WARBURG PINCUS INDIA PRIVATE LIMITED, MUMBAI V. DCIT, CC-3(3)(2), MUMBAI

ITA 1612/MUM/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 1209 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-04-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: K
• Assessment Year: 2010-2011
• Appeal Filed On: 18-03-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: N K CHAND
• Keywords: Transfer pricing; Opportunity of being heard; Principle of natural justice; International transaction
• Section: 143(3); 92D; 234B

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNNAL MUMBAI BENCH K, MUMBAI BEFORE SHRI C.N. PRASAD (JUDICIAL MEMBER) AND SHRI ASHWANI TANEJA (ACCOUNT MEMBER) I.T.A.NO.1612/MUM/2015 ( ASSESSMENT YEAR : 2010-11) WARBURG PINCUS INDIA PVT LTD 7 TH FLOOR, EXPRESS TOWERS NARIMAN POINT, MUMBAI-21 V/S DY.CIT, CIR.3(3)(2), MUMBAI PAN : AACW5205E APPELLANT RESPONDENT APPELLANT BY SHRI PORUS KAKA & SHRI MANISH KANTH RESPONDENT BY SHRI N.K. CHAND CIT-DR DATE OF HEARING 21.3.2017 DATE OF ORDER 12.04.2017 O R D E R PER ASHWANI TANEJA, AM:- THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER DATED 15.1.15 PASSED BY THE ASSESSING OFFICER U/S 143(3) R.W.S. 144C(13) OF THE ACT PASSED IN PURSUANCE TO DIRECTIONS OF THE DISPUTE RE SOLUTION PANEL-2 MUMBAI(HEREINAFTER CALLED D.R.P) ISSUED U/S144C (5) OF THE ACT VIDE ORDER DATED 22.12.14 ON THE FOLLOWING GROUNDS:- 1. WITHOUT PREJUDICE TO THE FACTS, CIRCUMSTANCES AND M ERITS OF THE CASE, THE HON'BLE DISPUTE RESOLUTION PANEL ('DR P') HAS ISSUED DIRECTIONS AND ENHANCED THE TRANSFER PRICING ADJUST MENT MADE BY THE TRANSFER PRICING OFFICER ('TPO') CONTRARY TO SE CTION 144C(11) THE 2 INCOME-TAX ACT, 1961 ('THE ACT') AND AGAINST THE PR INCIPLES OF NATURAL JUSTICE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED TPO HAS ERRED IN MAKING AN UPWARD ADJUSTMEN T OF RS. 14,78,97,525/- TO THE INCOME OF THE APPELLANT EARNE D ON ACCOUNT OF PROVISION OF NON-BINDING INVESTMENT ADVISORY SERVIC ES TO ITS ASSOCIATED ENTERPRISES AND THE LEARNED ASSESSING OF FICER ('AO') AND DRP HAS ERRED IN FURTHER ENHANCING THE ADJUSTMENT T O RS. 25,13,431266/-. 3. ON THE FACTS AND ILL THE CIRCUMSTANCES OF THE CASE, THE LEARNED AO/ TPO HAS ERRED IN PASSING AN ORDER NOT IN ACCORD ANCE OF SECTION 92C(3) OF THE ACT AND THE DRP HAS ERRED III CONFIRM ING THE APPROACH ADOPTED BY THE AO/ TPO. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED TPO AND THE LEARNED AO HAVE ERRED IN MAKING AND THE DRP HAS ERRED IN CONFIRMING THE APPROACH ADOPTED BY THE LEARNED AO/ TPO, WHO HAVE DISREGARDED THE BENCHMARKING ANALYSIS CONDUCTED, SEARCH FILTERS APPLIED AND THE COMPARABLE COMPANIES SELECTED BY THE APPELLANT WITHOUT APPRECIATING THE FACT THAT SU CH SELECTION WAS BASED ON THE CONTEMPORANEOUS DATA AND THE TRANS FER PRICING STUDY REPORT PREPARED AND MAINTAINED AS PER SECTION 92D OF THE ACT READ WITH RULE IOD OF THE RULES. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED TPO AND THE LEARNED AO HAVE ERRED IN MAKING A TRANSFER PRICING ADJUSTMENT AND THE DRP HAS ERRED IN ENHANCI NG THE TRANSFER PRICING ADJUSTMENT MADE BY THE LEARNED TPO, BY USIN G NON CONTEMPORANEOUS DATA AND SUBSTITUTING THE APPELLANT 'S ANALYSIS WITH A SET OF CHERRY PICKED COMPANIES BASED ON CONJ ECTURES SURMISES. 6. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED TPO AND THE LEARNED AO HAVE ' ERRED IN MAKI NG A TRANSFER PRICING ADJUSTMENT AND THE DRP HAS ERRED I N ENHANCING THE TRANSFERPRICING ADJUSTMENT MADE BY THE LEARNED TPO, BY INCORRECTLY CONSIDERING A FRESH COMPARABLE COMPANY (NAMELY, MOT ILAL OSWAL INVESTMENT ADVISORS PVT. LTD.). THUS, THE APPELLANT PRAYS THAT THE FRESH COMPARABLE COMPANY INTRODUCED BY THE LEARNED TPO/AO AND THEN DRP BE DELETED. 3 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED TPO AND THE LEARNED AO HAVE ERRED IN MAKING A TRANSFER PRICING ADJUSTMENT AND THE DRP HAS ERRED IN ENHANCING THE A DJUSTMENT MADE IN THE ORDER OF AO/ TPO, WITHOUT PROVIDING THE STEP BY STEP ACCEPT/REJECT MATRIX OF COMPANIES SELECTED BY HIM B ASED ON HIS SEARCH PROCESS. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE APPELLANT PRAYS THAT THE COMPARABLE COMPANIES SELECTED IN THE TRANSFER PRICING DOCUMENTATION (NAMELY, ICRA MANAGEMENT CONSULTING S ERVICES LIMITED; IDC (INDIA) LIMITED; FUTURE CAPITAL HOLDIN GS LIMITED AND FUTURE CAPITAL INVESTMENT ADVISORS LIMITED) THAT HA VE BEEN INCORRECTLY REJECTED BY THE DRP BE CONSIDERED IN DE TERMINING THE ARM'S LENGTH PRICE OF THE INTERNATIONAL TRANSACTION CARRIED OUT BY THE APPELLANT PERTAINING TO THE PROVISION OF NON-BINDIN G INVESTMENT ADVISORY SERVICES. 9. WITHOUT PREJUDICE TO THE FACTS AND CIRCUMSTANCES OF THE CASE, THE DRP HAS ERRONEOUSLY DELETED THE TWO COMPANIES SELEC TED BY THE ASSESSEE IN THE TRANSFER PRICING DOCUMENTATION (NAM ELY FUTURE CAPITAL HOLDINGS LIMITED AND FUTURE CAPITAL INVESTM ENT ADVISORS LIMITED) WITHOUT PROVIDING THE APPELLANT WITH A SHO W CAUSE NOTICE OR AN OPPORTUNITY OF BEING HEARD. 10. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LEARNED TPO AND THE LEARNED AO HAVE ERRED IN MAKING AND THE DRP HAS ERRED IN CONFIRMING THE ACTION OF THE LEARNED AO/ TPO OF NOT ALLOWING APPROPRIATE ADJUSTMENTS IN ACCORDANCE WITH THE PROV ISIONS OF RULE IOB(1)(E)(III) OF THE RULES TO ACCOUNT FOR DIFFEREN CE BETWEEN INTERNATIONAL TRANSACTIONS AND THE ALLEGED COMPARAB LE UNCONTROLLED TRANSACTIONS SELECTED BY THE LEARNED AOITPO. 11. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE FINDING OF THE TPO AND THE DRP THAT THE APPELLANT HAS FAILED T O SHOW THE DIFFERENCE IN THE LEVEL OF RISKS BORNE BY IT AS COM PARED TO THE COMPARABLE CASES IS ERRONEOUS, INCORRECT AND CONTRA RY TO RECORD. YOUR APPELLANT PRAYS THAT THE FINDING BE SET ASIDE AND THE RISK ADJUSTMENT PRAYED FOR BE GRANTED. 12. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LEARNED TPO AND THE LEARNED AO HAVE ERRED IN MAKING AND THE DRP HAS ERRED IN CONFIRMING THE APPROACH OF THE AO/ TPO TO DISREG ARD THE USE OF MULTIPLE YEAR DATA, ESPECIALLY FOR PRECEDING FINANC IAL YEARS (VIZ. FY 2007-08 AND FY 2008-09) AS PERMITTED UNDER THE PROV ISIONS OF RULE I01)(4) OF THE RULES AS ELABORATED IN THE TP STUDY. 4 13. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LEARNED AO HAS ERRED IN NOT FOLLOWING AND COMPLYING WITH TH E DIRECTIONS OF THE DRP. 14. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LEARNED AO HAS ERRED IN INITIATING PENALTY PROCEEDINGS UNDE R SECTION 274 READ WITH SECTION 271(1)(C) OF THE ACT. 15. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LEARNED AO HAS ERRED IN LEVYING INTEREST UNDER SECTION 234B AND SECTION 234D OF THE ACT. 2. DURING THE COURSE OF HEARING, AT THE VERY OUTSET IT WAS STATED BY THE LD. COUNSEL OF THE ASSESSEE THAT DISPUTES INVOLVED IN T HIS APPEAL HAVE BEEN NOW SUBSTANTIALLY REDUCED BECAUSE OF THE DECISION OF TH E TRIBUNAL IN ASSESSEES OWN CASE BY THE ITAT VIDE ORDER DATED 13.1.17 FOR AYS. 2008-09 & 2009-10 IN ITA NO.6981/M/12 & 171/M/14. IT HAS BEEN SUBMITTED THAT NOW THE DISPUTE IS CONFINED TO ONLY INCLUSION OR EXCLUSION OF FOLLOWIN G THE THREE COMPARABLES:- 1. MOTILAL OSWAL INVESTMENT ADVISERS PVT. LTD. 2. ICRA MANAGEMENT CONSULTING SERVICES LTD. 3. IDC INDIA LTD. 3. IT IS SUBMITTED THAT WITH REGARD TO ABOVE THREE COM PANIES THE TRIBUNAL HAS ALREADY TAKEN A DECISION IN THE AFORESAID ORDER AND IF, THE SAME IS FOLLOWED, THEN THE ASSESSEE WOULD NOT BE PRESSING ANY OTHER C ONTROVERSY AS ALL OTHER GROUNDS HAVE BECOME INFRUCTUOUS,AT THIS STAGE. 4. PER CONTRA, LD. CIT (DR) VEHEMENTLY OPPOSED THE SUB MISSIONS MADE BY THE LD. COUNSEL OF THE ASSESSEE AND REITERATED ALL THE ARGUMENTS WHICH WERE MADE BEFORE THE DRP.LD. CIT-DR SUBSEQUENTLY, FILED DETAILED SUBMISSIONS WHEREIN EXHAUSTIVE ARGUMENTS HAVE BEEN MADE TO OPPO SE THE SUBMISSIONS OF THE ASSESSEE. IT IS NOTED BY US THAT THESE VERY ARG UMENTS WERE MADE IN THE CASES RELIED UPON BY LD. COUNSEL AND THESE HAVE BEE N CONSIDERED THEREIN BY RESPECTIVE BENCHES. FURTHER, WE FIND THAT SIMILAR A RGUMENTS WERE ALSO MADE BY THE LD. CIT(DR) BEFORE THE TRIBUNAL IN APPEALS FOR AY 2008-09 & 2009-10. IT IS 5 NOTED THAT REPRESENTATION WAS DONE FORAY 2008-09 & 2009-10 BEFORE THE TRIBUNAL BY THE SAME COUNSEL OF THE ASSESSEE AND LD . CIT(DR) WAS ALSO SAME. 5. WE HAVE GONE THROUGH ALL THE FACTS AND CIRCUMSTANCE S OF THE CASE AND FIND THAT FACTS AND CIRCUMSTANCES FOR AY 2010-11 AR E IDENTICAL TO THE FACTS AND CIRCUMSTANCES AND THE LEGAL POSITION FOR AY 2008-09 & 2009-10. UNDER THESE CIRCUMSTANCES WE ARE INCLINED TO FOLLOW THE ORDERS PASSED BY THE TRIBUNAL FOR THE AFORESAID ASSESSMENT YEARS, AS A MATTER OF CONS ISTENCY AND JUDICIAL DISCIPLINE. 6. NOW, WE SHALL DEAL WITH THE THREE COMPARABLES ONE B Y ONE AS HAS BEEN DEALT BY TRIBUNAL IN THE AFORESAID ORDER. MOTILAL OSWAL INVESTMENT ADVISERS PVT. LTD. 7. THE ASSESSE HAS OBJECTED TO THE INCLUSION OF THIS C OMPANY AS A COMPARABLE ON THE GROUND THAT THE SAID COMPANY IS R EGISTERED WITH SEBI AS A MERCHANT BANKER WHEREAS THE ASSESSEE IS MERELY AN I NVESTMENT ADVISOR. THEREFORE, THE SAID COMPANY CANNOT BE TAKEN AS COMP ARABLE TO THE ASSESSEE. IT IS NOTED THAT THIS ISSUE HAS ALREADY BEEN DEALT WITH BY THE TRIBUNAL IN THE AFORESAID ORDER WHEREIN IT HAS BEEN HELD THAT THE A FORESAID COMPANY IS NOT COMPARABLE TO THE ASSESSEE AND, THEREFORE, THE SAME WAS DIRECTED TO BE EXCLUDED WITH THE FOLLOWING OBSERVATIONS:- 38 LD. AUTHORISED REPRESENTATIVE OBJECTING TO THE INCLUSION OF THIS COMPANY AS A COMPARABLE SUBMITTED, IT IS REGISTERED WITH SEBI AS A MERCHANT BANKER, HENCE, IT CANNOT BE CONSIDERED A S A COMPARABLE TO THE ASSESSEE. IN THIS CONTEXT, LEARNE D AUTHORISED REPRESENTATIVE RELIED UPON THE FOLLOWING DECISIONS: - I) DCIT V. WARBURG PINCUS INDIA P. LTD., ITA NO. 3840/ MUM/ 2009, A.Y. 2005-06 ETC., ORDER DATED 29.7.16 II) CARLYLE INDIA ADVISORY PVT. LTD. V/S DCIT, [2014] 4 3 TAXMANN.COM 184 (MUM.); III) ACUMEN FUND ADVISORY SERVICES INDIA PVT LTD V/S DCI T,[2014] 590 TAXMANN.COM 317 (MUM). 6 IV) BAIN CAPITAL ADVISORS INDIA P LTD V/S DCIT, ITA NO.11360/MUM/2014 AY 2009-10 V) DCIT V/S ARISAIG PARTNERS INDIA P. LTD IT NO.1083/MUM/2014, ETC. ORDER DATED 25.3.2015 VI) GOLDMAN SACHS INDIA SECURITIES PVT LTD V/S DCIT ITA NO 222/MUM/2014 A.Y. 2009-10, ORDER DATED 30.11.2015. VII) CARLYLE INDIA ADVISORY PVT. LTD. V/S A CIT, [2014] 43 TAXMANN.COM (TRIB.) 184 (MUM.); VIII) M/S. BLACKSTONE ADVISORS INDIA P. LTD. V/S DCIT, IT A NO.3191 MUM.12014, ORDER DATED 9.3.2016; IX) TEMASEK HOLDINGS ADVISORS INDIA PVT. LTD. V/S DCIT, ITA 11 NO.776/MUM./2015, A. Y. 2010-11, ORDER DATED 25.2.2 016; XI) BAIN CAPITAL ADVISORS INDIA P. LTD. V/S DCIT, I TA NO.413/MUM./2015, A. Y. 2010-11, ORDER DATED 15.5.2 015; XII) Q-INDIA INVESTMENT ADVISORS P. LTD. V/S DCIT, ITA NO.9231 MUM./2015, ORDER DATED 24.4.2015; XII) CARLYLE INDIA ADVISORY PVT. LTD. V/S A CIT, [2 016] 68 TAXMANN.COM (TRIB.) 14 (MUM.); XIII) NVP VENTURE CAPITAL INDIA PVT. LTD. V/S DCIT, [2015] 58 TAXMANN.COM (TRIB.) 87 (MUM.); & XIV) AGM INDIA ADVISORS (P) LTD. V/S DCIT, [2016] 7 0 TAXMANN. COM 219 (MUM.). 39. LEARNED DEPARTMENTAL REPRESENTATIVE, HOWEVER, J USTIFIED SELECTION OF THIS COMPANY AS A COMPARABLE. 40. WE HAVE CONSIDERED THE SUBMISSIONS OF THE PARTIES A ND PERUSEDTHE MATERIAL AVAILABLE ON RECORD IN THE LIGH T OF THE DECISIONS RELIED UPON. IT IS EVIDENT FROM THE ANNU AL REPORT OF THE COMPANY AS WELL AS OTHER MATERIAL FACTS, THIS COMPA NY IS A MERCHANT BANKER. IN CASE OF GOLDMAN SACHS SECURITIE S PVT. LTD. (SUPRA), THE CO-ORDINATE BENCH OF THE TRIBUNAL HAVI NG TAKEN NOTE OF THE AFORESAID FACTUAL POSITION HAS HELD THAT THI S COMPANY CANNOT BE A COMPARABLE TO AN INVESTMENT ADVISORY SE RVICE PROVIDER. IN FACT, IN A PLETHORA OF DECISIONS OF TH E TRIBUNAL CITED BEFORE US, THE CONSISTENT VIEW IS THIS COMPANY BEIN G ENGAGED IN MERCHANT BANKING AND INVESTMENT BUSINESS, CANNOT BE A COMPARABLE TO INVESTMENT ADVISORY SERVICES. RESPECT FULLY FOLLOWING THE CONSISTENT VIEW OF THE TRIBUNAL AS EXPRESSED IN THE AFORESAID DECISIONS, A NUMBER OF WHICH PERTAINED TO THE IMPUG NED ASSESSMENT YEAR, WE EXCLUDE MOTILAL OSWAL INV. ADVI SORS P. LTD. FROM BEING TREATED AS COMPARABLE. 7 8. IN ADDITION TO THAT THE ASSESSEE HAS ALSO PLACED RE LIANCE UPON THE DECISION OF THE TRIBUNAL IN THE CASE OF TA ASSOCIAT ES ADVISORY PVT LTD VS DCIT (ITA NO.496/MUM/2015) DATED 22-01-2016 FOR AY 2010- 11. IT WAS BROUGHT TO OUR NOTICE THAT THIS DECISION HAS BEEN PASSED FOR A Y 2010-11 RELYING UPON THE JUDGEMENT OF HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS CARLYL INDIA ADVISORS PVT LTD 32 TAXMAN.COM 23 (BOM). IT WAS AL SO BROUGHT TO OUR NOTICE THAT THE SAID DECISION WAS AUTHORED BY THE AM. WE HAVE CAREFULLY GONE THROUGH THE DECISION AND FIND THAT THIS ISSUE HAS B EEN THREADBARE DISCUSSED BEFORE ARRIVING AT THE CONCLUSION THAT THE SAID COM PANY IS A MERCHANT BANKER AND, THEREFORE, CANNOT BE COMPARED WITH THE COMPANY ENGAGED IN THE BUSINESS OF PURE ADVISORS. THUS, RESPECTFULLY FOLL OWING THE ORDERS OF THE TRIBUNAL, THE SAID COMPANY IS DIRECTED TO BE EXCLUD ED FROM THE LIST OF COMPARABLES . ICRA MANAGEMENT CONSULTING SERVICES LTD & IDC INDI A LTD. 9. IT HAS BEEN BROUGHT TO OUR NOTICE THAT BOTH THE ABO VE SAID COMPARABLES HAVE BEEN ACCEPTED TO BE INCLUDED IN THE LIST OF CO MPARABLES BY THE TRIBUNAL IN THE AFORESAID ORDER. IT IS NOTED THAT THE TRIBUNAL GAVE FOLLOWING OBSERVATIONS WHILE DIRECTING TO ACCEPT THE ABOVE COMPANIES AS CO MPARABLES:- 41. OBJECTING TO REJECTION OF THIS COMPANY AS A CO MPARABLE, LEARNED AUTHORISED REPRESENTATIVE SUBMITTED, THIS C OMPANY PROVIDES CONSULTING CORPORATE AND REGULATORY SUPPOR T ANALYSIS AND STRATEGIES, ETC., TO CLIENTS. REFERRING TO SCHEDULE -12 ON NOTES TO ACCOUNTS FORMING PART OF ANNUAL REPORT OF THE COMPA NY, LEARNED AUTHORISED REPRESENTATIVE SUBMITTED, THE COMPANY OP ERATES IN A SINGLE SEGMENT I.E., CONSULTING SERVICES. HE, THERE FORE SUBMITTED, COMPANY BEING FUNCTIONALLY SIMILAR TO ASSESSEE SHOU LD BE ACCEPTED AS A COMPARABLE. IN SUPPORT OF SUCH CONTENTION, HE RELIED UPON THE FOLLOWING DECISIONS:- 1) DCIT V/S TEMASEK HOLDINGS ADVISORS INDIA PVT. LT D. V/S DCIT, [2014] 47 ITR (TRIB.) 311 (MUM.); 8 II) TEMASEK HOLDINGS ADVISORS INDIA PVT. LTD. V/S D CIT, [2013] 27 ITR (TRIB.) 125 (MUM.); AND III) M/S. BLACKSTONE ADVISORS INDIA P. LTD. V/S DCI T, ITA NO.1581/ MUM.12014, ORDER DATED 9.3.2016; IV) BOBST INDIA P. LTD. V/S DCIT, [2015] 63 TAXMANN .COM 339 (PUNE); V) TIBCO SOFTWARE INDIA P. LTD. V/S DCIT, [2015] 56 TAXMANN. COM 91 (PUNE); VI) TEMASEK HOLDINGS ADVISORS INDIA PVT. LTD. V/S D CIT, ITA NO.776/MURN.12015, A.Y. 2010-11, ORDER DATED 25.2.2 016; VII) AGM INDIA ADVISORS (P) LTD. V/S DCIT, [2016] 7 0 TAXMANN. COM 219 (MUM.). 42. WE HAVE CONSIDERED THE SUBMISSIONS OF THE PARTI ES AND PERUSED THE MATERIAL AVAILABLE ON RECORD IN THE LIG HT OF THE DECISIONS RELIED UPON. THOUGH, THE TRANSFER PRICING OFFICER AND THE DRP HAVE EXCLUDED THIS COMPANY OBSERVING THAT IT IS NOT FUNCTIONALLY SIMILAR TO THE ASSESSEE, HOWEVER, ON A PERUSAL OF THE ANNUAL REPORT OF THE COMPANY WE HAVE NOTICED THAT I T IS BASICALLY ENGAGED IN CONSULTING SERVICES. THE TRIBUNAL, MUMBA I BENCH, IN DCIT V/S TEMASEK HOLDINGS ADVISORS INDIA PVT. LTD. V/S DCIT, [2014] 47 ITR (TRIB.) 311 (MUM.), WHILE CONSIDERING COMPAR ABILITY OF THIS COMPANY IN THE VERY SAME ASSESSMENT YEAR I.E. ASSE SSMENT YEAR 2009-10, HAVING FOUND THAT THE COMPANY IS OFFERING CONSULTATION SERVICES IN THE AREA OF STRATEGY, RISK MANAGEMENT, OPERATIONS, IMPROVEMENT, REGULATORY ECONOMICS AND TRANSLATIONS ADVISORY AND ITS ENTIRE REVENUE IS GENERATED FROM CONSULTATION F EE HAS CONCLUDED THAT THE COMPANY IS GIVING CONSULTATION I N VARIOUS TYPES OF INDUSTRIES THROUGH INVESTMENT ADVISORY, WE DIREC T THE ASSESSING OFFICER TO INCLUDE THIS COMPANY AS A COMPARABLE. IDC INDIA LIMITED 43. IN VIEW OF OUR OBSERVATIONS IN APPEAL BEING ITA NO.6981/MUM. 2012 AND ALSO THE FACT THAT IN CASE OF DCIT V/S TEM ASEK HOLDING ADVISORS INDIA PVT. LTD. V/S DCIT, [2014] 47 ITR (T RIB.) 311 (MUM.) THE COMPANY HAS BEEN ACCEPTED AS A COMPARABLE TO AN INVESTMEN ADVISORY SERVICE PROVIDER OF THE VERY SAME ASSESSME NT YEAR I.E., FOR THE ASSESSMENT YEAR 2009-10, WE DIRECT THE ASSESSIN G OFFICER INCLUDE THIS COMPANY AS A COMPARABLE. THE TRANSFER PRICING OFFICER IS DIRECTED TO COMPUTE THE ARM'S LENGTH PRICE KEEPI NG IN VIES OBSERVATIONS MADE US HEREIN ABOVE IN RESPECT OF VAR IOUS COMPARABLES. 9 10. IN OUR CONSIDERED OPINION, THE FACTS AND CIRCUMSTAN CES ARE SAME IN THIS YEAR AS WELL AND THEREFORE WE ARE INCLINED TO FOLLO W THE ORDER OF THE TRIBUNAL WITH RESPECT TO ABOVE TWO COMPARABLES. THUS, THE AO IS DIRECTED TO INCLUDE THE ABOVE TWO COMPANIES IN THE LIST OF COMPARABLES. 11. SINCE NO ARGUMENTS HAVE BEEN MADE BY THE PARTIES WI TH RESPECT TO ANY OTHER GROUND OR ISSUE RAISED BEFORE US, THE REMAINI NG GROUNDS ARE DISMISSED. 12. AS A RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOW ED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 12.04.201 7 SD/- SD/- (C.N. PRASAD) (ASHWANI TANEJA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DT :12.04.2017 PK/- COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. THE CIT 5. THE LD. DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE , K, BENCH (TRUE COPY) BY ORDER ASSTT.REGISTRAR, ITAT, MUMBAI BENCHES 10 DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 29.3.17 SR PS / PS 2 DRAFT PLACED BEFORE AUTHOR 29.3.17 SR PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED / APPROVED BY SECOND MEMBER JM / AM 5 APPROV ED DRAFT COMES TO THE SR PS / PS SR PS / PS 6 KEPT FOR PRONOUNCEMENT ON SR PS / PS 7 FILE SENT TO THE BENCH CLERK SR PS / PS 8 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9 DATE OF DESPATCH OF ORDER