TaxTMI 
TaxTMI 
2019 (6) TMI 1003
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.... and gain of the business?" 2. We notice that the revenue has suggested following additional questions:- "i. Whether on law and in the facts of the instance case, was the Tribunal right in directing the AO to exclude Motilal Oswal Investment Advisory Pvt. Ltd. from the list of comparables, when the DRP has in this years found that the major source of revenue came from financial Advisory services and not from any activity of merchant banking. Assessee company itself has reported in its annual report income from operations under the head Advisory fees a fact that has not been controverted by the Respondent company? ii. Whether on law and in the facts of the instance case, was the Tribunal right in directing the AO to exclude Bresc....
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....ase, was the Tribunal right in directing the AO to exclude Axis Private Equity Ltd from the list of comparables, when the DRP has in this years found that the functions performed by this company are broadly similar to the functions performed by tested party? vii. Whether on the facts and in the circumstances of the case and in law, the ITAT was right in holding that the penalty was on account of irregularities committed by the assessee's client without appreciating the facts that non compliance to clearing house trades and trades and client code modification are default attributable to the assessee company majorly and not to its client?" 3. All these questions arise out of transfer pricing adjustment in case of the respondent-assessee. I....
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.... 3 (Bombay). This question is therefore, not considered. 5. In relation to question No.ii, we notice that the Tribunal had cited proper reasons for discarding this comparable. It was noticed that the audit report of Brescon Advisors shows that its income is earned from debt realization and debt syndication. The company also makes significant investments using its own funds. The Tribunal relied on its earlier decision holding that the company which mostly uses its own investments cannot be compared with the present case. The Tribunal also observed that overall profile of the company was not functionally similar. We are broadly in agreement with the view of the Tribunal. The Tribunal has cited proper reasons by discarding Brescon Advisors Pr....
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....ny only on the ground that same was included by the assessee in its transfer pricing study. The Tribunal was of the opinion that this cannot be a ground to bind the assessee. It was open for the assessee to bring correct facts on record and claim the exclusion of the said instance. 9. This view has been consistently taken by this Court in several orders. No question of law in this respect therefore arises. 10. The question No.vi pertains to an instance of one Axis Private Equity Limited. In this context, the Tribunal noted that the said company was engaged in managing directly or indirectly investment in mutual fund, venture capital fund etc. It was noticed that the company had acted as Investment Manager of Axis Infrastructure fund and i....