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2017 (1) TMI 1618 - AT - Income TaxTPA - Comparable selection criteria - functional dissimilarity - Held that:- The assessee, provided data processing and other IT enabled services to its AEs located in various parts of the world. It is registered under the Software Technology Parks of India Scheme and is claiming tax holiday benefit in respect of the profits earned by it from the research and development services, thus companies functionally dissimilar with that of assessee need to be deselected from final list. Adjustments made in respect of computation u/s 10A - AO excluded the expenditure incurred in foreign currency on travel, from export turn over for the purpose of computing deduction u/s.10A - Assessee pleaded that it is rendering BPO Services and ITES and as not engaged in rendering technical services, the expenditure incurred in foreign currency on travel should not be excluded from the export turnover for the purpose of computing deduction u/s.10A. - Held that:- Similar matter came up before this Tribunal in assessee's own case for A. Y. 2008-09 [2015 (10) TMI 483 - ITAT BANGALORE] AO is directed to exclude the above expenditure both from ETO and TTO. The assessee's appeal in this regard is allowed. Addition u/s 43B - leave encashment which remained outstanding as on the last day of the PY - Held that:- When a challenge was made before the Hon'ble Calcutta High Court in Exide Industries Ltd and another v. UOI & others [2007 (6) TMI 175 - CALCUTTA HIGH COURT ], it struck down section 43B(f) being arbitrary, unconscionable and dehors the Apex Court decision in the case of Bharath Earth Movers Ltd (2000 (8) TMI 4 - SUPREME COURT) as the amendment did not disclose the reasons which would be consistent with the provisions of the Constitution and the laws of the land and not for the sole object of nullifying the apex Court decision. On SLP the SC held that "Pending hearing and final disposal of the Civil Appeal, Department is restrained from recovering penalty and interest which has accrued till date. It is made clear that as far as the outstanding interest demand as of date is concerned, it would be open to the Department to recover that amount in case civil appeal of the Department is allowed. In the circumstances, this issue is remitted back to the AO to decide the issue based on the outcome of the Hon'ble Supreme Court's decision in the above case. Ordered accordingly
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