather LIBOR should be applied to compute the interest on the delayed payment of ₹ 1.13 lakhs. So, in these circumstances, grounds determined in favour of the assessee. Addition on account of bonus by the taxpayer to its Managing Director and Director who were also shareholder of the assessee in the ratio of 2 1 u/s 36(1)(ii) - Held that - As in assessee s own case for AY 2006-07 the deduction u/s 36(1)(ii) in respect of payment of bonus to the aforesaid shareholder/Director who are also major shareholder in the company with 50% shareholding of each is allowable deduction as there is no change in the shareholding pattern during the year under assessment, hence ground is determined in favour of the assessee. Exclusion of M/s. Keynote Corporate Services Ltd. as unsuitable comparable - Held that - Revenue s contention that only the shareholding pattern of M/s. Keynote Corporate Services Ltd. is changed with amalgamation which has not affected the profit is not tenable in the face of uncontroverted fact that the profit margin of assessee company has raised up to 145% during the year under assessment which is extremely volatile and abnormal and is due to the amalgamation and merger. Moreover, launch of ESOP Division which focused on designing and implementing stock option scheme for corporate, the business model of comparable company has undergone a change. So, we are of the considered view that the ld. CIT (A) has rightly excluded M/s. Keynote Corporate Services Ltd. as unsuitable comparable.
Issues Involved:
1. General nature of the order. 2. Exclusion of Motilal Oswal Investment Advisors Pvt. Limited as a comparable. 3. Recharacterization of delayed advisory fees as a deemed loan and interest adjustment. 4. Benchmarking delay in receipt of advisory fees using the prime lending rate. 5. Application of prescribed methods for benchmarking delay in receipt of advisory fees. 6. Disallowance of bonus paid to employees/shareholders under Section 36(1)(ii) of the Income Tax Act. 7. Ignoring judicial precedents. 8. General grounds of appeal. 9. Inclusion of M/s. Keynote Corporate Services Ltd. as a comparable. Detailed Analysis: 1. General Nature of the Order: - Ground No.1 is general in nature and does not require any adjudication. 2. Exclusion of Motilal Oswal Investment Advisors Pvt. Limited as a Comparable: - The assessee argued that Motilal Oswal Investment Advisors Pvt. Limited should be excluded due to substantial Related Party Transactions (RPT) of 36.74%. - The Tribunal noted that the TPO had set a filter to exclude companies with more than 25% RPT. - The Tribunal referenced the case of SunGard Solutions (India) (P.) Ltd. vs. DDIT, which supported excluding companies with high RPT. - Consequently, Motilal Oswal Investment Advisors Pvt. Limited was deemed unsuitable as a comparable and ordered to be excluded. 3. Recharacterization of Delayed Advisory Fees as a Deemed Loan and Interest Adjustment: - The TPO recharacterized the delay in receiving advisory fees as a loan and made an adjustment of ?11,28,585/- for interest. - The CIT(A) upheld this adjustment, referencing the case of Cheil India Private Limited. - The Tribunal noted that the delay was only 4-5 days and in most cases, the fees were received in advance. - The Tribunal ruled that the prime lending rate (PLR) was not applicable and instead, the LIBOR rate should be applied, as per the judgment in CIT-I vs. Cotton Natural (I) (P.) Ltd. - Therefore, the Tribunal ruled in favor of the assessee on this issue. 4. Benchmarking Delay in Receipt of Advisory Fees Using the Prime Lending Rate: - The Tribunal reiterated that the PLR rate was not applicable for determining interest on delayed payments. - Instead, the LIBOR rate should be applied, following the judgment in CIT-I vs. Cotton Natural (I) (P.) Ltd. - Grounds No.3, 4, and 5 were determined in favor of the assessee. 5. Application of Prescribed Methods for Benchmarking Delay in Receipt of Advisory Fees: - The Tribunal found that the TPO did not apply any of the five prescribed methods under Section 92C(1) of the Act for benchmarking the delay in receipt of advisory fees. - The Tribunal ruled in favor of the assessee on this issue as well. 6. Disallowance of Bonus Paid to Employees/Shareholders Under Section 36(1)(ii) of the Income Tax Act: - The AO disallowed ?2,16,36,500/- paid as a bonus to the Managing Director and Director, who were also shareholders. - The Tribunal referenced its own decision in the assessee’s case for AY 2006-07, which was based on the Delhi High Court judgment. - The Tribunal ruled that the bonus paid was allowable as a deduction under Section 36(1)(ii) since it was not paid as a dividend. - Ground No.6 was determined in favor of the assessee. 7. Ignoring Judicial Precedents: - Grounds No.7 and 8 were general in nature and did not require specific adjudication. 8. General Grounds of Appeal: - Grounds No.7 and 8 were general in nature and did not require specific adjudication. 9. Inclusion of M/s. Keynote Corporate Services Ltd. as a Comparable: - The Revenue sought to include M/s. Keynote Corporate Services Ltd. as a comparable. - The CIT(A) excluded this company due to its volatile and abnormal profit margins, which were influenced by alliances and business restructuring. - The Tribunal noted that the company’s profit margins were extremely volatile and abnormal due to amalgamation and restructuring. - The Tribunal upheld the CIT(A)’s decision to exclude M/s. Keynote Corporate Services Ltd. as a comparable. Conclusion: - The appeal of the assessee was allowed, and the appeal of the Revenue was dismissed. - Order pronounced in open court on September 19, 2017.
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