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Order u/s.254(1)of the Income-tax Act,1961(Act) लेलेलेलेखा सद�य खा सद�य खा सद�य, राजे�� के अनुसार खा सद�य राजे�� के अनुसार राजे�� के अनुसार/ PER Rajendra A.M.- राजे�� के अनुसार Challenging the order dated 10.12.14 of the Assessing Officer (AO), passed in pursuance of the direction of Dispute Resolution Panel(DRP),dt.27.10.2014,the assessee has filed the present appeal.Assessee-company,engaged in the business of investment advisory services, filed its return of income on 8.10.2010,declaring income of Rs.3.62 crores.The AO completed the assessment u/s.143(3) r.w.s.144C(13)of the Act determined its income at Rs.7.54 crores. During the assessment proceedings,the AO found that the assessee had entered into International Transactions (IT.s) with its AE.s. He made a reference to the Transfer Pricing Officer (TPO),who made an upward adjustment of Rs.3.91 crores.The AO proposed the said addition in his draft order that was challenged by the assessee before the DRP.The AO, after receiving direction of DRP made an adjustment of Rs.3,91,74,434/- to the total income of the assessee. 2.Effective Ground of Appeal is about including Motilal Oswal Investment Advisors Pvt. Ltd.(MOIAPL),IDFC Investment Advisors Limited(IDFC)and ICRA Online Ltd.(ICRA-O)as comparables for determining the Arms Length Price (ALP). During the Transfer pricing proceeding,the TPO found that the assessee was providing investment advisory services, pursuant to the advisory agreement entered into with its Mauritius AE ,that the AE belonged to the Mount Kellet Group based in New York,that AE would provide non-binding investment advisory services to fund and asset management company located outside India, that assessee was a sub-advisor for providing non-exclusive 1
887/M/15-Mount Kellet CPIPL and non-binding services to the AE located at Mauritius,that during the year under consideration the assessee entered into International Transaction worth Rs.26.59 crores with its AE.s,that it used TNMM for bench marking and PLI was based on OP/OC. The assessee identified following six comparables with three year average margin of 15.6%. 1.Future Capital Advisors Private Ltd., 2. Kshitij Investment Advisory Co Ltd., 3.Quantum Advisory Private Ltd., 4. CRISIL Ltd(segmental research), 5.Future Capital Holdings Ltd (segmental investment), 6. Indian Venture Capital Ltd. Out of above 6 comparables,the assessee voluntarily rejected CRISIL Ltd. and Quantum Advisory Private Ltd on account of RPT being more than 25% and Indian Venture Capital Ltd.on account of the reason that its annual report did not exactly mention the business operation of the company and it was understood that the company was also engaged in investment activities. Accordingly, in respect of the balance three comparables, the PLI was computed at 21.18%.Since the PLI of the assessee was 22%,it was claimed that the assessee's IT.s were at arm's-length.
2.1.The TPO questioned the assessee as to how the cost +22% markup was arrived at, so far as the agreement entered between the assessee and its AE was concerned. The TPO also required the assessee to furnish the details regarding the total revenue earned by the AE for which services were rendered by. the assessee, percentage of revenue retained by the AE after paying the assessee on cost +22% along with justification for the same. The assessee replied that there was no specific request for advice from MK Mauritius and the prospective investment opportunities were identified by MK India. The TPO held that in absence of the details asked for FAR analysis of the assessee was incomplete and that the assessee had failed to produce the necessary documentation to justify true nature of transactions within the meaning of Rule 10D(1)(e).He proceeded to independently benchmark the IT.s entered in to by the assessee.In the final analysis,he accepted the three comparables proposed by the assessee. However,he required the assessee to show cause as to why following there additional comparables,namely MOIAPL,IDFC and ICRA-O,should also not be considered.
After considering the submissions/objections of the assessee in regard to the inclusion of above additional comparables, the TPO held that the additional comparables were function - 2
887/M/15-Mount Kellet CPIPL ally similar.He arrived at the average PLI (OP/TC) at 39.97% and had accordingly proposed the adjustment of Rs.3,91,74,438/-.Accordingly,the figure was included in the Draft order of the AO.
3.The assessee challenged the draft order before the DRP stating that MOIALP had been wrongly included by the TPO in the list of comparables,that it was functionally not compara -ble,that it was engaged in Investment Merchant banking activities,that It had super normal profits.Reliance was placed on the decisions in the cases of Carlyle India Advisors Private Limited(ITA/2200/M/2014)and Carlyle India Advisors Private Limited (ITA/7367/ MUM/ 2012),Maersk Global Centres(India)Private Limited(ITA/7466/M/12),Sonata Software Ltd. (ITA /3514/Mum/2010) and Adobe Systems India Pvt. Ltd. (ITA/5043/ Del/ 2010).With regard to IDFC,the assessee argued that its segmental information was not available,that it was functionally not comparable,that it was engaged in Portfolio management service.It relied upon the cases of Roche Diagnostics India Private Limited (ITA/ 4127/Mum/ 2009) and Carlyle India Advisors Private Limited.(ITA/7901/MUM/2011).About ICRA-O,it was argued that it had been wrongly included in the final list,that it was functionally not comprab -le,that the company as well as its Outsourced Service Segments were engaged in providing diversified services, that it's bench marking in regard to the provision of research, advisory and other ancillary support services was determined in accordance with the provisions of sections 92C(1) and (2) of the Act and consequently the provisions of section 92C(3) were not attracted.
3.1.After considering the arguments of the assessee and the orders of the AO/TPO the DRP held that in the case of MOIAPL the income from its operations (which was more than 99% of the total receipts)at Rs. 64.95 crores was only from advisory services,that the objection of the assessee in that regard was not borne out from the facts,in the case of Motilal Ostwal. Similarly, in the P&L account, that there was no income shown from Portfolio management service,that as per its financials MOIAPL had carried out only advisory services,that assessee's argument for exclusion of this comparable on account of supernormal profits and its reliance on the decision of ITAT in the case of Maersk Global Centres (India) Private Limited,(supra) was devoid of merits. In the case of IDFC,the DRP held that as per the annual report for the FY.2009-10,the company had entered into investment advisory segment and was receiving advisory fees towards the same,that there was no substance in the contention of the assessee. The TPO/AO 3
887/M/15-Mount Kellet CPIPL were directed to include this comparable in the final set of comparables. In the case of ICRA,the DRP held that the only activity, from which, revenue had been earned was advisory service of three types i.e. information service fees, outsourced service fees and software service fees, which were almost similar in nature so far as the functional aspects of the services were concerned,that the TPO had rightly pointed out that the outsourced services segment dealt with research and analysis related to financial sector and the advisories were provided on the basis of validation and analysis, which was a comparable activity,that for that purpose a talent pool of financial professionals, financial analysts and investment advisors was required,that even if it was considered that such services had been outsourced and the net revenue had been earned by the said comparable thereof the nature of activity did not change, that the assessee did not furnish details called by the TPO as to how the cost +22% markup was arrived at and what was the total revenue earned by the AE for which services were rendered by the assessee, that in absence of the same the FAR analysis of the assessee was incomplete,that the assessee had failed to produce the necessary documentation to justify true nature of transactions within the meaning of Rule10D(1) and 10D (3),that the provisions of section 92C(3) were attracted in the case under consideration.Finally,the DRP rejected the objections filed by the assessee .
4.Before us,the Authorised Representative(AR)stated that MOIALP,IDFC and ICRA were not valid comparables, that MOIALP was not in investment advisory services, that it was engaged in the business of merchant banking, that segments were not available in case of the comparables collected by the TPO,that such comparables were to be rejected. He referred to the cases of Carlyle India Advisors Pvt. Ltd. (ITA/1268 of 2012), Bain Capital Advisors (I) Pvt. Ltd.,Tata Power Solar Systems Ltd. and Carlyle India Advisors Pvt. Ltd.(ITA 1040 & 1517/Mum/2015 dt.18.11.15-AY10-11). The Departmental Representative(DR)argued that the TPO had considered one of the segmen -ts,namely outsourced services for the purpose of benchmarking in the case of ICRA-O, that he had not considered the entity level margin of the comparable, that the order of the Tribunal in the case of Carlyle was distinguishable on facts, that neither the assessee nor the TPO had adopted the filter of 75% revenue from the service as adapted in the case of Carlyle, that even if the criteria or filter of 75% revenue from services was applied it would not affect the filter, that services of ICRA-O were being used by AMC.s /Mutual Funds,that the comparable provided analytical services in equity/research which were similar to function of the assessee.
887/M/15-Mount Kellet CPIPL He referred to the case of Interra Information Technologies (India) (P.) Ltd. (27 taxmann.com 1).
5.We have heard the rival submissions and perused the material before us. We find that in the case of Carlyle India Advisors Pvt. Ltd.(supra),the Hon'ble Bombay High Court has upheld the order of the Tribunal wherein MOIALP was held to be an invalid comparable as far as investment advisory is concerned. It was also held by the Tribunal that MOIAPL was a merchant banker and that merchant banking and investment advisory services were not similar.In the case of Carlyle India Advisors India Pvt. Ltd (supra), for the AY. 2010-11,the Tribunal has dealt the exclusion of MOIALP and IDFC.We would like to reproduce the relevant portion of the order of the Tribunal: “14.We have carefully considered the rival submissions. At the outset, we note that the points of distinction made out by the Ld. Representative of the assessee vis-a-vis Motilal Oswal Investments Advisors Pvt, Ltd is quite evident from the material on record.Pertinently, the activities undertaken by Motilal Oswal Investments Advisors Pvt. Ltd. stand on a different footing than the pure investment advisory services rendered by the assessee to its associate enterprise.The contents of the Directors report for year under consideration clearly establish that its activities are qualitatively distinct and much more diversified than what is being undertaken by the assessee for its associate enterprise.The plea of the Revenue before us that because it has "single reportable operational Income segment” of advisory fee, therefore, the same is comparable with the asssessee's activity is devoid of any analytical support from the information available in the public domain. In fact, the aforesaid argument of the Revenue has already been considered by Tribunal in the assessee's own case for assessment year 2008-09 vide No. 7367/Mum/2012 (supra),wherein, the Tribunal duly noted that though the said concern was declaring income from a solitary stream of advisory fee, but factually it was found engaged in diversified activities and financial data was not available for each segment. It was noticed that the said concern was registered with SEBI as a merchant banker that it was indeed carrying out merchant banking activities. The aforesaid factual aspects exist during the year under consideration also and, in our view, the same makes the concern as incomparable with assessee's international transaction of Provision of investment advisory related support services.Therefore, considering the precedent in the assesse's own case as also the fact position for the year under consideration, the assessee company is justified in seeking exclusion of the said concern from the final set of comparable account of its functional dissimilarities. Thus, on this aspect assessee succeeds . 17.We have carefully considered the rival submissions on this aspect. A perusal of the Directors report of IDFC Investment Advisors Ltd for the instant year reveals that it is 5
887/M/15-Mount Kellet CPIPL registered as a Portfolio manager with SEBI whereby it is carrying out Portfolio Management Services envisaged under the SEBI (Portfolio Managers) Regulations, 1993. The detailed activities enumerated in the Directors Report show that it was offering Portfolio Management Services for the domestic retail investors in different fields.The aforesaid clearly establishes that it is engaged in managing of funds in its portfolio management platform. In fact, in notes to the accounts, annexed to the Annual Financial Statements, the narration about the nature of operations being carried out is quite significant. At page 506 of the Paper Book is placed a note on the nature of operations of the said concern which enumerates that IDFC Investment Advisors Limited does undertake investment advisory services for evaluating investment opportunities and to monitor the investments in Indian companies and that it had entered into an Investment Advisory Agreement with India Infrastructure Opportunities Fund Ltd. So however, it is also noticed that said concern receives 'advisory fee' computed on the basis of net assets of the fund plus a performance fee. The narration of business operations contained in the notes to accounts clearly establishes a distinction between the business model being pursued by the said concern and the assessee for rendering investment advisory related support services to its associate enterprise. The earnings of IDFC Investment Advisors Limited, though titled as 'advisory fee', are indeed computed on the basis of amount of fund deployed by the investee fund plus a performance fee whereas the assessee is being compensated on cost plus fixed markup basis. On account of this difference in the business model of IDFC Investment Advisors Limited, it would not be appropriate to compare assessee’s international transaction of Provision of investment related support services to its associate enterprise with that of the IDFC Investment Advisors Limited. Before us, the Ld, Representative for the assessee had also relied upon the decision of Mumbai Bench of Tribunal in the case of Bain Capital Advisors (India) Private Ltd. Vs. DCIT in Mum/2015 order dated 15.5.2015, wherein for the instant assessment year itself, IDFC Investment Advisors Limited has been held to be incomparable with an assessee who is engaged in providing non-binding investment advisory related support services only. In our considered opinion, the decision of the Tribunal in the case of Bain Capital Advisors (India) Private Ltd (supra) also supports the plea of the assessee for exclusion of IDFC Investment Advisors Limited from the final set of comparables. In view of the aforesaid discussion, in our view, IDPC Investment Advisors Limited deserves to be excluded from the final set of comparables for the purposes of computing arm's length price of assessee's international transaction of Provision of investment advisory related support services to associate enterprise. Thus, on this aspect also, assessee succeeds.” 5.2.We would also like to quote the relevant portion of the order of the Tribunal in the case of Sparlkes Dhando Advisors Pvt. Ltd. (ITA/1047/M/2015-AY.2010-11,dt.31.12.2015),wherein
887/M/15-Mount Kellet CPIPL the Tribunal has excluded MOIALP and IDFC from the list of the comparables.The relevant portion of the Tribunal order reads as follow: “5.We have heard both the parties on the issue of inclusion of Motilal Oswal Investment Advisors Private Ltd and also perused the cited orders of the Tribunal in this regard. On perusal of the orders of the Tribunal (supra), we find, in the case of Lehman Brothers Advisors Private Limited (supra), one of us (AM) is a party to the said Tribunal’s order and the Tribunal adjudicated the similar issue vide paras 4 to 6 of the said order of the Tribunal dated 30.9.2015. On perusal of the same, we find the issue decided by the Tribunal is similar and for the sake of completeness of this order, we extract the said paras 4 to 6 of the Tribunal’s order dated 30.9.3015 (supra) as under:- 4.We have heard both the parties on the limited issue of if the MOIAPL is a good comparable and whether it passed the functional test. In this regard, we examined the directors’ report placed on page 13 of the paper book and the following is reported by the directors under the heading ‘review of operations and future outlook’, which reads as under: “The market for the services of the Company is buoyant and the Company made a quantum jump in business during the year 2007-08. On the whole, 23 assignments were completed successfully in the year as against 14 completed in the previous year. Income from cross border M&A activity and the related financing solutions has been the largest contributor to the revenue mix during the year. The team size has now increased to 30 and there is a good blend of relationship managers, products specialist and sector expert. Specifically, the knowledge and expertise in the industry areas of real estate, oil & gas, information technology, steel and power have been strengthened.The Capital Markets business gained momentum during the year deriving its synergy from distribution team at Motilal Oswal Securities Limited. The company' was ranked as number one in Bloomberg ranking for QlP business during the quarter ended March, 2008. The Company has been able to originate and structure high quality deals in private equity business and, is hopeful that the same trend would continue in the coming year.Clients have appreciated the capability of the Structured Finance team and it remains a strong selling proposition for the Company to strengthen its position in the market place and to be able to cross sell its services across the clients and Industry sectors. The financial markets have seen an unprecedented turmoil over the last three months with both equity and credit markets being unstable and in a state of uncertainty. The market situation would have impact on the capital markets business of the Company in the coming year. At the same time, the liquidity crunch and re-valuation of assets
887/M/15-Mount Kellet CPIPL across the board globally has opened up opportunistic buying and selling possibilities for our clientele in the industry and financial markets. The team has a good combination of skill set and knowledge to address the change in the market conditions. The Company expects a larger flow of transactions in the product areas of business and financial restructuring, private equity have-offs shareholder value creation through buy-back/sell-outs and mergers.” 5.From the above it is evident that the said company MOIAPL has undertaken 23 assignments successfully in the year under consideration. Major portion of the income is earned by MOIAPL out of cross border activity services and related financial services.The capital market business is one of the sources of the advisory fees earned by the assessee. Assessee has also earned fees out of assessee’s capability of the structured finance teams, financial markets, ie both equity and credit market, is another source of income for the assessee. These functions of the assessee were analyzed by the Tribunal during the proceedings in the case of Carlyle India Advisors (P) Ltd (supra). The details of the findings of the Tribunal in this regard are mentioned in para 12 of the said Tribunal’s order (supra) and the same is reproduced as under: “12. ..........The only dispute is whether Motilal Oswal Investment Advisors Pvt Ltd can be considered as a comparable for the determination of ALP. A perusal of three comparables considered by the TPO shows that M/s. Future Capital Investment Advisors Ltd has operative profit at 21.79% whereas OPM of Motilal Lswal Investment Advisors Pvt Ltd is 72.33%. The comparables used by the TPO themselves are showing extreme OPM. A perusal of the Director’s report of Motilal Oswal Investment Advisors Pvt Ltd shows that during the year under consideration, the said company has completed 23 assignments successfully as against 14 completed in the immediately preceding year. A close look at the financial statements of the said company show that the income from operations have been shown only as advisory fees whereas it is admittedly an undisputed facts that the said company is engaged in diversified activities. Segmental reporting is not available. Profit and loss account appears to be only of consolidated accounts. The said company is registered with SEBI as a merchant banker and the Director’s report show that it is into takeover acquisitions, disinvestments etc. In the absence of specific data it is not possible to make comparison. It can therefore be safely said that the said company being into merchant banking and cannot be considered as a comparable. We, accordingly, direct the AO not to consider Motilal Oswal Investment Advisors Pvt Ltd as a comparable for the determination of ALP and re-determine the Arm’s Length Price excluding Motilal Oswal Investment Advisors Pvt Ltd [ as per the findings] and including M/s.
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IDC [as per the directions of the DRP] i the light of the provisions of section 92C(2) r.w.s 92C(2A) of the Act. Ground no.4.1 and ground no.9 are accordingly allowed.” 6.The contents of above extracted para highlights the fact that the MOIAPL is into merchant banking, and therefore, is functionally different to that of the assessee which is engaged in the business of non-binding advisory services. Therefore, in our opinion, the assessee is engaged in the function of non-binding advisory services whereas MOIAPL is into the merchant banking, capital markets, finance markets etc.Therefore, we find the MOIAPL is functionally dissimilar and therefore, the same should be excluded for benchmarking the international transactions. Accordingly, AO / TPO is directed to exclude the same.Thus, Ground no. 1 raised by the assessee is allowed in favour of the assessee. 6.From the above, it is evident that Motilal Oswal Investment Advisors Pvt Ltd is held as a “merchant banker and investment banker”, which is functionally not similar to that of function of non-binding advisory services. Therefore, after hearing both the parties in this regard, we are of the opinion that Motilal Oswal Investment Advisors Pvt Ltd is not a good comparable in this case. Accordingly, AO is directed to exclude the same from the comparables.” “7.Regarding IDFC,it is demonstrated before us that the said company is engaged in rendering of services as Portfolio Manager, whose functions are intimately different from that of the functions of non-binding advisory services rendered by the assessee to its AEs. The fact of rejection of the same as a good comparable to a case of similar services as in the case of the assessee, assessee was also demonstrated by relying on the decision of the Tribunal in the case of Bain Capital Advisors (India) Private Limited (supra). After hearing both the parties and on perusal of the said decision of the Tribunal in the case of Bain Capital Advisors (India) Private Limited (supra), order dated 15.5.2015, we find the para 8 is relevant in this regard and for the sake of completeness of this order the same is extracted as under:- “8.We have considered rival contentions and found that assessee is engaged in business of providing investment research and advisory services to Bain Mauritius, on a non-exclusive and non-binding basis, in connection with potential investment opportunities in India. IDFC rendered Portfolio Management services for hybrid infrastructure portfolio, agriculture opportunities portfolio and farm fork portfolio. IDFC is registered as portfolio manager with SEBI.Thus, IDFC is functionally different from the assessee which is engaged merely in non-binding investment advisory support services. Since, IDFC is functionally different, we direct the AO to exclude the IDFC from the list of comparables for computing arm’s length adjustment.”
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8.In view of the above, we direct the AO to re-compute the arms length adjustment after excluding IDFC from the list of comparables.” In the case of AGM India Advisors Private Limited,the Tribunal(ITA.s.4757/Mum/2015-AY. 2010-11,dtd.18.05.2016),has held that ICRA-O is not a valid comparable for benchmarking non binding advisory services.Following is the order of the Tribunal: “7.We find that the assessee objected to the inclusion of ICRA-O and IDFC on the ground that the TPO had applied no scientific method in arriving at the said two companies,that the companies had been cherry- picked by the TPO and he had not furnished the process applied by which he had come to select the said two companies,that such an approach to select comparables was impressible in law and on that count alone the said two companies should be rejected,that the FAA had rejected ICRA-O as comparable to investment advisory services rendered by the assessee and had stated assessee's knowledge process outsourcing division provided financial and analytical services and support to clients in the areas of Data Extraction,Aggregation,ElectronicConversion of Financial Statements,Validation and Analysis,Accounting and Finance, Research and Analytics,that the company was not engaged in investment advisory or consultancy services,that the AO was directed to exclude ICRA-O from the final set of comparable companies, that he had held that it was functionally not comparable to the assessee.Charging of fees by ICRA-O did not mean that it was a valid comparable to the assessee.As per the settled principles of TP for a company to be treated as a valid comparable the Functions performed,Assets employed and Risks assumed have to be comparable and not nomenclatures in the Annual Accounts.We would like to refer to Pg.507 of the PB in case of ICRA-O and it reads as under: "ICRA Online Limited is a leading information services, outsourcing and technology solutions provider and caters for some of the biggest names in the financial services sector in(India) and abroad, which is a testimony to its product quality, commitment and credibility". From the above description it is clear that ICRA-O operated in two strategic lines of business,i.e.knowledge Process Outsourcing and information Services and Technology Solutions,with a list of reputed global and domestic clients. Note c(iii)on Pg.507 of the PB also proves that the activities performed by the Company under the business line "Outsourced Services" were in the nature of "maintenance and management of data" and therefore cannot be compared with the assessee..….” 6.Considering the above,we are of the opinion that the TPO/DRP was not justified in including MOIAPL,IDFC and ICRA-O as valid comparables for determining the ALP of the IT.s.,entered in to by the assessee during the year under consideration.The AO is directed to 887/M/15-Mount Kellet CPIPL