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2015 (11) TMI 1713 - AT - Income TaxTPA - determination of arm s length price of the international transaction of Provision of investment advisory related support services by the assessee company to its associated enterprise abroad - selection of comparable - Held that - The appellant company belongs to the world-wide Carlyle group which is primarily engaged in originating/structuring and acting as lend equity investor in management lead buyouts strategic equity investments equity private placements etc. and is primarily engaged in the business of managing investments of high net worth individuals/institutional investors. The Carlyle Group has also several individual funds and it is operating in more than 19 countries. Carlyle Hong Kong which is the holding company of the captioned assessee provides consulting services including investment advisory technology support management consultancy and other advisory services to the Carlyle Group concerns who are engaged in operating and managing of funds in the Asia Pacific region. The appellant-company which is operating in India since 2000 as a subsidiary of Carlyle Hong Kong provides Investment advisory related support services to Carlyle Honk Kong. Thus companies functionally dissimilar with that of assessee need to be rejected from final list.
Issues Involved:
1. Assessment of income and transfer pricing adjustments. 2. Exclusion and inclusion of comparable companies for determining the arm's length price. 3. Levying of interest under sections 234B, 234C, and 234D of the Income Tax Act. 4. Conformity of the assessment order with the directions of the Dispute Resolution Panel (DRP). Detailed Analysis: 1. Assessment of Income and Transfer Pricing Adjustments: The primary issue was the assessment of the appellant's income for the assessment year 2009-10 at INR 24,08,91,640 against the returned income of INR 12,32,08,017. The Assessing Officer (AO) and the Transfer Pricing Officer (TPO) made transfer pricing adjustments of INR 11,76,88,799 to the transfer price of the international transaction related to non-binding investment advisory and related support services. The appellant argued that the economic analysis/transfer pricing study was arbitrarily rejected, and the provisions of Rule 108(4) and judicial pronouncements advocating the use of multiple-year data were ignored. Additionally, the appellant contended that the AO erred in excluding ICRA Online Limited from the list of comparables and rejecting IDC India Limited as a comparable. 2. Exclusion and Inclusion of Comparable Companies: The substantive dispute centered on the determination of the arm's length price of the international transaction of providing investment advisory-related support services. The appellant used the Transaction Net Margin Method (TNMM) for benchmarking, which was not disputed. The TPO selected six comparables with an arithmetic mean of 40.455%. The appellant contested the inclusion of Motilal Oswal Investments Advisors Pvt. Ltd., IDFC Investment Advisors Ltd., and Kshitij Investment Advisory Co. Ltd., and the exclusion of IDC India Ltd. The tribunal upheld the exclusion of ICRA Online Ltd. based on the DRP's direction, noting that the service fee earned by ICRA Online Ltd. was less than the prescribed percentage of total revenue. The tribunal also excluded Motilal Oswal Investments Advisors Pvt. Ltd. due to its diversified activities and lack of segmental reporting. Similarly, IDFC Investment Advisors Ltd. was excluded because its business model differed from the appellant's, and it was engaged in managing funds with earnings based on the net assets of the fund plus a performance fee. Kshitij Investment Advisory Co. Ltd. was excluded due to the realignment of its investment advisory business, which impacted its financial results. 3. Levying of Interest under Sections 234B, 234C, and 234D: The appellant contested the levying of interest under sections 234B, 234C, and 234D of the Income Tax Act. However, this issue was not elaborated upon in the judgment, as the primary focus was on the transfer pricing adjustments and the inclusion/exclusion of comparable companies. 4. Conformity of the Assessment Order with the Directions of the DRP: The appellant raised an additional ground that the assessment order passed by the AO was not in conformity with the directions issued by the DRP. The AO initially did not exclude ICRA Online Ltd. from the final set of comparables, as directed by the DRP. However, this issue was rendered academic as the tribunal's decision on the merits found the entire addition on account of the determination of the arm's length price to be unsustainable. Conclusion: The tribunal directed the AO to re-compute the total income as per the tribunal's directions and as per law. The appeal of the appellant was partly allowed, and the appeal by the Revenue was dismissed. The tribunal's decision emphasized the importance of accurate comparability analysis and adherence to the directions of the DRP in transfer pricing cases.
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