2018 (7) TMI 52 - HC - Income Tax

Appeals under s.260-A limited to ex facie perverse findings; mere dissatisfaction with ALP or comparables not enough

Pr. Commissioner Of Income Tax (Central) And Dy. Commissioner Of Income Tax Circle-6 (1) (2) Versus M/s Swiss Re Global Business Solutions India Private Limited.

The HC held that appellate review under s.260-A is not available merely because the assessee is dissatisfied with the Tribunal's factual findings on ... TPA - comparability of certain companies selected by the TPO and consequent adjustment made in respect of ALP of international transactions - substantial question of law or fact - Held that:- There may be cases where the Tribunal giving its own reasons and findings has found certain comparables to be good comparables to arrive at an ‘Arm’s Length Price’ in the case of the assessee with which the assessee may not be satisfied and have filed such appeals before this Court. Therefore we clarify that mere dissatisfaction with the findings of facts arrived at by the learned Tribunal is not at all a sufficient reason to invoke Section 260-A of the Act before this Court. The controversy involved herein is no more res integra in view of the decision of this Court in [2018 (6) TMI 1327 - KARNATAKA HIGH COURT], wherein it has been observed that unless the finding of the Tribunal is found ex facie perverse, the Appeal u/s. 260-A of the Act, is not maintainable.- Decided against revenue Issues Involved:1. Exclusion of comparables in determining the Arm's Length Price (ALP).2. Applicability of turnover filter in selecting comparables.3. Determination of substantial questions of law under Section 260-A of the Income Tax Act.Issue-wise Detailed Analysis:1. Exclusion of Comparables in Determining the Arm's Length Price (ALP):The primary issue in this case was whether the Income Tax Appellate Tribunal (ITAT) was correct in excluding certain companies, namely M/s. Universal Print Systems Ltd, Informed Technologies India Ltd, Infosys BPO Ltd, M/s. Microgenetics Systems Ltd, TCS E-Serve Ltd, and BNR Udyog Ltd, from the list of comparables for determining the ALP. The Tribunal found that the turnover of these companies was significantly higher than that of the assessee, making them incomparable. The Tribunal relied on the Hon’ble Bombay High Court's judgment in M/s. Pentair Water India Pvt. Ltd., which held that companies with high turnovers cannot be compared with those with significantly lower turnovers. The Tribunal also referenced similar decisions by the Punjab and Haryana High Court and its own consistent view in previous cases, establishing that companies with turnovers more than ten times higher or lower than the assessee's should be excluded.2. Applicability of Turnover Filter in Selecting Comparables:The Tribunal applied a turnover filter to determine comparability, stating that companies with turnovers more than ten times higher or lower than the assessee's should be excluded. The Tribunal's decision was based on the assessee's turnover of Rs. 71.37 crores, leading to the exclusion of companies with turnovers less than Rs. 7.1 crores and more than Rs. 713 crores. This approach was consistent with previous Tribunal decisions and was upheld by the Hon'ble High Court, which found no infirmity in the Tribunal's application of the turnover filter.3. Determination of Substantial Questions of Law under Section 260-A of the Income Tax Act:The High Court observed that the controversy was no longer res integra, referencing its own decision in I.T.A. Nos. 536/2015 and 537/2015. The Court emphasized that unless the Tribunal's findings were ex facie perverse, an appeal under Section 260-A was not maintainable. The Court elaborated on the scheme of assessment under Chapter X related to Transfer Pricing, highlighting the roles of the Transfer Pricing Officer (TPO) and the Dispute Resolution Panel (DRP). The Court stressed that the Tribunal is the final fact-finding body, and its decisions on factual matters, such as the selection of comparables, are binding unless shown to be perverse. The Court cited several precedents from different High Courts, including Madras, Delhi, and Bombay, which held that factual determinations by the Tribunal do not give rise to substantial questions of law unless there is a clear perversity in the findings.Conclusion:The High Court concluded that the appeal did not raise any substantial question of law, as the Tribunal's findings were based on a thorough analysis of facts and consistent application of legal principles. The Court dismissed the appeal, reiterating the need for finality in the Tribunal's factual determinations and emphasizing that mere dissatisfaction with the Tribunal's findings is insufficient to invoke Section 260-A of the Income Tax Act. The Court's decision underscores the importance of adhering to established legal standards and the limited scope of judicial review in such matters.