2019 (3) TMI 428 - HC - Income Tax

Exclusion of Companies from Comparables List Upheld: Arm's Length Price Determination

Pr. Commissioner of Income Tax-14, Mumbai Versus M/s. Pfizer Limited

The court upheld the Tribunal's decision to exclude M/s. SIRO, Choksi Laboratories Ltd, and Syngene International Pvt Ltd from the comparables list for ... TP adjustment - Comparable selection criteria - exclude the comparables of SIRO Clinpharm Pvt Ltd. Assessee is a company engaged in manufacture and sale of pharmaceutical products - as per revenue SIRO Clinpham Pvt Ltd included as comparable by the respondent itself in its transfer pricing study and therefore, bound by it - HELD THAT:- If an assessee in view of mistake or an incorrect advice does include and / or exclude a company from the list of comparables, it is not irrevocable / irreversible. Thus, if on facts, the assessee is able to establish that the company if sought to include is not comparable, it is not to be included in the list of comparable. Thus, there is no merit in the first objection on behalf of the Revenue. So far as the second objection Revenue invited our attention to the fact that the Tribunal by its order dated 8.3.2013 for assessment year 2002-03 had accepted M/s. SIRO in its list of comparables to determine the ALP of the respondent. However, in view of the difference between the business model between M/s. SIRO and the respondent, the Tribunal had restored the issue to the Assessing Officer for appropriate adjustment while determining the ALP. This was so because M/s. SIRO's business model is based on inhouse activity while that of the respondent is based on outsourcing activity. This order of the Tribunal dated 8.3.2013 was challenged before this Court by the Revenue being Income Tax Appeal No. 2183 of 2013 for being restored to the Assessing Officer. However, the same was dismissed by this Court on 27.6.2016. However, the order dated 8.3.2013 in respect of assessment year 2002-03 was not challenged by the respondent assessee - no justification for the impugned order of the Tribunal to exclude M/s. SIRO from the list of comparables M/s. Choksi Laboratories Ltd - It is to be noted that on 26.3.2018, this Court in the case of CIT Vs. Aptara Technology P Ltd [2018 (4) TMI 404 - BOMBAY HIGH COURT] had held that the company which outsources it work is not comparable for ALP determination with a company that does the activity inhouse. Therefore, no fault can be found with the impugned order of the Tribunal in applying the binding decision of this Court. Therefore, in view of the decision of this Court in Aptara Technology P Ltd (supra), the question as proposed to the extent it seeks to include M/s. SIRO does not give rise to any substantial question of law. Thus, not entertained. M/s. Syngene International Pvt Ltd - This entity is wholly owned subsidiary of M/s. Bicon Ltd and is having substantial related party transactions. This fact has not been disputed by the Revenue before the Tribunal nor before us. Thus, the question of including M/s. Syngene International P Ltd would not arise in determining the ALP of the respondent assessee transactions with its A.Es. Therefore, the concurrent finding of facts by the Commissioner of Income Tax (Appeals) as well as the Tribunal in excluding this entity cannot be faulted with in the absence of the Revenue showing it to be perverse. Thus, the question as proposed to the extent of seeking to include M/s. Syngene International P Ltd in the list of comparable, does not give rise to any substantial question of law. Issues:Challenge to Tribunal's order on exclusion of comparables for determining Arm's Length Price (ALP) of international transactions.Analysis:1. SIRO Clinpham Pvt Ltd (M/s. SIRO): The appellant argued that M/s. SIRO should be considered as comparable for determining ALP due to its inclusion in the transfer pricing study and past Tribunal's order. However, the court held that an assessee can withdraw a company from comparables list if not suitable. The difference in business models between M/s. SIRO and the respondent justified its exclusion. The court cited relevant case laws to support the decision, emphasizing that a change in law and business model differences make entities non-comparable. Thus, the Tribunal's decision to exclude M/s. SIRO was upheld.2. Choksi Laboratories Ltd: Both parties agreed that Choksi Laboratories had a different business model from the respondent, making them non-comparable. The court referred to previous decisions and upheld the Tribunal's exclusion of Choksi Laboratories as a comparable entity for ALP determination.3. Syngene International Pvt Ltd: The Tribunal's decision to exclude Syngene International was based on it being a wholly owned subsidiary with substantial related party transactions. The Revenue did not dispute this fact. The court agreed with the Tribunal's decision, stating that including Syngene International in the comparables list was not necessary for determining ALP. The court found no fault in the Tribunal's decision and dismissed the appeal.In conclusion, the court found no substantial question of law in the issues raised by the Revenue regarding the exclusion of the three entities from the comparables list for determining the Arm's Length Price of the international transactions. Therefore, the appeal was dismissed based on the detailed analysis and explanations provided for each issue.