TMI Blog2018 (2) TMI 1803X X X X Extracts X X X X X X X X Extracts X X X X ..... 16 - - - Dated:- 21-2-2018 - Saktijit Dey And Ramit Kochar, JJ. Jayant Kumar for the Appellant. Porus Kaka and Divesh Chawla for the Respondent. ORDER Saktijit Dey, The aforesaid cross-appeals arise out of the assessment order passed under section 143(3) r/w section 144C(13) of the Income-tax Act, 1961 (for short the Act ) in pursuance to the directions of the Dispute Resolution Panel (DRP) for the assessment year 2011-12. 2. Though, in Ground Nos.1 to 8, the assessee has raised various issues relating to the transfer pricing adjustment made by the Transfer Pricing Officer (TPO) and partly upheld by the DRP, however, at the time of hearing, the learned Authorised Representative, Shri Porus Kaka, appearing for the assessee restricted his argument to rejection/selection of some of the comparables as raised in grounds no.3 and 5. Similarly, the only ground raised by the Revenue is with regard to exclusion by the DRP of Motilal Oswal Investment Advisors Ltd., as a comparable selected by the Transfer Pricing Officer. In view of the aforesaid, we will restrict ourselves to adjudicating the issues relating to selection/rejection of certain comparables as di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e difference between the average margin of the comparables and margin shown by the assessee, the Transfer Pricing Officer worked out upward adjustment of ₹ 14,40,06,104 to the arm's length price shown by eth assessee. As a consequence of adjustment worked out by the Transfer Pricing Officer, the Assessing Officer framed the draft assessment order adding the transfer pricing adjustment proposed by the Transfer Pricing Officer. The assessee objected to the draft assessment order before the DRP. 5. The DRP after considering the submissions of the assessee upheld the Transfer Pricing Officer's decision in rejecting the comparables selected by the assessee. However, accepting assessee's objection, the DRP excluded Motilal Oswal Investment Advisory Pvt. Ltd. from the list of comparables selected by the Transfer Pricing Officer. 6. Learned Authorised Representative submitted, ICRA Management Consulting Services Ltd. is functionally similar to the assessee as it is engaged in providing consultancy services in the area of strategy, risk management, process consulting transaction advisory, policy and regulation and development consulting. He submitted, this company ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ] 32 taxmann.com 23/214 Taxman 492/357 ITR 584 (Bom.) (ix) Carlyle India Advisors (P.) Ltd. v. Dy. CIT [2014] 43 taxmann.com 184 (Mum. - Trib.) (x) TPG Capital India (P.) Ltd. v. Dy. CIT [2017] 79 taxmann.com 101 (Mum. - Trib.) (xi) Warburg Pincus India (P.) Ltd. v. DCIT, ITA no.1612 (Mum.) of 2015; (xii) Warburg Pincus India (P.) Ltd. v. Asstt. CIT [2017] 78 taxmann.com 273 (Mum. - Trib.) (xiii) Temasek Holdings Advisors India (P.) Ltd. (supra) (xiv) Temasek Holdings Advisors India (P.) Ltd. (supra) (xv) Temasek Holdings Advisors India (P.) Ltd. (supra) (xvi) Temasek Holdings Advisors India (P.) Ltd. (supra) (xvii) Temasek Holdings Advisors (P.) Ltd. (supra) 8. Learned Authorised Representative submitted, in assessee's own case for assessment year 2006-07 while dismissing the Revenue's appeal, the Hon'ble Jurisdictional High Court has upheld the decision of the Tribunal in accepting IDC (India) Ltd. as a comparable on the reasoning that Carlyle India, wherein IDC (India) Ltd. was found to be a comparable, is functionally similar to the assessee. Learned Authorised Representative submitted, even in assessee's own case for asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tc. He submitted, this company has been rejected as a comparable in case of Actis Advisors (P.) Ltd. v. Asstt. CIT [2015] 55 taxmann.com 485 (Delhi). 11. So far as Ladderup Corporate Advisory Pvt. Ltd. is concerned, the learned Departmental Representative submitted that the company is providing functional corporate advisory services, hence, functionally similar to the assessee. Therefore, it has been rightly included as a comparable. Arguing against the exclusion of Motilal Oswal Investment Advisors Ltd., learned Departmental Representative referring to the observations of the Transfer Pricing Officer submitted that the company being a good comparable should not be rejected. 12. In the rejoinder, the learned Authorised Representative submitted that ICRA Management Consulting Services Ltd. and IDC (India) Ltd. were excluded by the Transfer Pricing Officer/DRP only on the ground of difference in skill set. He submitted, at this stage, the learned Departmental Representative cannot substitute the reasoning of Transfer Pricing Officer/DRP by making fresh argument on the functionality of the comparables which have never been examined at any stage. 13. So far as comparability of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear 2006-07, the Tribunal accepted this company as a comparable which was upheld by the Hon'ble Jurisdictional High Court while dismissing the appeal filed by the assessee. While upholding the decision of the Tribunal, the Hon'ble Jurisdictional High Court observed that since the non-binding advisory service provided by the assessee is similar to the service provided by Carlyle India Ltd., wherein, IDC (India) Ltd. is accepted as a comparable there is no reason to defer with the decision of the Tribunal. It is necessary to observe, in case of other assessees engaged in providing non-binding investment advisory services akin to the assessee for the very same assessment year, the Tribunal has held that IDC (India) Ltd. is a good comparable. In this context, we refer to the decisions of the Tribunal in case of AGM India Advisory (P.) Ltd. (supra) and Temasek Holdings Advisors India (P.) Ltd. (supra) Moreover, in assessee's own case in the earlier assessment years, this company having been found to be functionally similar was accepted as a comparable. In view of the aforesaid, we direct the Assessing Officer to include this company as a comparable. 16. Insofar as Ladderu ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
