2019 (3) TMI 1883 - AT - Income Tax

Transfer pricing adjustments on investment advisory services and comparables selection for arm's length prices

Tata Asset Management Ltd. Versus Dy. Commissioner of Income Tax Circle–2 (3) ) (1), Mumbai

The case involved transfer pricing adjustments on investment advisory services and the selection/rejection of comparables for benchmarking arm's length ... TP Adjustment - comparable selection - comparability of ICRA Online Ltd. - HELD THAT:- The comparability of ICRA Online Ltd. was considered by the Tribunal in case of Temasek Holding Advisors India Pvt. Ltd.[2013 (9) TMI 48 - ITAT MUMBAI] . The Tribunal accepted this company as comparable. That being the case, we direct the Assessing Officer to include this company as a comparable. IDC (India) Ltd. - Tribunal is in favour of including this company as a comparable in case of an investment advisory service provider. See M/S. GENERAL ATLANTIC PVT. LTD. VERSUS THE DCIT-3 (1) , AAYAKAR BHAVAN, MUMBAI [2015 (11) TMI 1506 - ITAT MUMBAI] Informed Technologies India Ltd. - Hon'ble Jurisdictional High Court in CIT v/s Temasek Holdings Advisors India Pvt. Ltd [2013 (9) TMI 48 - ITAT MUMBAI] has upheld the decision of the Tribunal accepting this company as a comparable to an investment advisory service provider. There being no material difference in facts involved on the basis of which the Tribunal in Temasek Holdings Advisors India Pvt. Ltd. (supra), has accepted this company as a comparable, we hold that Informed Technologies India Ltd., should be treated as comparable. Motilal Oswal Private Equity Advisors Pvt. Ltd.- As decided in BLACKSTONE ADVISORS INDIA PVT. LTD. AND VICE-VERSA [2018 (11) TMI 1732 - ITAT MUMBAI] upheld the decision of the learned Commissioner (Appeals) in rejecting this company as a comparable to an investment advisory service provider. Thus we direct the Assessing Officer to exclude this company from the list of comparables. Ladderup Corporate Advisory Pvt. Ltd. - This company has been rejected as a comparable to an investment advisory service provider. Though, these decisions of the Tribunal pertain to different assessment years, however, the basic facts on which the company has been rejected as a comparable remain same. In view of the aforesaid, we direct the Assessing Officer to exclude Ladderup Corporate Advisory Pvt. Ltd. from the list of comparable. Assessee’s appeal is partly allowed. Issues Involved:1. Transfer pricing adjustment on investment advisory services.2. Selection/rejection of comparables for benchmarking arm's length price.Issue-wise Detailed Analysis:1. Transfer Pricing Adjustment on Investment Advisory Services:The primary issue in this appeal is the addition made on account of transfer pricing adjustment amounting to Rs. 43,02,044 for the assessment year 2011-12. The assessee, an Indian company and a wholly-owned subsidiary of Tata Sons Ltd. and Tata Investment Corporation Ltd., provides investment advisory and management services to its overseas Associated Enterprise (AE), Tata Mauritius. The dispute pertains to the adjustment made to the arm's length price of the investment advisory services provided to the AE.The assessee had benchmarked the arm's length price using the Transactional Net Margin Method (TNMM) and selected five comparables with an average net cost-plus margin of 12.26%. Since the assessee's margin was 20%, it claimed the transaction was at arm's length. However, the Transfer Pricing Officer (TPO) rejected the comparables selected by the assessee and chose three new comparables with an arithmetic mean of 55.68%, leading to an upward adjustment of Rs. 47,34,638. The Dispute Resolution Panel (DRP) agreed with the TPO's selection, except for one comparable, Motilal Oswal Investment Advisors Pvt. Ltd., which was directed to be excluded.2. Selection/Rejection of Comparables:The core dispute revolves around the selection and rejection of certain comparables for determining the arm's length price.i) ICRA Management Consulting Services Ltd.:The assessee argued that this company is functionally identical as it provides advisory services. The Tribunal noted that this company has been accepted as a comparable in various cases by the Hon'ble Jurisdictional High Court and different Benches of the Tribunal. The Tribunal directed the Assessing Officer to include this company as a comparable.ii) ICRA Online Ltd., IDC (India) Ltd., and Informed Technologies India Ltd.:The Tribunal accepted ICRA Online Ltd. as a comparable based on the Hon'ble Jurisdictional High Court's decision in Temasek Holding Advisors India Pvt. Ltd. For IDC (India) Ltd., the Tribunal noted its consistent acceptance as a comparable in similar cases and directed its inclusion. Informed Technologies India Ltd. was also directed to be included as a comparable, referencing the Hon'ble Jurisdictional High Court's decision in Temasek Holdings Advisors India Pvt. Ltd.iii) Ladderup Corporate Advisory Pvt. Ltd. and Motilal Oswal Private Equity Advisors Pvt. Ltd.:The assessee objected to these companies, arguing they were engaged in merchant/investment banking, making them functionally dissimilar. The Tribunal agreed, citing previous decisions where these companies were excluded as comparables for investment advisory service providers. The Tribunal directed the exclusion of these companies from the list of comparables.The Tribunal concluded by directing the Assessing Officer to compute the adjustment, if any, after implementing the directions provided. The appeal was partly allowed, and the order was pronounced in the open Court on 15.03.2019.