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2016 (6) TMI 1342 - ITAT PUNETPA - Comparable selection - Rejection of a comparable company (Genesys International Corporation Ltd.) selected by the assessee in the transfer pricing study - Held that:- The Department cannot accept or reject comparables to suit its convenience. If the Department has chosen to include Genesys International Corporation Ltd. as comparable on the ground that GIS is a notified ITES in the case of companies which are engaged in the business of processing information relating to insurance claims and the company engaged in the business of voice based call centre services, the Department cannot raise plea that the Genesys International Corporation Ltd. is functionally not comparable in case where the assessee is in the business of developing and exporting of computerized embroidery design, emblem, art works, drawings, badges, and other allied services. Thus, in the facts of the case and the decisions of Tribunal discussed above, we accept the contention of the assessee and remit the file back to the TPO to consider Genesys International Corporation Ltd. as one of the comparables. Accordingly, ground nos. 2 and 4 raised in the concise grounds of appeal are allowed. Capacity utilization - Held that:- The capacity utilization adjustment has to be granted where there has been under utilization or lower utilization of the capacity. In the facts of the present case, we deem it appropriate to remit the issue back to the file of Assessing Officer to decide this issue afresh after considering the submissions of the assessee, documents on record and decisions of the Tribunal. Accordingly, ground no. 2 raised in the appeal is allowed for statistical purpose.
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