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2019 (5) TMI 553 - DELHI HIGH COURTReview petition before High Court - maintainability of review as Court considered the merits of the case and delivered a reasoned judgment - exclusion of relative comparables held to be relevant for the purpose of ALP determinations - assessee seeks review are firstly that the question of charging interest on delayed receipt of receivables is a separate international transaction under Explanation to Section 92B - HELD THAT:- It is evident that the observation in Khoday India [2019 (3) TMI 232 - SUPREME COURT] , is applicable in the present case, wherein it was held that rejection of the special leave petition by a non-speaking order, did not preclude the maintainability of the present writ petition. As far as the first argument by the review petitioner, i.e., the answer to the question of bringing to tax the interest amounts goes, this Court is of the opinion that the fact that the order to Kusum Health Care [2017 (4) TMI 1254 - DELHI HIGH COURT] had expressly remitted the matter for consideration to the ITAT supports the assessee’s submission. All that the court had stated was that the matter required re-examination by the ITAT in the light of the Kusum Health Care (supra) For these reasons, the judgment to the extent it deals with adjustments made by the TPO, and regarding interest on delayed receipt of receivables, is a clear error. The court also furthermore notes the submissions made with respect to inapplicability to Explanation of Section 92B and its prospective operation. As the order of 07.02.2018 reserved by contentions, this Court does not propose to disturb the effect of that matter. The matter will be considered by the ITAT on its own merits. Exclusion of comparables and whether the assessee rendered services were akin to that of KPO rather than a BPO - here too the court is of the opinion that two clear errors have crept into the judgment. The reliance on Maersk Global [2014 (3) TMI 891 - ITAT MUMBAI] was clearly an error in view of the submission that Rampgreen [2015 (8) TMI 931 - DELHI HIGH COURT] had disagreed with the view of the Special Bench. Furthermore, the court also overlooked the judgment dated 27.03.2015 in the assessee’s case [2015 (3) TMI 1226 - DELHI HIGH COURT] . Lastly, the Court also is of the opinion that the assessee’s argument with respect to separate benchmarking of the knowledge management system, as part of the IT Support segment, is an aspect that requires examination. The judgment sought to be reviewed, clearly is at variance; the view in Rampgreen (supra) about the soundness of Maersk Global (supra) was doubted- as aspect that escaped the main judgment in this case. This Court is of the opinion that the main judgment contains errors apparent on the record. The review petition has to be and accordingly allowed; judgment dated 09.08.2018 is hereby recalled. The appeal is restored to original file of this Court and shall be heard on its merits.
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