TMI Blog2021 (11) TMI 683X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal which are the fact finding authorities- ITAT has not committed any perversity or applied incorrect principles to the given facts and when the facts and circumstances are properly analysed and correct test is applied to decide the issue at hand, then, we do not think that questions as pressed raises any substantial questions of law. - INCOME TAX APPEAL NO.1916 OF 2017 - - - Dated:- 15-11-2021 - K.R. SHRIRAM AMIT B. BORKAR, JJ Mr. Suresh Kumar for Appellant Mr. Nitesh Joshi a/w Mr. Rajesh Poojary i/b Mint Confreres for Respondent P.C. : 1. Appellant is impugning an order dated 16th September 2016 passed by the Income Tax Appellate Tribunal (ITAT), Mumbai. 2. Respondent filed its return of income on 7th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der, respondent filed an appeal before ITAT and ITAT was pleased to allow the appeal by an order dated 16th September 2016. It is this order, which is impugned in the appeal and the following 7 substantial questions of law have been proposed: (a) Whether the Ld. ITAT is right holding the activity of the assessee tobe mere investment Advisory activity ignoring the PAR analysis done by the TPO ? (b) Whether the Ld ITAT is right in accepting the internal nomenclature of the assessee and thereby ignoring the definitions of investment advisory as provided in the SHIM Regulations and also ignoring the functions and risks/liabilities associated with directorship of a company which has been relied upon by the IPO in the FAR analytic ? ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equent years, which include analysis for the AY.2010-2011 as well ? These 7 questions of law can be split into two parts, namely (a) to (e) in Part-1 and (f) and (g) in Part-2. 4. We have heard Mr. Suresh Kumar and Mr. Joshi and with their assistance considered the order of ITAT. 5. As regards first part, i.e., (a) to (e) are on the basis that respondent, in addition to investment advisory services, had also rendered portfolio management services (PMS). The ITAT in the impugned judgment, has come to a finding of fact that there was no evidence of respondent rendering any such additional services. The ITAT has further held that no separate PMS services needs to be benchmarked as the same is part and parcel of rendering of investmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e (A.E.), such exercise is required to be undertaken by the TPO on the basis of the facts and figures relating to comparable cases of other similarly placed entities, whose relevant data is available in the public domain. As per the provisions of the Act and the Rules, the assessee company is required to furnish its own Transfer Pricing Analysis and the list of chosen comparables which may or may not be agreed to by the Revenue Authorities and they would introduce some more comparables rejecting the comparables given by the assessee company by applying certain filters like Related Party Transactions (RPT) filter, turnover filter, export earnings filter, employee cost filter, etc to bring them within the comparable range of the cases of such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nothing but a matter of estimate of a broad and fair guess-work of the authorities based on factual relevant materials brought before the authorities i.e. the TPO, the DRP and the Tribunal, which are the fact finding authorities. (emphasis supplied) 8. It would be apposite to reproduce paragraphs 5, 6 and 7 of an unreported judgment of this court in The Pr. Commissioner of Income Tax-1 Vs. Barclays Technology Centre India Pvt Ltd, Dated 26th June 2018 ITXA No.1384 of 2015., which read as under: 5 In the above view, the finding of the Tribunal is entirely one of the fact and the Revenue has failed to show as to how the finding arrived at by the Tribunal is perverse in any manner. Nor has the Revenue even attempted to de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t impact significantly. 7. We hope the above observations would be kept in mind both by the Revenue and the Assessee who seek to prefer appeals from the orders of the Tribunal on Transfer Pricing particularly inclusion/exclusion of comparables. The Commissioner of Income Tax and the Assessee in general would do well to also review the appeals filed and withdraw the same, in case the only challenge therein is to finding of facts, if the same is without evidence of any perversity or is in the face of settled legal position. The counsel of the Revenue is directed to serve a copy of this order on the Principal Chief Commissioner of Income Tax within the State of Maharashtra for necessary action. (emphasis supplied) 9. In our vie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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