2014 (2) TMI 648 - AT - Income Tax

Appeal success: New comparable added, direction for reassessment under Section 92C(2)

The Tribunal partly allowed the appeal, directing the exclusion of Motilal Oswal Investment Advisors Pvt. Ltd. as a comparable and inclusion of IDC ... Determination of ALP u/s 92C(2) r.w. Section 92C(2A) of the Act - Selection of Comparables - Whether Motilal Oswal Investment Advisors Pvt. Ltd. can be considered as a comparable for the determination of ALP – Held that:- The three comparables considered by the TPO shows that M/s. Future Capital Investment Advisors Ltd., has operating profit at 21.79% whereas OPM of Motilal Oswal Investment Advisors Pvt. Ltd. is 72.33% - The comparables used by the TPO themselves are showing extreme OPM - A perusal of the Director’s report of Motilal Oswal Investment Advisors Pvt. Ltd. shows that the company has completed 23 assignments successfully as against 14 completed in the immediately preceding year - the income from operations have been shown only as advisory fees whereas it is admittedly an undisputed facts that the said company is engaged in diversified activities - Segmental reporting is not available. Profit and loss account appears to be only of consolidated accounts - The company is registered with SEBI as a merchant banker and the Director’s report show that it is into takeover , acquisitions, disinvestments etc. - In the absence of specific data it is not possible to make comparison - the company being into merchant banking and cannot be considered as a comparable – thus, the AO is directed not to consider Motilal Oswal Investment Advisors Pvt. Ltd. as a comparable for the determination of ALP and redetermine the Arm’s Length price excluding Motilal Oswal Investment Advisors Pvt. Ltd. – Decided partly in favour of Assessee Issues Involved:1. Assessment of income under normal provisions.2. Adjustment to the transfer price.3. Economic analysis for determining arm's length price.4. Selection of comparables.5. Filters adopted by the Transfer Pricing Officer (TPO).6. Inclusion of IDC (India) Ltd. as a comparable.7. Rejection of Transfer Pricing documentation.8. Contemporaneous data for Transfer Pricing study.9. Benefit of the 5 percent range under Section 92C(2).Detailed Analysis:1. Assessment of Income Under Normal Provisions:The appellant contested the assessment of income at Rs 15,93,95,480 as against the returned income of Rs 7,35,95,578. The adjustment was based on directions from the Dispute Resolution Panel (DRP) upholding the adjustment to the transfer price proposed by the TPO.2. Adjustment to the Transfer Price:The appellant argued that the adjustment of Rs 8,55,51,779 related to investment advisory services was not at arm's length according to Sections 92C(1) and 92C(2) of the Act. The appellant's economic analysis to determine the arm's length price was not accepted by the AO/DRP/TPO, who made modifications in a subjective and arbitrary manner.3. Economic Analysis for Determining Arm's Length Price:The appellant's economic analysis was rejected by the AO/DRP/TPO, who instead conducted a fresh search using incorrect filters. The appellant's analysis showed a mean return on total cost of 12.02%, while the appellant's transactions achieved a return of 14.60%, indicating compliance with arm's length standards.4. Selection of Comparables:The AO/DRP/TPO's selection of comparables was contested. The appellant argued that Motilal Oswal Investment Advisors Pvt. Ltd. was not comparable due to its diversified business and SEBI registration as a merchant banker. The DRP directed the inclusion of IDC (India) Ltd., previously accepted by the Tribunal and High Court for the preceding year.5. Filters Adopted by the TPO:The appellant challenged the arbitrary filters used by the TPO, including the rejection of comparables with turnover below one crore. The DRP upheld the TPO's filters but directed the inclusion of IDC (India) Ltd.6. Inclusion of IDC (India) Ltd. as a Comparable:The DRP directed the inclusion of IDC (India) Ltd. as a comparable, following the Tribunal's findings for the previous year. The Tribunal confirmed this direction, instructing the AO to include IDC (India) Ltd. for determining the arm's length price.7. Rejection of Transfer Pricing Documentation:The appellant's Transfer Pricing documentation was rejected by the AO/DRP/TPO. The appellant argued that the documentation was prepared according to the Act and Rules.8. Contemporaneous Data for Transfer Pricing Study:The AO/DRP/TPO concluded that the data used by the appellant for the Transfer Pricing study was not contemporaneous, leading to its rejection.9. Benefit of the 5 Percent Range Under Section 92C(2):The appellant argued that the AO/TPO failed to provide the benefit of the 5 percent range as envisaged under the proviso to Section 92C(2). The DRP found that the insertion of Section 92C(2A) clarified the position of the law, negating the need for further comment.Conclusion:The Tribunal directed the AO to exclude Motilal Oswal Investment Advisors Pvt. Ltd. as a comparable due to its diversified business and lack of segmental reporting. The AO was instructed to redetermine the arm's length price, including IDC (India) Ltd. and excluding Motilal Oswal Investment Advisors Pvt. Ltd., in compliance with Section 92C(2) r.w. Section 92C(2A). The appeal was partly allowed, with specific grievances addressed and directions provided for reassessment.Order Pronounced:The appeal filed by the assessee was partly allowed, with the order pronounced on 7th February 2014.