2019 (2) TMI 1733 - AT - Income Tax

Assessee's Appeal Granted on Transfer Pricing, ESOP Costs, and Stock Exchange Payments

The Tribunal partly allowed the assessee's appeal, providing relief on transfer pricing adjustments, disallowances related to ESOP costs, and payments to ... TP adjustment - arm’s length price of international transaction with the Associated Enterprise (AE) pertaining to the provision of non–binding investment advisory and support service - HELD THAT:- Companies functionally dissimilar with that of assessee need to be deselected from final list. Disallowance of amortization of cost relating to employee’s stock option plan (ESOP) - HELD THAT:- As decided in own case Tribunal, while deciding the issue held that as per the decision of the Tribunal, Bangalore Bench, in Biocon Ltd. v/s DCIT [2013 (8) TMI 629 - ITAT BANGALORE] ESOP cost is allowable as deduction. Accordingly, the Tribunal allowed the deduction claimed by the assessee. Disallowance paid to the Stock Exchanges for non–confirmation of clearing house trade, client code modification, etc. - HELD THAT:- Similar disallowance made in assessment years 2009–10, the Tribunal [2015 (12) TMI 966 - ITAT MUMBAI] following the decision of the Hon'ble Jurisdictional High Court deleted the disallowance made on account of payment made to Stock Exchanges towards non–compliance of clearing house trade, client code modification, etc. Issues Involved:1. Transfer pricing adjustment for non-binding investment advisory services.2. Transfer pricing adjustment for Information Technology Enabled Services (ITES) segment.3. Disallowance of amortization of cost relating to Employee Stock Option Plan (ESOP).4. Disallowance of payment made to Stock Exchanges for non-confirmation of clearing house trade, client code modification, etc.Detailed Analysis:1. Transfer Pricing Adjustment for Non-Binding Investment Advisory Services:The assessee challenged the addition of Rs. 7,09,72,772 made on account of transfer pricing adjustment. The assessee, a wholly-owned subsidiary of Goldman Sachs (Mauritius) LLC, used the Transactional Net Margin Method (TNMM) with operating profit/operating cost (OP/OC) as the profit level indicator (PLI) for benchmarking. The Transfer Pricing Officer (TPO) rejected the assessee's comparables and selected Ladderup Corporate Advisory Pvt. Ltd. as a comparable, leading to the adjustment. The assessee argued that Ladderup Corporate Advisory Pvt. Ltd. is engaged in merchant banking and not comparable to its non-binding investment advisory services. The Tribunal agreed, citing previous decisions, and excluded Ladderup Corporate Advisory Pvt. Ltd. as a comparable. The Tribunal also directed the inclusion of Informed Technologies India Ltd. as a comparable, noting its functional similarity to the assessee.2. Transfer Pricing Adjustment for Information Technology Enabled Services (ITES) Segment:The assessee disputed the addition of Rs. 5,20,09,149 made on account of transfer pricing adjustment. The TPO rejected six of the ten comparables selected by the assessee and included four additional comparables, including Excel Infoways Ltd. The assessee argued for the inclusion of R. Systems International Ltd. and exclusion of Excel Infoways Ltd. The Tribunal found that Excel Infoways Ltd. failed the persistent loss-making/diminishing revenue filter and had closed its BPO segment, making it non-comparable. The Tribunal included R. Systems International Ltd. as a comparable, noting that the financial results for the relevant year could be ascertained from its quarterly reports. The Tribunal concluded that the inclusion of R. Systems International Ltd. and exclusion of Excel Infoways Ltd. would bring the assessee's profit margin within the acceptable range.3. Disallowance of Amortization of Cost Relating to Employee Stock Option Plan (ESOP):The assessee challenged the disallowance of ESOP costs. The Tribunal noted that in the assessee's own case for the assessment years 2009-10 and 2011-12, the ESOP cost was allowed as a deduction based on the decision in Biocon Ltd. v/s DCIT. The Tribunal followed the consistent view and allowed the assessee's claim by deleting the disallowance made by the Assessing Officer.4. Disallowance of Payment Made to Stock Exchanges for Non-Confirmation of Clearing House Trade, Client Code Modification, etc.:The assessee contested the disallowance of Rs. 19,99,644 paid to NSE and BSE, which the Assessing Officer treated as a penalty. The Tribunal observed that similar disallowances were deleted in the assessee's own case for the assessment years 2009-10 and 2011-12, following the decision of the Hon'ble Jurisdictional High Court. The Tribunal allowed the assessee's claim by deleting the disallowance made by the Assessing Officer.Conclusion:The Tribunal partly allowed the assessee's appeal, providing relief on the issues of transfer pricing adjustments and disallowances related to ESOP costs and payments to Stock Exchanges. The Tribunal emphasized the importance of functional similarity in selecting comparables and followed precedents to ensure consistency in its rulings.