2018 (1) TMI 931 - AT - Income Tax

Tribunal Partially Allows Assessee's Appeal on Transfer Pricing Analysis

Wells Fargo Real Estate Advisors Pvt. Ltd. (Previously known as Wachovia Management Services Private Limited) Versus DCIT-Circle-14 (3) (1), Mumbai

The Tribunal allowed the assessee's appeal in part, primarily on the grounds related to the inclusion and exclusion of comparables in the Transfer Pricing ... TPA - comparable selection criteria - Held that:- We find that the assessee is engaged in the business of providing non binding advisory services, that it has used TNMM to determine the ALP of the IT's, entered into by it with its AE. s., that PLI shown by it was OP/OC, that profit margin of the IT. s. for the year under consideration, on the basis of data of three AY's, was 15. 03%, thus companies functionally dissimilar with that of assessee need to be deselected from final list. Issues Involved:1. Exclusion and inclusion of certain comparables in Transfer Pricing (TP) analysis.2. Application of +/- 5% variation.3. Interest levied under section 234B of the Act.4. Initiation of penalty under section 271(1)(c) of the Act.Detailed Analysis:1. Exclusion and inclusion of certain comparables in Transfer Pricing (TP) analysis:The assessee, engaged in non-binding investment advisory services, contested the Assessing Officer's (AO) determination of its income, which included a Transfer Pricing (TP) adjustment of Rs. 4.89 crores. The Transfer Pricing Officer (TPO) had rejected the comparables selected by the assessee and introduced three new comparables with an arithmetic mean margin of 55.68%. The Dispute Resolution Panel (DRP) upheld the TPO's rejection and inclusion decisions. The assessee cited the case of Temasek Holdings Advisers India Private Ltd., where the Tribunal had approved the comparables selected by the assessee for similar services.The Tribunal noted that the assessee had used the Transactional Net Margin Method (TNMM) and selected comparables with a net profit margin of 15.03%. The TPO's selected comparables had significantly higher margins, leading to a substantial TP adjustment. The Tribunal found that in the case of Temasek Holdings, the Tribunal had dealt with similar facts and had included ICRA Management Consultancy Services Limited and Informed Technologies Limited as valid comparables, while rejecting Ladderup Corporate Advisory Private Limited and Motilal Oswal Private Equity Advisors India Private Limited due to functional differences.The Tribunal followed the precedent set in Temasek Holdings, concluding that the DRP was not justified in rejecting the comparables selected by the assessee and including the two new comparables. Consequently, the TP adjustment was recalculated, and the appeal on this ground was decided in favor of the assessee.2. Application of +/- 5% variation:Given the Tribunal's decision on the comparables, the issue of +/- 5% variation became moot. The Tribunal did not find it necessary to adjudicate this ground separately.3. Interest levied under section 234B of the Act:The issue of interest under section 234B was deemed consequential to the main TP adjustment. Since the primary grounds were decided in favor of the assessee, this ground did not require separate adjudication.4. Initiation of penalty under section 271(1)(c) of the Act:The Tribunal found the ground related to the initiation of penalty under section 271(1)(c) to be premature and dismissed it without adjudication.Conclusion:The Tribunal allowed the assessee's appeal in part, primarily on the grounds related to the inclusion and exclusion of comparables in the TP analysis. The appeal was decided in favor of the assessee, leading to a recalibration of the TP adjustment and rendering other grounds either moot or premature. The order was pronounced on 17th January 2018.