TMI Blog2014 (1) TMI 892X X X X Extracts X X X X X X X X Extracts X X X X ..... ver, the qualitative analysis based on which, 20 comparables were finally selected from these 463 comparables, is not specified - there cannot be cherry picking for selecting unsuitability of comparables either, The assessee should have subjected all the comparables selected by the revenue to the same tests - Decided in favour of Assessee. - IT Appeal No. 2401/Ahd-2012 - - - Dated:- 28-6-2013 - Pramod Kumar And Kul Bharat , JJ. For the Appellant : Kanchan Kaushal. For the Respondent : T. Shankar. ORDER:- PER : Pramod Kumar By way of this appeal, the assessee appellant has called into question correctness of order dated 24th September 2012, passed by the learned Assistant Commissioner of Income Tax, Circle (1), Baroda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the difference between the level of risk borne by the comparables and the appellant. In doing so, the ld. DRP/AO erred in : - - falling to consider that the appellant is a routine captive service provider as against the comparable companies selected by the ld. TPO, which include entrepreneurial companies and hence an adjustment is necessary; - disregarding the provisions of Rules 10B(2) and 10B(3) read with Rule 10C of the Rules, 4. The ld. DRP/AO erred in not allowing the use of multiple year data as prescribed under Rule 10B(4) of the Income Tax Rules, 1962 ('the Rules') and determining the arm's length price on the basis of financial information of the comparables for the previous year 2007-08 which was ava ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cing Officer selected his set of comparables. Learned counsel submits that barring these two comparables, he has no issues with the comparables adopted by the Transfer Pricing Officer himself. Learned counsel made elaborate submissions on how these two companies are not appropriate comparables for the assessee before us, even though, for the reasons we will set out in a short while, it is not really necessary to deal with these contentions on merits. Suffice to say that the emphasis of the learned counsel has been that these two comparables adopted by the Transfer Pricing Officer cannot be treated as valid comparables for the purposes of this assessee. When asked whether all the comparables selected by the Transfer Pricing Officer have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that they have scrutinized only those comparables which they find to be against their interests. The very foundation of this exercise is not on the legally sustainable basis. The application of any test has to be on uniform and consistent basis. Learned departmental Representative also highlighted the fact that the process of narrowing down to 20 comparables by the assessee is not transparent, nor the assessee is able to show any objective criterion adopted for this process. The selection of comparables thus is also a cherry picking exercise, which is contrary to the scheme of things envisaged in the transfer pricing legislation. Learned Departmental Representative, however, did not oppose the prayer to remit the matter to the file of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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